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[2013] ZAKZPHC 59
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Mabaso v S (AR 250/12) [2013] ZAKZPHC 59 (1 May 2013)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO.: AR 250/12
In
the matter between:
MLUNGISI
PATRICK MABASO
and
THE
STATE
J U D G M E N T
KOEN
J
:
Introduction:
[1] I have had the
benefit of reading the judgment of D Pillay J. I agree with her that
the sentences imposed by the sentencing
court should be set aside and
with her reasons for doing so. However, in my view, in addition to
her reasons, the sentences also
fall to be set aside because of a
misdirection, which will be amplified later in this judgment.
Further, I disagree regarding
the length of the sentences to be
substituted for those set aside. It is necessary for me in this
judgment to repeat some of the
factual background, insofar as
relevant to my conclusions. I shall however endeavour to restrict
myself as much as possible in
that respect. I also do not repeat the
grounds advanced by D Pillay J on which she found that the sentences
imposed by the sentencing
court fall to be set aside. I associate
myself with her reasoning in that regard.
[2] The appellant was
convicted in the Regional Court
1
of two counts of rape and one count of robbery with aggravating
circumstances. Following the conviction, the prosecutor remarked
that:
‘as
the circumstances of this case prove that the complainant was raped
more than once by the accused the matter falls in
the ambit of Part
1 of Schedule 2 to the minimum Sentence Act (
sic
)’.
The learned magistrate
thereupon concluded:
‘Yes,
the two counts of rape are offenses as described in Part 1 of
Schedule 2’.
The
proceedings were for that reason stopped in terms of section 52 of
the Criminal Law Amendment 105 of 1997 (‘the Act’)
as
that section then provided, and the matter was transferred to the
High Court
2
for sentencing. The High Court took counts 1 (rape) and 3 (rape)
together for the purpose of sentence and sentenced the appellant
to
life imprisonment. In respect of count 2 (robbery with aggravating
circumstances) the appellant was sentenced to 15 years imprisonment,
which would run concurrently with the sentence on count 1. Leave to
appeal against conviction having been refused, the appellant
appeals
with the leave of the court
a
quo
against sentence only.
The Charge-sheet:
[3] The particulars
regarding the rapes in counts 1 and 3 are alleged in identical terms
in the annexures to the charge sheet, to
be:
‘In that upon or about
18-04-2004 and at or near Pieters Area in the Regional Division of
KwaZulu-Natal the accused unlawfully
and intentionally assaulted
MinahPhilileHlatshwayo an adult female and had sex or intercourse
with her without her consent’.
Count 1 was stated to be
read ‘with section 105 of 1997’ (
sic
).
Count 3 referred more correctly to the second count of rape having to
be read ‘with the provisions of Act 105 of 1997’.
In
respect of count 2, the record contains no reference that it had to
be read with the provisions of the Act.
The
proceedings in the Regional Court:
[4] The appellant was
legally represented throughout. When the first count was read out in
court by the prosecutor, the record
reflects that ‘the first
count is read with
Section …
(indistinct) Act 105 of 1997’
. When the
third count was read out the record reflects that it was to be ‘read
with the provision of
Act 105 of 1997’
.
The transcript of the proceedings does not refer to the provisions of
the Act relating to prescribed minimum sentences applying
to count 2,
or why and how it would operate in respect of counts 1 and 3. The
record also contains no indication that whatever
the effect of the
charges being read with the provisions of the Act would be, were
explained to the appellant. Nor was it confirmed
with the appellant’s
legal representative that he had explained the provisions of the Act
or its consequences to the appellant.
Specifically, the record does
not disclose any explanation, prior to the statements quoted in
paragraph 2 above following only
after conviction, why the provisions
of the Act might find application in respect of counts 1 and 3 and
what the effect thereof
might be.
The findings of the
sentencing court:
[5] The learned Judge
concluded that:
‘The fact
that the accused raped the complainant twice almost on the same
occasion triggers the minimum sentence provision
…’
The minimum sentence to
which reference is made in that context, is one of life imprisonment.
The minimum sentence prescribed by
the Act in respect of the robbery
with aggravating circumstances is 15 years. She further concluded
that there was ‘nothing
before this court to suggest
circumstances substantial enough to compel the court to deviate from
that sentence’.
The relevant factual
circumstances:
[6] The facts found
proven at the trial established that on the 18 April 2004 the
complainant, a 28 year old lady was walking along
Helpmekaar Road and
Pieters Road, KwaZulu-Natal when she was approached by the appellant
who purported to propose love to her.
She rejected his advances.
Her grabbed her arm, took out an Okapi knife, pointed it at her and
steered her in the direction of
a forest nearby. He removed her
wallet containing R15 in coins from a bag she was carrying. He
thereafter instructed her to undress
and to lie down on the ground.
Some of the thorns on the ground pierced her shoulders. She
complained and he then put her jacket
underneath her. He then
proceeded to have sexual intercourse with her against her will, but
he did not climax. After he had finished
he instructed her to get
dressed which she did. He removed her Nokia cell phone from her
jacket and kept it. After she had dressed
they got up and proceeded
walking into the forest. Whilst still in the forest he told her to
undress so that he could do it again.
She took off her skirt and
panties and he had sexual intercourse with her again. On this
occasion she felt wetness in her vagina
after he had finished. He
again told her to dress which she did. She asked for directions which
he provided and they parted. The
first encounter was at approximately
half past to quarter to six in the evening and they spent, on her
estimation, an hour and
a half together before they parted. She
experienced severe pain in the bladder on both occasions after the
intercourse but not
whilst intercourse was happening. This evidence
is consistent also with the findings of the doctor who examined her
the next day
and recorded ‘no physical injury’.
The
appellant’s contentions:
[7] Mr Butler who
appeared for the appellant maintained that no misdirection occurred
in sentencing the appellant. The only ground
on which he challenged
the sentence imposed by the court
a quo
was that it placed
insufficient weight on mitigating factors in favour of the appellant.
He relied on the personal circumstances
of the appellant as
constituting substantial and compelling circumstances. These
included that the appellant was 33 years of age,
was in a stable
relationship akin to marriage, was self-employed as the owner of a
tuck shop, supported his wife and two minor
children aged 12 and 3
years and that he did not harm the complainant physically, even
though he brandished a knife. Regarding
the offence, while
recognising the serious nature of all three counts, he submitted that
the complainant was a mature woman and
that it was not the worst form
of rape.
The requirement of a
constitutionally fair trial:
[8] In
S
v Ndlovu
3
the Supreme Court of Appeal held that where the State intends to rely
upon the sentencing provisions contained in the Act, a
constitutionally
fair trial
4
generally will demand that such intention be brought pertinently to
the attention of the accused at the outset of the trial. If
this is
not done in the charge sheet, then it must be done in some other
form, so that the accused is placed in a position to appreciate
properly, and in good time, the charge he faces as well as the
possible consequences. What is required is that the accused at
least
be given sufficient notice of the state’s intention to enable
the accused to conduct his or her defence properly and
in accordance
with such intention.
5
[9] It has also been
cautioned, correctly in my view, that it should not be simply assumed
because an accused was represented, that
the provisions of the Act
would pertinently have been brought to his attention.
6
[10] Formalism must
obviously not be placed above substance. Ultimately, the question is
whether the accused had a constitutionally
fair trial, which will
include the sentencing stage. Whether this right has been infringed
will require ‘a vigilant examination
of the relevant
circumstances.
7
If an accused is not advised adequately in the charge-sheet of the
intention to apply the Act, then the enquiry becomes one as
to
whether he was advised otherwise, either by such notification being
given by the State when he is required to plead, or possibly
the
application of the Act being raised
meromotu
by the presiding magistrate or judge, or knowledge of the application
of the Act on the part of an accused being evident from his
plea
explanation, or some other source. But proper and adequate
notification should not be assumed lightly. The Constitutional
imperative of a fair trial must be shown to exist, not assumed.
[11] What
seems clear is that a minimum prescribed sentence cannot be imposed
where the charge sheet makes no reference to the Act,
and neither the
accused nor the legal representatives had any advance warning that
such minimum legislation would be sought to
be made applicable.
8
[12] Where notification
of whatever form is given, the further enquiry is whether such
notification is adequate to establish that
an accused had a fair
trial. The jurisprudence on this aspect appears to be more
controversial. What the notification as a general
rule must cover is
at least some notice that it will be contended that the provisions of
the Act are applicable, and the consequences
of its application.
Hence ‘an accused faced with life imprisonment – the most
serious sentence that can be imposed
– must from the outset
know what the implications and consequences of the charge are.’
9
I am of the view that this requirement necessarily also entails that
an accused must be appraised of the particular provisions
upon which
reliance shall be placed, that is the particulars of the offence as
it appears in the relevant Part of Schedule II to
the Act, as well as
the sentence that will follow in the event of a conviction. It will
be of very little assistance to an accused
facing a rape charge to
know that he might face a life sentence, but not to know that this is
because it is contended that he had
raped the same complainant twice,
or because the complainant was under the age of 16 years, or
whichever other provision might
find application. A lack of such
detail will not ‘enable him to conduct his defence properly’.
[13] It
has been held that an accused should not only be informed clearly
that a certain minimum sentence may be imposed, and will
be sought,
but also that it may be a life sentence that he might face.
10
I agree with that view. It has however also been stated that this
rule should not ‘be expanded to require the prosecution
to list
all grounds it intends to rely on to invoke the relevant
minimum-sentence provisions’.
11
I respectfully disagree with that view as a general unqualified
statement. Absent adequate disclosure of the grounds upon which
it
might be contended at the end of the trial that a prescribed minimum
sentence may apply, an accused cannot properly prepare
his defence.
Count 2 –
Robbery with Aggravating Circumstances:
[14] There was no
indication in the charge-sheet or at the commencement of the
proceedings
12
that the state might seek to invoke the provisions of the Act in
respect of count 2. The Court
a
quo
accordingly erred in proceeding on the premise that the prescribed
minimum sentence in terms of the Act should follow in respect
of
count 2. This constituted a misdirection.
[15] The
sentence imposed on this count accordingly falls to be set aside and
an appropriate sentence determined afresh.
Counts 1 and 3 –
Rape:
[16] In regard to the two
counts of rape, the appellant was not advised that he would face a
possible life sentence, nor was he
properly notified of the
provisions of the Act which would be sought to be relied upon by the
State in the event of his conviction.
[17] A fair trial demands
that he should be advised of the possibility of a life sentence and,
in my view also the specific provisions
on which reliance might be
placed for such sentence to follow. He could be advised of these in
the charge sheet, or at the commencement
of the trial by either the
prosecutor of his own volition, or in response to questions from the
presiding officer enquiring on
what provisions of the Act reliance
would be placed.
In
casu,
there were simply the terse, general, vague and in respect of count 1
incomplete and nonsensical references in the charge sheet
13
.
A reading of the charge sheet did not indicate that a life sentence
could follow. Nor was it indicated which of various possible
provisions of the Act and more specifically Parts to schedule 2 to
the Act, varying from rape as contemplated in Part III, to rape
as
contemplated in Part I, and in the latter category, which of the
various possibilities ranging from ‘rape … when
committed … in circumstances where the victim was raped more
than once whether by the accused or by any co-perpetrator or
accomplice’, to the other categories including rape when
‘involving the infliction of grievous bodily harm’,
might
apply.
[18] The appellant was
simply never advised prior to conviction on what basis it would be
contended that the provisions of the Act
would apply and that he
could face life imprisonment. The failure to advise him of the
possibility of a life sentence is on its
own decisive. In the light
thereof the conclusion of the sentencing court that there were no
substantial and compelling circumstances
and that a sentence of life
imprisonment therefore followed, constituted a misdirection in
respect of the sentence on the two rape
counts.
[19] It might be argued
that an astute legal representative could be assumed pertinently to
have brought the possibility of life
imprisonment to the notice of
the appellant based on the victim having been raped more than once by
the appellant, in view of there
being the two counts of rape. But
that is not necessarily the only conclusion or most reasonable
conclusion one can draw. I am
not prepared to assume, as also in
S
v Mseleku,
that
this would necessarily have been brought to the notice of the
appellant by his legal representative.
14
[20] The important issue
always remaining is whether an accused received a fair trial. This
question might entail also whether if
he had been properly and
timeously advised of the specific part of the schedule on which
reliance was ultimately placed for the
provisions of the Act to
apply, whether his defence might have been conducted differently. The
appellant was confronted with two
rapes of the same victim on the
same day. One might therefore be tempted to perhaps think that even
if his attention had specifically
been brought to the relevant
provision(s), his defence might not have been presented differently.
That however remains an assumption,
and not one to be made where a
constitutional imperative, namely the right to a fair trial, is being
considered. It is not for
me to speculate on the exact respects in
which the defence might have differed or been presented differently.
Where a minimum sentence
of ten years is prescribed in respect of a
single rape but a life sentence for rape in any one of the
circumstances listed in part
I, the right to a constitutionally fair
trial demands that an accused should at the outset be appraised fully
and properly of the
case he has to meet, also on sentence.
[21] A sentencing court
should not simply proceed from the premise that the provisions of the
Act found application because of the
circumstances.
An appropriate
sentence:
[22] In concluding that
there were no substantial and compelling circumstances although the
appellant had not been properly appraised
of the application of the
Act, the respects in which it would be contended to apply and the
consequences of it applying, and concluding
that the minimum
sentences therefore followed in respect of the three counts, the
court
a
quo
in
my respectful view erred. However, irrespective of and in addition to
these considerations, the sentencing court in any event
erred in
concluding that there were no substantial and compelling
circumstance. These would include some of those advanced by Mr
Butler
and also alluded to in the judgment of D Pillay J. The sentences
imposed were disproportional
15
to the offences of which the appellant was convicted, thus making
sentences for less than the prescribed minima more appropriate.
In
this regard I am ad idem with the conclusion of D Pillay J that
lesser sentences than those imposed are appropriate. Where we
differ
is what lesser period of imprisonment would be appropriate.
[23] There is no doubt
that rape and also the robbery of which the appellant has been
convicted are very serious offences. The robbery
was however not
accompanied by any serious physical harm and was of items of relative
little value, albeit items often the subject
of robberies. The
invasive and humiliating nature of rape, the discrimination inherent
therein and the unfortunate prevalence thereof
in society generally
demanding that society be protected against this kind of conduct, all
require that a lengthy custodial sentence
be imposed. But these
considerations, also the discrimination inherent in rape, are not
aggravating factors and already recognized
in sentences that have
been imposed by our courts in the past and which serve as precedents
and guidelines to this court.
[24] I
have had regard to various decisions of the Supreme Court of Appeal
and other courts including inter alia
S
v Matyityi
16
,
Bailey v State
17
S
v Nkomo
18
,
Ndou v
S
19
,
S v
Abrahams
20
,S
v Mahomotsa
21
,
S v
Vilikazi
22
.
This
list is not exhaustive. The sentences imposed in these cases span a
wide spectrum, are divergent, but not surprisingly so as
the facts of
each matter differ. Ultimately, this court, having regard to the
aforesaid judgments must consider a balanced sentence,
consistent
with the principles established in those cases and being harmonious
insofar possible with the sentencing trends that
emerge from those
decisions.
[25] The two rapes were
more in the category of those in
S
v Mahomotsa
and
S
v
Nkomo,
although
the circumstances were not as aggravated as in
S
v Nkomo.
[26] Due cognisance must
be taken of the fact that the complainant was degraded, was dragged
into a bush, suffered the indignity
of being stripped of her clothing
and that she was abused not once but twice within a relative short
space of time, and was deprived
of certain possessions. This left
her traumatised, irrespective of whether physical external injuries
manifested. The anguish
she experienced is likely to remain with her
for a long time. That is the unfortunate result of all violent
crimes. The appellant
had not shown any remorse nor is there anything
to suggest any reduction in his moral blameworthiness. However, as
much as there
was no evidence to suggest that he be considered to be
material for rehabilitation, there was also nothing to suggest that
he would
not be suitable for rehabilitation.
The appellant’s
previous convictions:
[27] Reliance was also
placed by the State on the fact that the appellant was not a first
offender. The record, as is customary,
simply reflects that the
appellant admitted his previous convictions and sentences. Although
the SAP 69 was
ex
facie
the record handed in, it is not contained in any of the records of
the members of this court. From what can be gleaned from the
record,
the only possible relevant previous conviction
23
,
was one relating to abduction. The wife of the appellant testified
in mitigation. During her evidence the following question
was posed
by the learned Judge:
‘And he did something similar
years ago as well, he’s abducted somebody. Now when one talks
of adopt – abduction,
one usually abducts as opposed to
kidnapping when one wants the person for sexual favours. That was in
1997, I think. --- The
sentence was ’97 and he did it in ’96,
May.
Mmm.
So … (incomplete) --- At that time I was not staying with the
accused, we were – the preparations for me to
go and stay at
his house were being made at that time.
[28] During
the course of handing down sentence the learned Judge commented:
‘Now as far
as the accused is concerned, he is no stranger to these courts. The
fact that he was convicted of abduction suggests
that he has some
kind of propensity for committing sexual offences’.
[29] On the record, there
are no details as to what the previous conviction of ‘abduction’
entailed. Abduction is a
crime against parental authority and
consists in unlawfully taking a minor out of the control of his or
her custodian with the
intention of enabling somebody to marry
or
have sexual intercourse with that minor
24
.
Which alternative it was in relation to this previous conviction of
the appellant, is not clear. Furthermore this previous conviction
dated back some 7 to 8 years at the time that sentence was imposed on
10 May 2005. The particular circumstances and seriousness
of the
abduction are simply unknown. The record also does not disclose what
sentence had been imposed from which any conclusion
could possibly be
drawn. Although still relevant as a previous conviction, the
conclusion that the appellant ‘had some kind
of propensity for
committing sexual offences’ is, in the circumstances, with
respect, harsh and not justified.
Concurrence of
sentences:
[30] The sentences
imposed in respect of the two rapes and the robbery should run at
least partly concurrently to ameliorate the
cumulative effect of the
sentences on the three counts, and also because they arose from
essentially the same event.
Order:
[31] I accordingly
propose that the following order be granted:
1. The appeal against
sentence succeeds.
2. The
sentences imposed by the court
a quo
are set aside and
replaced with the following:
(a) On count 1, rape, the
accused is sentenced to fifteen (15) years imprisonment;
(b) On
count 2, robbery with aggravating circumstances the accused is
sentenced to eight (8) years imprisonment;
(c) On
count 3, rape, the accused is sentenced to fifteen (15) years
imprisonment;
(d) The sentences are all
antedated to 10 May 2005.
(e) It is directed that
the sentence on count 2 will run concurrently with that on count 1;
(f) It
is directed that ten (10) years of the sentence on count 3 will run
concurrently with that on count 1;
(g) The
effective term of imprisonment is therefore twenty (20) years.
KOEN J
_______________________
I AGREE
PLOOS
VAN AMSTEL J
_______________________
DATE
OF HEARING: 6 FEBRUARY 2013.
DATE
OF DELIVERY: MAY 2013.
FOR
APPELLANT: J BUTLER
PMB
JUSTICE CENTRE: 033 394-2190
FOR
RESPONDENT:
THE
DIRECTOR OF PUBLIC PROSECUTIONS 033 394-6891
1
Hereinafter
also referred to as ‘the trial court’.
2
Hereinafter
referred to as ‘the sentencing court’.
3
2003
(1) SACR 331
(SCA)
4
Contemplated
in s35(3) of the Constitution.
5
S
v Peu
2012 (2) SACR 625
(GNP) at paragraphs 5 and 6
6
S
v Mseleku
2006 (2) SACR 574
D at 581a-e; S v Peu (supra) at para
[6].
7
S
v Ndlovu
2003 (1) SACR 331
(SCA) and
S v Legoa
2003 (1)
SACR 13
(SCA) at para [21].
8
S
v Tshabalala
[2007] ZAGPHC 168
;
2008 (1) SACR 486
T.
9
S
v Makatu
2006 (2) SACR 582
(SCA) at para [7].
10
S
v Peu
2012 (2) SACR 625
(GNP) at para [5].
11
S
v Peu (supra) at para [7].
12
Indeed
during the whole of the proceedings before the Regional court until
after conviction when the transfer of the matter to
the High Court
was sought.
13
I
shall for present purposes proceed on the basis that the reference
to ‘section 105 of 1997’ in count one would have
been
understood by the appellant as a reference to ‘Act 105 of
1997’.
14
See
also S v Peu
2012 (2) SACR 625
(GNP) at para [7] and Maake v
Director of Public Prosecutions
[2011] 1 All SA 760
(SCA) at 766.
15
S
v Vilakazi
2009 (1) SA 552
(SCA) at 560
16
2011
(1) SACR 40
(SCA).
17
[2012]
ZASCA 154.
18
2007
(2) SACR 198.
19
[
2012]
ZASCA 148
20
2002
(1) SACR 116 (SCA)
21
2002
(2) SACR 435
(SCA)
22
2009
(1) SACR 552
(SCA).
23
The
others were of possession of an unlicensed fire arm,
24
See
Milton
South African Criminal Law and Procedure
Volume II
(3
rd
edition) page 533.