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[2013] ZAGPPHC 318
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Maswanganyi v S (A811/2010) [2013] ZAGPPHC 318; 2014 (1) SACR 622 (GP) (1 November 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG, PRETORIA
Case No: A811/2010
DATE:01/11/2013
In
the matter between:
AA
MASWANGANYI
.................................................................
Appellant
vs
STATE
....................................................................................
Respondent
JUDGMENT
Bam
AJ
1.
The appellant was convicted in the Regional Court on one count of
rape and sentenced to life imprisonment. At the time of his
conviction in 2009, the appellant, in terms of the provisions of the
wording of the then section 304 of the Criminal Procedure
Act, had an
automatic right to appeal in a case where life imprisonment was
imposed, hence this appeal against both the conviction
and sentence.
2.
At the trial the appellant, accused 1, and his co-accused, were
legally represented. Both pleaded not-guilty to a count of rape
and a
count of robbery of a girl of 17, allegedly committed on 19 February
2005. The appellant's defence was a complete denial
of the
allegations against him.
(Accused
2 was eventually acquitted on both counts.)
3.
The complainant's evidence can be summarised as follows. On 19
February 2005, at about 5:30, on her way to a funeral, she came
across four boys. They grabbed her by the throat and threw her down.
One throttled her and her cell phone was taken. Three of her
assailants went away leaving the fourth, which had a bottle of beer
in his hand. This assailant threatened to hit her with the
bottle if
she would dare to scream. He then instructed her to walk to a bushy
area. There he raped her. She pointed out accused
2 in court as the
culprit. Whilst accused 2 was raping her, another one of her
attackers returned. (It later turned out to have
been the appellant.)
The latter produced a knife with which he threatened her. He then
also raped her. He further ordered her not
to look at him. When she
disregarded that instruction and looked at him he scratched her on
the right eye with his knife. After
the rape she called out to a
passing security guard. She was crying and the guard accompanied her
to a nearby house where a certain
Pastor Chabane resided. She told
Pastor Chabane what happened and the pastor took her home. She was
subsequently examined by a
Dr Mabuza. After having laid a complaint
with the police she went with the police to certain shebeens in
search of her attackers.
The search was unsuccessful. She, however,
on her own, kept looking for the culprits. About nine days later, at
a venue called
Mabunda lounge, she noticed the appellant. Upon
entering the lounge she also recognised the second accused. She then
alerted the
police and led them to the appellant and his co-accused.
She said she recognised the two from their features as well as the
fact
that they were still wearing the same clothes. She also
recognised a third member of the assailants.
4.
Pastor Edwin Chabane confirmed the complainant's evidence regarding
the report she made to him and the fact that she was crying.
He also
confirmed that the complainant said that she did not know her
attackers but that she would be able to identify them if
she would
come across them again.
5.
According to the evidence of Sergeant Mitchell, a forensic analyst in
the SAPS, he found that the DNA of the blood sample of
the appellant
matched the DNA mixture that was found in the sample taken from the
complainant.
6.
The required chain evidence was proved by the State by adducing the
evidence of Dr Mubiza, sergeant Tshabalala, Captain Masingi,
detective constable Shimangi and Ms Mahlangu.
7.
According to the medical evidence contained in the standard J88 form,
completed by Dr Mubiza, the doctor's conclusion was that
the injuries
sustained by the complainant were consistent with recent vagina
penetration.
8.
The appellant testified. He denied that he had intercourse with the
complainant. He told the court that on the date in question
he was at
his home with his uncle Kgotso Mupane. He said he knew accused 2 only
by sight. Pertaining to the matching DNA, he said
that it, apparently
the analysis, could have been a mistake. During cross examination he
said he was 20 years old at the time the
crime was allegedly
committed. He denied that he saw accused 2, whom he only knew by
sight, on that day. The trial magistrate also
put several questions
to the appellant. I will return to that issue later in this
judgement.
9.
The appellant's witness, Mr Kgotso Mpumane confirmed the appellant's
evidence as far as his alibi was concerned.
10.
The second accused also testified. He similarly denied having had
intercourse with the complainant.
11.
The court a quo found that the State had proved its case against the
appellant on the charge of rape and rejected the appellant's
denial
as not reasonably possibly true.
12.
In evaluating the evidence the court is obliged to consider the
evidence in totality in order to determine whether the State
has
proved its case beyond reasonable doubt or whether the accused's
exculpatory version may be reasonably possibly true. The court
must
further bear in mind that the accused does not have to prove his
innocence. It is trite that after having considered all the
evidence
a court finds that the State's case is unassailable, there is no room
for a finding that the accused's version may be
reasonably possibly
true. See S v Trainor 2003(1) SACR 35 SCA.
13.
The complainant was a single witness. Although section 208 of the
Criminal Procedure Act provides that a conviction may follow
on the
evidence of a single witness, the cautionary rule pertaining to the
evidence of a single witness applies.
The
standard cautionary rule in respect of evidence of identification,
also applies. This cautionary rule requires that the trial
court
should have been satisfied that the complainant was both truthful and
reliable.
14.
In this matter the identification was a so-called "dock
identification". There was no prior identification parade
held.
The latter manner of identification is however not per se
inadmissible but must be approached with the necessary caution.
In
this regard it must be taken into account that the complainant
already recognised the appellant, and pointed him out to the
police,
after having searched for her assailants for nine days.
15.
The submission made on behalf of the appellant that a further
cautionary rule applies by reason of fact that the complainant
was a
minor, has no substance. She was already 17 years of age at the time
the incident occurred. Mr De La Rey, appearing for the
appellant, was
unable to refer us to any authority supporting his submission in that
regard.
16.
The trial court found that the appellant was linked to the crime by
the DNA.
17.
The submission made on behalf of the appellant that the blood sample
taken from him was obtained unconstitutionally, is without
substance.
Section 37(l)(c) of the Criminal Procedure Act provides that the
police are allowed to take steps to have a blood sample
of an
arrested person taken. In this regard the police clearly acted in
accordance of the said provision. The DNA evidence, including
the
so-called chain evidence, was properly proved by the State and, in my
view, correctly accepted by the trial court.
18.
The argument that the magistrate entered into the arena by asking a
certain number of questions "in assisting the State
to prove the
vital elements of the case" stands to be rejected. The
magistrate, in my view was entitled to put the specific
questions,
the appellant is now complaining about, to the appellant. It has been
stated before, on many occasions, that a criminal
trial is not a
game. See R v Hepworth
1928 AD 265
at 277 and S v M 2006(1) SACR 155
SCA par 281. I could find no reason to say that the magistrate's
questioning was irregular, or
as submitted by Mr De La Rey, that the
magistrate assisted the State in proving the chain evidence.
19.
It follows that the evidence against the appellant proved by the
State was, in my view, unassailable. Accordingly, as alluded
to
above, there is no room for a finding that the appellant's version
may be reasonably possibly true. Therefore the trial court
was
correct in convicting the appellant on the charge of rape.
20.
With regard to the sentence of life imprisonment, it is trite that
the powers of this Court to interfere with the sentence imposed
by
the trial court are limited. An interference with the sentence by
this Court will be justified in the event of the trial court
having
erred in some or other material respect, or misdirected itself, or
imposed a sentence which is disturbingly inappropriate.
See S v Nkosi
2011(2) SACR 469 SCA.
21.
Mr Maritz appearing for the State, made the concession that due to
the fact that the charge sheet incorrectly referred to
section 51(2)
of the
Criminal Law Amendment Act 107 of 1997
, providing for a
minimum sentence of 10 years, instead of
section 51(1)
providing for
a life sentence, the court a quo erred in imposing a life sentence.
In this regard Mr Maritz referred to the case
of Mashinini v The
State (502/11) [ZASCA (21February 2012). However in the most recent
decision in that regard, S v Kolea 2013(1)
SACR 409 SCA, at 414
pars[17] and [18], the Court disapproved of the majority decision in
Mashinini, and ruled that the error in
the charge sheet, by referring
to
section 51(2)
instead of 51(1) of Act 107 of 1997, did not render
the proceedings invalid as far as the imposition of the life sentence
was concerned.
22.
The record in this matter reveals that before the State adduced any
evidence the magistrate enquired from the legal representatives
whether the minimum sentences provisions were explained to the
accused. Both representatives confirmed. During judgement on the
merits the magistrate referred to the evidence of the complainant,
that she was raped by more than one person, and found that her
evidence was to be accepted. In his judgment on sentence the
magistrate specifically stated that the complainant was raped by more
than one person and that the minimum sentence of life imprisonment
was applicable. In this regard it is remarkable that in addressing
the magistrate in applying for bail, Mr Chabalala, who appeared for
the appellant at that stage, at no stage referred to, or noted
an
objection against the imposition of a life sentence. It is further
remarkable that in the appellant's Notice of Appeal, containing
the
appellant's grounds of appeal, no mention is made of any misdirection
by the magistrate regarding the applicability of a life
sentence.
23.
In the appellant's heads of argument Mr de la Rey did not make any
submissions regarding sentence at all. It seems that Mr de
la Rey,
for an unknown reason, was under the impression that, pertaining to
sentence, he could address the Court orally. This situation
is
totally unacceptable and actually justified an order striking off the
appellant's appeal against sentence. However, we considered
it
expedient and in the interests of justice to dispose of the appeal on
sentence as well. For this reason we allowed Mr de la
Rey to address
the Court on sentence as well.
24.
In considering all relevant circumstances, including the submissions
made by counsel, there is no reason to find that the magistrate
was
wrong in finding that that life imprisonment was provided for in the
circumstances. The concession made by Mr Maritz in that
regard is
clearly not consistent with the law as stated in Kolea supra. This
issue also involves the right of an accused to a fair
trial. As
alluded to above, there is no indication that the appellant suffered
any prejudice.
25.
In mitigation the appellant told the court that he was 19 years of
age at the time the crime was committed and that he suffered
from
depression. The appellant was then referred for observation in terms
of sections 77 and 78 of the Criminal Procedure Act.
Subsequently a
psychiatrist report was handed in reflecting that the appellant was
fit to stand trial and that he, at the time
the crime was committed,
had the mental capacity to appreciate the wrongfulness of the deed.
26.
The trial Court considered all relevant issues pertaining to
sentence. That included the fact that the appellant was a first
offender, his personal personal circumstances and the fact that he
was 19 years of age at the time the crime was committed. These
circumstances were not found to be substantial and compelling
justifying a lesser sentence than the prescribed life sentence.
27.
It is correct that rape is a very serious offence. In this regard the
magistrate referred to what was said in S v Chapmann 1997(3)
SA 341
SCA. In the case of S v SMM 2013(2) SACR 292 at 299 par 17, the
Court, with reference to Chapman, said the following:
“
It
is necessary to reiterate a few self-evident realities. First, rape
is undeniably a degrading, humiliating and brutal invasion
of a
person's most intimate, private space. The very act itself, even
absent any accompanying violent assault inflicted by the
perpetrator,
is violent and traumatic infringement of person's fundamental right
not to be treated in a cruel inhumane or degrading
way."
28.
However, the appellant was 19 years of age when the crime was
committed. Although not a minor anymore, the appellant's young
age is
surely an aspect which should be a major consideration when the issue
of rehabilitation is considered. The fact that the
appellant was a
first offender is also, taken together with his age, on the
probabilities, indicative thereof that the probability
of
rehabilitation can not be discarded.
29.
The evidence did also not show that the complainant suffered any
physical injury. Section 51(3)(aA)(ii) of Act 107 Of 1997 provides
that an apparent lack of physical injuries to a complainant shall not
be regarded as substantial and compelling circumstances justifying
a
lesser sentence than the prescribed minimum. The lack of physical
injuries will however still be relevant and taken into account
when
the existence of substantial and compelling circumstances is
considered. See S v SMM supro, par [26]. On the other hand the
traumatic impact on the victim, although no victim impact report was
handed in, is surely an aggravating factor.
30.
After having considered all relevant issues, I am of the opinion that
the magistrate erred in not properly considering the issue
of
rehabilitation of the appellant, especially in view of the
appellant's age at the time the crime was committed. It seems, in
my
view, that good prospects exist that the appellant may be
rehabilitated and, accordingly, that life imprisonment is
disproportionate
and not the most appropriate sentence in the
circumstances. For these reasons this Court is empowered to interfere
with the sentence
imposed by the magistrate.
31.
I therefore suggest that the following order be made:
1.
The appeal against the conviction is dismissed.
2.
The appeal against the sentence succeeds.
3.
The sentence imposed by the trial court is substituted by the
following:
The
accused is sentenced to 20 years imprisonment.
AJ
BAM
ACTING
JUDGE OF THE HIGH COURT
I
agree.
A
HASSIM
ACTING
JUDGE OF THE HIGH COURT.
October
2013