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[2012] ZAGPPHC 106
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Chochoe v S (A854/11) [2012] ZAGPPHC 106 (13 June 2012)
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT, PRETORIA)
CASE NO: A854/11
DATE:13/06/2012
In
the matter between:
LUCAS
CHOCHOE
..............................................................................................
APPELLANT
VS
THE
STATE
.......................................................................................................
RESPONDENT
JUDGMENT
MSIMEKI,
J
[1]
On 8 May 2003 the Appellant stood trial in the Regional Court,
Klerksdorp on one count of rape and one count of malicious injury
to
property. Duly represented, he pleaded not guilty to the charge of
rape and guilty to the charge of malicious injury to property.
A
statement in terms of section 112 (2) of the Criminal Procedure Act
no. 51 of 1977 ('the
CPA')
which was tendered on behalf of the accused, was read into the court
record.
[2]
On 16 June 2003 the appellant was convicted as charged and the
matter, in terms of section 52 (1) of Act 105 of 1997, was referred
to the High Court for sentence.
[3]
On 8 March 2004 the matter served before Shongwe J who confirmed the
conviction after he found that the proceedings in the court
a quo had
been in accordance with justice.
[4]
The High Court (The Western Circuit Division sitting in
Potchefstroom) on the same day sentenced the Appellant on the charge
of rape to life imprisonment and to a fine of R 1.000.00 or six(6)
months imprisonment on the charge of malicious injury to property.
[5]
On 23 July 2010 the Supreme Court of Appeal granted leave to appeal
against the conviction and sentence after same had been
refused.
[6]
This court condoned the late filing of the Heads of Argument by the
Appellant. The application was not opposed.
[7]
The rape charge, the subject matter of the appeal, was formulated by
the state as follows:
"Dat
die beskuldigde skuldig is aan die misdaad VERKRAGTING.
Deurdat
op of omtrent die 10 (sic) dag van Augustus 2002 en te of naby
Jouberton in die streekafdeling Suid Transvaal die beskuldigde
wederregtelik en opsetlik met Regina Moleleki ( n volwasse vrou) teen
haar sin en wil met haar vleeslike gemeenskap gehad het".
[8]
The annexure to the charge sheet makes no reference to the fact that
section 51(1) of Act 105 of 1997 applies to the charge
nor that the
charges should be read together with section 51(1) of Act 105 of
1997. (See page 16 of the court record)
[9]
The Appellant's appeal is based on the following grounds:
1.
That the court a quo erred when it found that:
1.1
The state had proved the guilt of the Appellant beyond a reasonable
doubt.
1.2
The state's version did not have improbabilities.
1.3
The state witnesses had been satisfactory witnesses.
1.4
The evidence of the state witnesses could be criticised on matters of
detail only while same had been contradictory.
1.5
The differences in the Appellant's evidence and that of his witness
justified the rejection of the Appellant's evidence.
2.
In convicting the Appellant the court a quo erred in not properly
analysing or evaluating the evidence of state witnesses and
properly
considering the improbabilities inherent in the state's version.
3.
That the court a quo erred:
3.1
When it rejected the Appellant's evidence and holding that it was not
reasonably possibly true.
3.2
When it accepted the evidence of the state witnesses.
3.3
When it held against the Appellant contradictions between his
evidence and what was put to witnesses in cross examination.
3.4
When it blamed the Appellant for issues which were not put to
witnesses.
3.5
When it gave importance to minor discrepancies in evidence of the
defence witnesses.
[10]
The Appeal against sentence was based on:
1.
The fact that the effective term of life imprisonment was out of
proportion to the totality of the accepted facts in mitigation
and
the fact that the period of time which the Appellant spent in custody
awaiting trial had been disregarded.
2.
The absence of previous convictions, the absence of planning, the age
and personal circumstances of the
Appellant,
the rehabilitation element and the mitigation factors which,
according to the Appellant, ought to have influenced the
Court a quo
to impose a shorter term of imprisonment coupled with community
service and/or a further suspended sentence.
3.
The fact that the court a quo erred in overemphasising the
seriousness of the offence, the interests of society, the prevalence
of the offence, the deterrent effect of the sentence and the
retributive element of sentencing.
[11]
A point in limine was taken on behalf of the Appellant by Mr. Mojuto
in respect of the sentence of life imprisonment. He submitted
that
the Appellant was not supposed to have been sentenced in terms of
Section 51(1) of Act 105 of 1997 as he had been charged
with rape
under common law and that he ought to have been sentenced as charged.
This submission, for the reasons I shall give later,
in my view, is
correct and has merit.
[12]
Section 35(3) (a) of Act 108 of 1996 (The Constitution of the
Republic of South Africa) provides:
"(3)
Every accused person has a right to a fair trial which includes the
right -
(a)
to be informed of the charge with sufficient detail to answer it;"
[13]
Lewis JAinSw Makatu
2006 (2) SACR 582
(SCA) at 587 paragraph [7]
said:
"As
a general rule, where the State charges an accused with an offence
governed by s 51(1) of the Act, such as premeditated
murder, it
should state this in the indictment. This rule is clearly neither
absolute nor inflexible. 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. If during the course of a trial the State wishes to amend the
indictment it may apply to do so, subject to the
usual rules in
relation to prejudice." See also S v Legoa
2003 (1) SACR 13
(SCA) and S v Ndlovu
2003 (1) SACR 331
(SCA).
[14]
The court a quo in pronouncing the verdict on count number 1 said:
"SKULDIG
BEVIND SOOS AANGEKLA OP DAARDIE KLAGTE"
(See
page 71 - court record)
The
Appellant, indeed, was not made aware of the application of the
minimum sentence Act or the state's intention to rely on the
Act.
This was at no stage done either by the state or the court a quo
itself. The only time this became apparent was when the matter
was
referred for sentence in terms of Section 52(1) of Act 105 of 1997.
This is borne out by the correspondence between the DPP'S
office and
the office of the
Regional
Magistrate as is evident from their letters dated 28 July 2003, 8
September 2003 and 14 January 2004 respectively. Sight,
at this point
in time, was lost by both the state and the Court a quo that the
charge had not been in terms of Section 51 (1) of
Act 105 of 1997.
[15]
Although the Appellant faced a very serious charge he nevertheless
was at no stage informed of the implication and consequences
of the
charge that he faced. No intention to rely on the minimum sentence's
Act was ever communicated to him be it by way of the
annexure to the
charge sheet or an explanation or intimation by either the court or
the state. To do that at sentence stage as
State v Makatu (supra) has
shown was wrong and improper. This indeed amounted to a misdirection.
(See also Mashinini v The State
50/ll[2012] ZASCA 1 (21 February
2012)
FACTS
OF THE CASE AND CONVICTION
[16]
The complainant's testimony is that she on 10 August 2002 visited her
boyfriend Tebogo Masinya who lived at a hostel in Jouberton.
While
preparing to sleep they heard stones being thrown at the windows.
Upon investigation, the boyfriend saw a person coming into
their room
having a jacket pulled over his head. This man, later identified as
the Appellant, said he was looking for his wife.
He grabbed the
complainant and pulled her outside. The Appellant assaulted her by
hitting her with a fist, open hands and strangling
her. She could not
scream. He took her to an open veld where he raped her twice. There
he covered her mouth with his hand while
strangling her. The
Appellant threatened to kill her after raping her. She pleaded with
him not to and he then suggested that they
go together to his home
where he would lie to his wife telling her that he had found the
complainant assaulted and abandoned next
to a road. They used a taxi
to go to his home where he, indeed, lied to his wife as he had
suggested. The Appellant at his home
washed the blood from her face
and proceeded outside to throw away the water that was used to wash
the blood. While the Appellant
was outside the complainant told the
Appellant's wife the truth of what had happened and that the
Appellant had raped her. She
spent the night in their house and
reported the matter to the police the following morning and
thereafter saw a doctor.
The
complainant, under cross examination, conceded that she had been in
love with the Appellant and that a child aged 13, at the
time, was
born out of their relationship. They were, however, no longer in love
at the time of the incident. This was later confirmed
by the
Appellant's wife when she testified. She testified that the Appellant
took her while she was only clad in her night gown
and without her
shoes. The Appellant spoke in Zulu saying that he had wanted his
wife. The boyfriend did not say anything when
she was taken away. She
went away with the Appellant because she had been afraid of him. She
later told her boyfriend that she
had laid a charge against the
Appellant.
[17]
The complainant's testimony is corroborated by that of her witness,
the boyfriend. He confirmed that the windows were broken;
that the
Appellant spoke in Zulu; that the Appellant indicated that he had
been looking for his wife; that he opened the door and
saw this man,
later indentified as the Appellant, with a jacket pulled over his
head; that the Appellant grabbed the complainant
and pulled her
outside; that he did not follow them; that the complainant had told
him that she and the Appellant had been in love
in the past; that he
had only seen her in the morning and that the complainant had been
wearing a night dress with no shoes on
when she was taken away.
The
appellant in his testimony confirmed that he had broken the windows
of the room in the hostel; that he had slapped her twice;
that he had
taken the complainant to his house; that his wife was present in the
house; that the complainant had a laceration on
her lip and that he
could have caused that; that the complainant slept in their house and
only left in the morning. The Appellant's
wife confirmed in her
testimony that indeed the Appellant had arrived in the night in the
company of the complainant who put up
with them for the night and
that the Appellant and the complainant were no longer in love when
the Appellant brought her to their
house.
[18]
The Appellant denied that he raped the complainant. According to him
the complainant voluntarily accompanied him to his house.
He denied
that the complainant had no shoes on. His explanation for taking the
complainant to his home was that he had wanted to
remove her from the
boyfriend. He denied that the complainant was bleeding and that she
had washed the blood from her face. He
denied taking the complainant
to the veld. The Appellant's wife called as a witness, denied that
the complainant had been bleeding.
She testified that she had never
asked the Appellant why he had brought the complainant to their home
and denied that the complainant
had the injuries that she said she
had sustained.
[19]
The court a quo, correctly in my view, when analysing the evidence
found that the Appellant's version and that of his wife
had been
tainted with improbabilities. The Appellant testified that he had hit
the complainant twice with an open hand while the
J88 which was
accepted by agreement between the parties had shown that the
complainant had more injuries than those disclosed by
the Appellant.
He could not explain how the complainant had received the injuries.
He, however, ended up conceding, under cross
examination, that some
injuries could have been caused by him. He in fact contradicted
himself on the aspect. It is indeed improbable
that the complainant
had voluntarily accompanied him when it was necessary for him to
assault her. It is also improbable that he
merely intended to remove
the complainant from the boyfriend if they, at the time, had not been
in a love relationship.
[20]
It is also highly improbable that the Appellant's wife would not have
wanted to know why the complainant was brought to their
home. The
wife, clearly, was not a truthful witness. She merely defended the
husband. It is indeed improbable that she did not
see the
complainants' injuries that the complainant testified about. The J88
clearly demonstrates that the complainant was injured
and possibly
raped. The Appellant and the wife contradicted each other. For
instance, the love relationship between the Appellant
and the
complainant, according to the Appellant's wife, was over when the
complainant was taken to their home. The Appellant testified
that he
and the complainant at the time, were still in love. The Appellant's
version regarding how the complainant was injured
was never put to
the state witnesses. The Appellant's wife testified that she never
spoke to the complainant, yet she testified
that she directed the
complainant to where the complainant was to sleep for the night.
[21]
The complainant's boyfriend was afraid of the Appellant because he
spoke in Zulu. This is borne out by his not wanting to get
involved
when the complainant was removed from the hostel. The court a quo was
alive to the contradictions between the complainant's
evidence and
that of the boyfriend. The discrepancies are indeed immaterial. The
court a quo, in my view, correctly rejected the
defence's version and
preferred that of the state.
[22]
A number of important issues were not put to the state witnesses.
These are inter alia: that the door at the hostel was not
opened when
the Appellant knocked; that the Appellant washed the complainant's
blood from her face; that he strangled her and that
he caused her to
lie down in the veld when he wanted to have sexual intercourse with
her. The fact that the Appellant's wife provided
the complainant with
clothing was also never put to the complainant. The court a quo was
indeed correct in levelling the criticism
as it did.
[23]
The court a quo appears to have considered the evidence in its
entirety and made the correct and necessary findings. An appeal
court
is slow to tamper with the factual findings of the court a quo unless
they are shown to be clearly wrong. (See Koopman v
S 2005(1) All SA
539 (SCA) at 539 (head note) and R v Dhlumayo and Another 1948(2) SA
677 (AD) at 706).
The
appeal against conviction, in my view, should fail.
SENTENCE
[24]
I have already shown that there was a misdirection when the matter
was referred to the High Court for sentence as the court
a quo had
clearly convicted the Appellant "as charged". The court a
quo ought to have sentenced the Appellant accordingly.
The need to
even refer to the minimum sentences Act ought not to have arisen.
[25]
This court is, therefore, at large to consider the issue of sentence
afresh.
[26]
The mitigating circumstances in favour of the Appellant were given as
follows:
The
Appellant was 42 years old when he committed the offence. He had a
love relationship with the complainant which resulted in
the birth of
their 13 year old son (when the Appellant was sentenced). He was a
first offender. The complainant did not appear
to have sustained
serious injuries other than the injuries on her forehead which was
also swollen up. No injuries associated with
penetration were proved.
He, at the time of the sentence, appeared to have been in custody for
18 months awaiting trial.
[27]
The sentence of life imprisonment on count 1, in my view, was
unwarranted. This court must alter the sentence which must be
in line
with the conviction and the circumstances of the case. Having regard
to the circumstances of the case, a sentence of 10
years
imprisonment, in my view, appears to be an appropriate sentence. The
sentence must be antedated to the date of sentence.
[28]
I would, in the result, make the following order:
1.
The conviction on count 1 is confirmed.
2.
The sentence of life imprisonment on count 1 is set aside and
replaced with the following sentence:
The
accused is sentenced to 10 years imprisonment'.
3.
The sentence is antedated to 08 March 2004.
4.
The conviction and sentence on count 2 are confirmed.
M
W . MSIMEKl
JUDGE
OF THE HKJH COURT
I
agree.
A.M.
L PHATUDI
JUDGE
OF THE HIGH COURT
I
agree.
And
it is so ordered.
W.
R. C. PRINSLOO
JUDGE
OF THE HIGH COURT
Heard
on: 09 May 2012
For
the: Appellant: Adv. M. J. Mojuto
Instructed
by: The Legal Aid Board
For
the Respondent: Adv. M.J. Van Vuuren (Ms)
Instructed
by: The Director of Public Prosecutions
Judgment
delivered on:13/06/2012