S v Sikhipha (262/05) [2006] ZASCA 73; 2006 (2) SACR 439 (SCA) (30 May 2006)

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[2006] ZASCA 73
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S v Sikhipha (262/05) [2006] ZASCA 73; 2006 (2) SACR 439 (SCA) (30 May 2006)

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THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 262/05
Reportable
In
the matter between
NTSHENGEDZENI
SIKHIPHA Appellant
and
THE
STATE Respondent
Coram
: SCOTT, LEWIS, VAN HEERDEN JJA
Heard:
12 May 2006
Delivered:
30 May 2006
Summary: Trial of an unrepresented accused not vitiated by
irregularity: sentence of life imprisonment for the rape of a child
of 13 set aside and replaced with sentence of 20 years’
imprisonment.
Neutral citation: This case may be cited as Sikhipha v State
[2006] SCA 71 (RSA)
JUDGMENT
LEWIS JA
[1] The appellant was convicted in the regional court, Venda, of the
rape of a thirteen-year old girl. He was sentenced in terms
of s
51(1) of the Criminal Law Amendment Act 105 of 1997 (‘the Act’)
to life imprisonment by the High Court, Venda (Hetisani
J). The
appeal against both conviction and sentence lies with the leave of
this court.
[2] In so far as conviction is concerned, the appellant argues that
it should be set aside on the basis of a number of trial
irregularities:
first, that the appellant was unrepresented, and his
legal rights were not properly explained to him; second, that a
medical report
(Form J 88) was handed in and accepted as evidence
when the appellant did not fully appreciate its significance; third,
that the
presiding magistrate did not establish that the complainant
and her brother, both minors at the time of the trial, and who
testified
for the State, understood the nature of the oath before
giving evidence; and fourth, that the regional magistrate failed to
assist
the appellant in the conduct of his trial and cross-examined
the appellant himself.
[3] Before dealing with these I shall deal first with the evidence
leading to conviction. The complainant, who was 14 at the time
of the
trial, testified that she lives in a house in the D… Location,
Venda. On 10 January 2002, when she was 13 years old, she
was called
by her neighbour, the appellant, who asked her to bring him some
water. When she did so, he grabbed her and dragged
her onto the grass
outside his house. She screamed and he covered her mouth. He
undressed her, lay on top of her and had sexual
intercourse with her.
He raped her, she said.
[4] Her brother, P., testified that he had passed by the house and
seen the appellant lying on top of the complainant outside the

appellant’s house. He had run off to report the matter to the
deputy headman of the village. The latter told him to report the

incident to the police. P. had gone home before going to the police
and had encountered his and the complainant’s mother. He
informed
his mother of what he had seen. The mother testified that she had
gone to speak to the deputy headman too. She returned
home, and asked
the complainant what had happened. The complainant refused to tell
her.
[5] P. telephoned the police, as apparently did the deputy headman,
and the police, after examining the complainant, took her to

hospital. A doctor confirmed that she had had sexual intercourse:
her vulva was swollen, bruised and covered with a ‘whitish’

‘foul-smelling’ discharge, her labia minora were bruised with
slight bleeding and her hymen was absent. I shall revert to the
J 88
form signed by him.
[6] The appellant, who had pleaded not guilty and had proffered no
plea explanation, denied that he had sexual intercourse with
her.
His cross-examination consisted in the main of questions about how
she had brought water to him, and the colour of the receptacle
she
claimed to have taken into his yard.
[7] The magistrate found the appellant guilty of rape, and referred
him, in terms of s 52 of the Act, for sentencing to the high
court: a
regional court does not have jurisdiction to impose a sentence of
life imprisonment, required by s 51(1) of the Act,
read with Part
I of Schedule 2 (rape committed where the victim is under 16 years of
age). Hetisani J, after hearing evidence in
mitigation, imposed a
sentence of life imprisonment on the appellant.
[8] I turn now to the procedural irregularities which the appellant
argues vitiate the trial in the regional court. At the outset
it
should be recalled that whether an irregularity results in an unfair
trial depends on whether the accused has been prejudiced,
a principle
restated recently in
Hlantlalala v Dyantyi NO
1
and
S v May
.
2
[9] The appellant was unrepresented and elected to conduct his own
defence. His right to legal representation and his right to
legal
aid were not explained to him properly, the appellant argues. The
record of the regional magistrate’s notes shows, however,
that
‘Accused is explained of his rights to legal representation and
legal aid, and he elects to conduct his own defence’.
The
prosecutor repeated at the start of the trial that ‘the accused
elected to conduct his own defence’ and the court confirmed
this
with the appellant. There is no evidence to suggest that the
appellant was not apprised of his rights (although the argument
is
made that this was the case), nor any part of the record that shows
that he was prejudiced by the absence of a legal representative.
I
consider therefore that there was no irregularity in this respect.
[10] It should be said, however, that where an accused is faced with
a charge as serious as that of rape, and especially where
he faces a
sentence of life imprisonment, he should not only be advised of his
right to a legal representative but should also
be encouraged to
employ one and to seek legal aid where necessary. It is not desirable
for the trial court in such cases merely
to apprise an accused of his
rights and to record this in notes: the court should, at the outset
of the trial, ensure that the
accused is fully informed of his rights
and that he understands them, and should encourage the accused to
appoint a legal representative,
explaining that legal aid is
available to an indigent accused.
3
[11] The second irregularity alleged is that the J 88 form was handed
in with the appellant’s consent although he did not appreciate
its
import. Although he was advised as to what it said, the appellant
argued, he did not understand its implications. The basis
of this
submission is that at the commencement of the trial, after the charge
had been put to him, the appellant asked whether
there was a document
stating that he had had sexual intercourse with the complainant. The
regional magistrate replied that he did
not know. The appellant
stated that he denied that he had intercourse with the complainant.
The court continued to explain the
charge, and competent verdicts.
The State then asked for leave to hand in the J 88, stating that the
contents had been explained
to the appellant and that he had no
objection to its being handed in. The appellant argues that this
supports the claim that he
did not understand its implications. I do
not see how the proceedings show that the appellant did not
understand the legal implications
of the form. He denied having
intercourse and of course the J 88 does not refer to any suspect.
[12] Even if the appellant had not fully appreciated that the form
was evidence that the complainant had had intercourse, and that
she
had been bruised in the process, there was no basis for any objection
to the handing in of the form, as counsel for the appellant
was
constrained to concede. Whether he understood its legal implications
or not is thus irrelevant. The appellant argues also,
however, that
the J 88 was defective in that it was not dated and does not state
when the complainant was examined. However, the
form is stamped with
a date and accompanied by a certificate from the doctor stating that
he had examined the complainant and that
the facts set out there were
determined by him after the examination. The certificate is dated 11
January 2002. The complainant
testified that she was examined on the
same day as she had been raped, 10 January. I do not consider that
there is anything wrong
with the completion of the paperwork the day
after the examination. The appellant is not in any way prejudiced by
the acceptance
into evidence of the J 88 form. Moreover, the doctor’s
certificate and J 88 form would in any event have been admissible,
and
prima facie proof of its contents, in terms of s 212(4) of the
Criminal Procedure Act 51 of 1977. Again, there is no irregularity

in this respect.
[13] The third irregularity alleged is that the regional magistrate
did not enquire whether either the complainant or her brother,

understood the oath that was administered to them, and that therefore
their evidence should have been inadmissible. There is no
substance
in this complaint. Section 164 of the Criminal Procedure Act permits
a presiding officer to dispense with the taking
of an oath where it
appears that a child does not understand the nature and import of the
oath. In such circumstances an enquiry
should be held as to the level
of understanding of the witness, and the presiding officer must
admonish the child to tell the truth.
But a formal enquiry is not
necessary, as long as the presiding officer has formed an opinion
that the witness does not understand
the meaning of the oath.
4
In this case, however, the oath was administered to both the
complainant, who was 14 at the time of the trial, and her brother,

whose age does not appear from the record. The situation is
different. There is no requirement that the trial court must formally

enquire whether a witness understands the oath, nor that the
presiding officer must record that fact.
5
Of course a presiding officer must be satisfied that a witness does
understand the oath, but he or she may form a view in this
regard
without formally making an enquiry or recording his or her view.
There is nothing at all in the evidence to suggest that
either the
complainant or her brother were ignorant of the import of the oath.
[14] The fourth irregularity complained of is that the regional
magistrate did not assist the appellant, but rather descended into

the arena and in effect cross-examined him. The instances cited by
the appellant do not bear out the complaint. It is true that
the
court asked the appellant questions when he was cross-examining the
complainant, including whether he had inserted his penis
into the
complainant’s vagina. Such questioning was not merely a
clarification of a question or of an answer. But the appellant
did
not give an answer that in any way prejudiced him. Moreover, he was
appropriately assisted by the regional magistrate when
he gave
evidence and was cross-examined. Accordingly there is no substance in
this complaint. There is thus no foundation for
any of the
complaints about irregularities, and the appeal against the
conviction fails.
[15] Hetisani J imposed a sentence of life imprisonment on the
appellant in terms of s 51(1) of the Act after concluding that there

were no ‘substantial and compelling circumstances’ that justified
the imposition of a lesser sentence.
6
Circumstances were substantial and compelling, he concluded, only
when exceptional: they would be ‘very rare to find’ in a
case
like this.
[16] The judge misunderstood what is meant by substantial and
compelling circumstances. This court, in
S v Malgas
,
7
held that in determining whether there are substantial and
compelling circumstances, a court must be conscious that the
legislature
has ordained a sentence that should ordinarily be imposed
for the crime specified, and that there should be truly convincing
reasons
for a different response. It is for the court imposing
sentence to decide whether the particular circumstances call for the
imposition
of a lesser sentence. Such circumstances include those
factors traditionally taken into account in sentencing – mitigating
factors.
Of course these must be weighed together with aggravating
factors. But none of these need be ‘exceptional’.
[17] In my view the judge below committed a serious misdirection in
looking only for exceptional circumstances, and in failing
to have
regard to mitigating factors. The sentence of life imprisonment must
therefore be set aside, and this court must consider
an appropriate
sentence mindful of the sentence that the legislature has considered
appropriate for the rape of a child under 16
– life imprisonment.
[18] Factors in mitigation include the fact that the appellant is a
first offender; that he has a wife and children dependent upon
him;
that he has a trade (he is a bricklayer) and makes a living from his
work; that he was 31 years old at the time of the trial,
and that he
is capable of rehabilitation. Moreover the complainant was not
seriously injured. However, no evidence was led as to
the
psychological consequences for her of the rape. But there can be no
doubt that the rape was traumatic for her. She was only
13 when a
neighbour, a married man, more than twice her age, dragged her across
his yard and had sexual intercourse with her against
her will. Her
injuries may have been minor, but she must have been severely
affected.
[19] The sentence of life imprisonment required by the legislature is
the most serious that can be imposed. It effectively denies
the
appellant the possibility of rehabilitation. Moreover, the mitigating
factors are not speculative or flimsy. In my view, life
imprisonment
is not a just sentence for the appellant. However, a lengthy sentence
of imprisonment is warranted. I consider that
a period of 20 years’
imprisonment will send a message to the community that rape, and
especially the rape of a young girl, will
be visited with severe
punishment. It will send a strong deterrent message.
[20] In conclusion I wish to refer to what I regard as unacceptable
conduct on the part of the judge below. In passing sentence
he
remarked that he did not know what had driven the appellant to rape a
young girl. He continued: ‘I must say if you had raped
a woman
above or around 20, the court would say oh, well, she might have
tempted him and so on and so forth.’ This statement
suggests a
belief held by the judge that women entice men to rape them simply by
virtue of being women. Perhaps that is not what
the judge meant to
imply. But courts should be more cautious in their expression. It is
never appropriate to suggest that men are
entitled to have sex with
women against their will simply because they are women, or because
they have dressed or behaved seductively.
A court should not condone
such a view let alone express it.
[21] The appeal against sentence is upheld. The sentence of the court
below is set aside and replaced with the following:
‘The accused is sentenced to 20 years’ imprisonment.’
_____________
C H Lewis
Judge of Appeal
Concur:
Scott JA
and Van Heerden JA
1
1999 (2) SACR 541
(SCA)
paras 8 and 9.
2
2005 (2) SACR 331
(SCA) paras 7 and 8.
3
See
S
v Mbambo
1999 (2) SACR 421
(W) at
428h-i.
4
See for example
S
v B
2003 (1) SACR 52
(SCA) and
Director of Public Prosecutions,
KwaZulu Natal v Mekka
2003 (2) SACR 1
(SCA).
5
S v Chalale
2004
(2) SACR 264
(W) para 3.
6
Section 51(3) of the Act.
7
2001 (1) SACR 469
(SCA).