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[2012] ZAGPPHC 137
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Masilo v S (A456/2011, CC366/2001) [2012] ZAGPPHC 137 (8 June 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
/ES (REPUBLIC OF SOUTH AFRICA)
CASE
NO: A456/2011
CC366/2001
DATE:08/06/2012
IN
THE MATTER BETWEEN:
SOLOMON
MASILO
..............................................................................................
APPELLANT
AND
THE
STATE
........................................................................................................
RESPONDENT
JUDGMENT
PRINSLOO,
J
[1]
On 28 May 2001 the appellant, then about 29 years old, was convicted
in the Rustenburg regional court on one count of rape.
[2]
On the same date, the learned regional magistrate, in terms of
section 52(1 )(b) of Act 105 of 1977, stayed the proceedings
and
referred the case to the High Court for sentence.
[3]
On 7 March 2002 the case came before the Local Circuit Division for
the Western Circuit of the High Court for sentence purposes.
Although
it does not appear from the record, I assume that the learned judge,
before imposing sentence, found that the proceedings
before the
learned regional magistrate were in accordance with justice and that
the conviction was in order.
[4]
On the same day, 7 March 2002, the appellant was sentenced to
imprisonment for life.
[5]
On 17 March 2010, the appellant applied to this court for leave to
appeal against the conviction and the sentence. This was
more than
eight years after the sentence had been imposed.
The
application came before VAN DER MERWE, DJP because the learned judge
who had imposed the sentence, SCHABORT, J, had in the interim
retired.
[6]
The application for leave to appeal against both the conviction and
sentence was refused.
[7]
On 31 August 2010, the Supreme Court of Appeal granted leave to
appeal to this full court against both the conviction and the
sentence.
[8]
The appeal came before us on 9 May 2012.
[9]
In the regional court, the appellant was legally represented and he
pleaded not guilty.
In
the circuit court, when he was sentenced, and also in this court,
when he applied for leave to appeal, the appellant was legally
represented.
[10]
Before us, Mr Mojuto appeared for the appellant and Ms Van Vuuren
appeared for the state.
[11]
For illustrative purposes, it is convenient to quote the wording of
the charge-sheet: "Verkragting:
Dat
die beskuldigde skuldig is aan die misdryf van verkragting. Deurdat
op of omtrent 14 Oktober 1999 en te of naby Kroondal, Rustenburg
in
die streekafdeling van Noord Transvaal, die beskuldigde wederregtelik
en opsetlik vleeslike gemeenskap met Dinah Monyebodi (13
jr) 'n
vrouepersoon sonder haar toestemming en teen haar wil en sin gehou
het."
[12]
There was also an alternative charge containing an allegation that
the appellant had contravened the provisions of section
14 of the
Sexual Offences Act, 23 of 1957, for having had sexual intercourse
with the 13 year old complainant, being a female person
under the age
of 16 years.
The
appeal against the conviction
[13]
When the appellant pleaded not guilty in the regional court, and
given the opportunity to offer a plea explanation the following
was
said on behalf of the appellant (then the accused) by his legal
representative:
"Beskuldigde
plaas spesifiek identiteit in geskil en die beskuldigde maak verder
van sy swygreg gebruik."
The
case turned on the question of identity.
The
fact that the complainant was attacked and raped, as described by
her, was therefore not in dispute.
[14]
The first state witness was the complainant, Dinah Monyebodi.
In
October 1999 she was a pupil in Grade 7 in the Durolong Intermediary
School.
On
14 October 1999, at about 15:00, she was walking home from school.
She was alone. A man wearing a garment like a dress, and also
with a
garment, like a dress, wrapped over his head and tied below the chin,
approached her. He had a knife in his right hand.
It was about 9
inches long. The complainant tried to run away but she stumbled. At
that point the attacker was about four metres
away. She also
recognised the attacker as a man who had confronted her earlier that
morning when she was on her way to school.
He asked her for her name
which she' refused to give him. He then said that he would send the
"dindella straatseuns"
to her "en die gaan my
regmaak". When she saw the attacker in the morning he did not
wear the dress but a blue overall.
He also did not have the wrapping
around his head. She managed to identify him during the morning
confrontation and she confirmed
his presence in the court.
[15]
When she tried to flee, the attacker caught her and dragged her
between some trees. He dragged her by the belt around her school
uniform. He said he would kill her if she were to scream. He removed
her panty, and his underpants. He flung her to the ground
and
inserted his penis into her vagina. While he was having intercourse
with her, he held her arms above her head. Afterwards he
told her not
to use that particular road again and if he saw her there he would
kill her.
[16]
The complainant went home and reported the attack to an elderly lady,
called Anna. They summoned the police. The police took
the
complainant and her mother to the police station. Some social workers
took them to the doctor. The doctor still had to remove
pieces of
dirt from her vagina as she had been raped on the ground. The social
workers took them home. She testified that when
she first got home
she was crying when she reported the incident to Anna. She was asked
to describe the attacker and did it as
follows:
"Ek
het vir haar gese die persoon is so lig van kleur. Sy tande is nie
heel nie. Hy het puisies in die gesig."
The
missing teeth were upper teeth, and to the right. In
cross-examination she said that the appellant also had a scar which
she
noticed on his right cheek during the early morning encounter. He
also had a moustache. During the afternoon attack, she could not
see
the scar on the cheek because of the garment wrapped around the
attacker's head. In cross-examination it was put to the complainant
that the appellant was not the person who attacked her. She insisted
that he was. She was subjected to intensive and lengthy
cross-examination.
In my view she was not in any way discredited. She
also said that, in addition to the moustache, the attacker had a
small beard
('"n bokbaardjie").
[17]
Dr Stephanus Johannes Paulus Kruger was the doctor who examined the
complainant. The J88 medical form which he completed on
14 October
1999, the day of the attack, when he examined the complainant, forms
part of the record which was presented to us.
[18]
The doctor said the following:
"By
ondersoek van haar skaamdele, laterale vars skeure in die hymen.
Slymvlies van die piremium area is daar fn 1cm lang skeur.
Sy het
redelik swaar gebloei, rooi helder bloeding. Bloedvlekke ook versprei
van die skaamdele na die binne waaie van die been,
op beide bene. ...
Die pasient was verwys na die hospitaal vir steke en vir
behandeling."
The
doctor said that his findings would support a conclusion that the
complainant had been raped earlier that particular day. -
The doctor
confirmed the contents of his medical report. He was not
cross-examined.
[19]
Fransinah Monyebodi was called to testify as the mother of the
complainant. The complainant was born on 4 February 1986 so
that she
would have been 13 years old on 14 October 1999 when the attack took
place.
[20]
The complainant came from school at about 15:00 on that particular
day. She was bleeding. She reported that she had been raped.
She bled
from her private parts. The elderly lady, Anna, was also residing
with the complainant and the witness at the time. Anna
was present
when the rape was reported. The complainant also told her about the
encounter earlier in the morning with the same
attacker. She told
them about the dress that the attacker wore at the time of the rape
and the report given to this witness corresponded
with the evidence
given by the complainant during her testimony.
[21]
The mother then telephoned the police, and at one stage the
complainant also described the appearance of the attacker to her
uncle, Mike Monyebodi, the brother of the witness who is the mother
of the complainant. The uncle went in search of the attacker,
located
him and brought him home only for the complainant to identify him.
[22]
The description which the complainant gave to the mother -of the
attacker was:
"Sy
het gese hy is 'copper colour' van kleur. Hy is kort. Hy is skraal.
En hy het van sy tande verloor, sy botande. En die
persoon het
puisies in sy gesig gehad. Op sy gesig."
[23]
The uncle, Mike Monyebodi, corroborated the evidence of the
complainant and her mother as to the description the complainant
gave
to the witness about the appearance of the attacker.
The
witness went in search of the attacker. He determined that his name
was Solly. He took the attacker with him, and showed him
to the
complainant who identified him.
Before
he went in search of the attacker, the complainant described the
attacker to her as "Sy het gese hy is skraal. Gemiddeld
lank. Hy
is so bietjie lig van kleur. Hy het 'n bokbaard en 'n snor."
When
he confronted the attacker he indeed did have a "bokbaard"
and a moustache. His appearance fitted that which was
given to him by
the complainant.
[24]
Not one of the state witnesses was, in my view, discredited in
cross-examination.
[25]
The appellant testified that he knows nothing about the attack. He
confirmed that Mike came and apprehended him. Shortly after
he was
told to enter Mike's vehicle, members of the community tried to
assault him. He said on the day in question he was at home
weaving
baskets. He was in the presence of another young man. This person was
not called to testify.
[26]
During his testimony, the magistrate also inspected the face of the
appellant and recorded the following features: two of his
upper teeth
were missing on the left hand side. On the right cheek, there was a
scar of half a centimetre. There were other scars
on the face as
well. There were marks all over the face which may have been caused
by acne.
[27]
In his judgment, the learned regional magistrate carefully analysed
all the evidence. He also described the appearance of the
appellant
in court:
"Hy
is korterig. Hy is skraal en nie lank nie. Hy is lig van kleur. Daar
is voortande uit. Hy het merke van een of ander aard
aan sy gesig,
hetsy dit puisies is, al dan nie."
The
learned regional magistrate also took note of the fact that the
complainant immediately identified the appellant when he was
brought
to her by Mike. On considering the evidence as a whole, the learned
magistrate convicted the appellant. I can see no material
misdirection on the part of the learned magistrate which will allow
this court of appeal, with its limited powers, to interfere
with the
factual findings of the magistrate under these circumstances. See R v
Dhlumayo
1948 2 SA 677
(AD).
[28]
In the result, I am of the opinion that the appeal against the
conviction falls to be dismissed.
The
appeal against the sentence
[29]
The sentencing procedure was handled in terms of the provisions of
the Criminal Law Amendment Act, Act 105 of 1997, which came
into
operation on 13 November 1998, almost a year before this particular
offence was committed in October 1999. The proceedings
were stopped
by the learned magistrate in terms of the provisions of section 52 of
Act 105 of 1997 ("the Act") and the
learned judge imposed a
sentence on the strength of the provisions of the Act. He found that
there were no substantial and compelling
circumstances and under the
circumstances imposed the prescribed minimum sentence of life
imprisonment.
[30]
The case is, however, complicated by the fact that, in the
charge-sheet, there was no mention whatsoever of the provisions
of
the Act. The main charge was crafted along the lines of an "ordinary"
common law rape. The alternative charge, as
I have said, only
referred to the Sexual Offences Act of 1957. During the pleading
proceedings, there was no mention made of the
Act. There is no clear
indication that the appellant's legal representative would have been
alive to the provisions of the Act
at the time and, for that matter,
that he explained the consequences that may arise for the appellant,
if, for instance, the prescribed
minimum sentence had to be imposed.
[31]
In S v Makatu 2006(2) SACR 582 (SCA) the appellant was also sentenced
to imprisonment for life in terms of section 51(1) of
the Act but the
indictment only referred to section 51(2), which makes no provision
for a sentence of life imprisonment.
In
paragraphs 3 and 7 of the judgment, the learned Judge of Appeal says
the following:
"The
appellant argues that the imposition of a sentence in terms of
section 51(1), when the indictment refers to section 51(2),
is a
blatant misdirection. Even if the murder had indeed been premeditated
- a question to which I shall return - an accused has
the right to
know at the outset what charge he has to meet. The State properly
conceded this point. Since the enactment of the
Act this Court has
held that it is incumbent on the State to specify the case to be met
in such a way that an accused appreciates
properly not only what the
charges are but also the consequences."
Later
on the learned judge states:
"However,
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. Such knowledge inevitably
dictates decisions made by an accused, such
as whether to conduct his
or her own defence; whether to apply for legal aid; whether to
testify; what witnesses to call; and any
other factor that may affect
his or her right to a fair trial ..."
[32]
In Mashinini v State (502/11)
[2012] ZASCA 1
(21/2/2012) similar
circumstances to those described in the previous paragraph prevailed.
The majority of the court came to the
same conclusion. The majority
expressed the view that it was an appropriate case for the imposition
of life imprisonment, involving,
as it did, a gang rape but reduced
the sentence to one of ten years imprisonment, being the minimum
sentence prescribed in terms
of section 51(2) of the Act. In a
dissenting judgment, PONNAN, JA, concluded that he would dismiss the
appeal, but we are bound
by the decision of the majority.
[33]
In the present case, where no reference was made at the outset to the
Act at all, it seems to me that we are at large to impose
a sentence
on the basis that the Act does not apply at all.
[34]
As to the personal circumstances of the appellant, he was 29 years of
age when the crime was committed. He was unmarried with
no children.
He passed standard 5 and left school in 1986. His parents separated
when he was young and he lived with his mother
who was then employed.
She passed away in 1997. Thereafter the appellant lived with
relatives. He was employed at a platinum mine
as a labourer in 1994
and 1995 whereafter he became unemployed doing only temporary jobs.
In 1999, obviously before this offence
was committed, he started
taking lessons to do art and craft and in due course opened his own
workshop where he manufactured artifacts
and sold them. This included
baskets and other objects.
[35]
He exhibited no remorse because he tried to offer a false version to
the court. During the sentence proceedings in the circuit
court,
however, it was recorded on behalf of the appellant that he was
expressing remorse. By way of demonstrating aggravating
factors, the
state argued that the appellant used a knife to threaten his victim
and that there also appeared to be an element
of premeditation and
planning associated with what he did. The particular crime is
prevalent all over the country.
[36]
To this should be added, in my view, the fact that the victim was
only 13 years old.
[37]
After due reflection, I have come to the conclusion that a sentence
of fifteen years imprisonment would be appropriate in this
case. As
it happens, the sentencing jurisdiction of the regional court, at the
time when the appellant was convicted, was also
fifteen years, after
it was increased to that limit on 7 October 1998, according to what
was conveyed to us during the hearing
by counsel for the state.
[38]
In the result, I would make the following order:
1.
The appeal against the conviction is dismissed and the conviction is
confirmed.
2.
The appeal against the sentence is upheld.
3.
The sentence imposed by the court below is set aside and replaced
with the following: "The accused is sentenced to fifteen
years
imprisonment."
4.
In terms of
section 282
of the
Criminal Procedure Act, 51 of 1977
,
the sentence is antedated to 7 March 2002.
WRC
PRINSLOO
JUDGE
OF THE NORTH GAUTENG HIGH COURT
A456-2011
I
agree
MW
MSIMEKI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
I
agree
A
M L PHATUDI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
HEARD
ON: 9 MAY 2012
FOR
THE APPELLANT: J M MOJUTO
INSTRUCTED
BY: PRETORIA JUSTICE CENTRE
FOR
THE RESPONDENT: M J VAN VUUREN