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[2012] ZAGPPHC 183
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Mnisi and Another v S (A704/2011) [2012] ZAGPPHC 183 (21 August 2012)
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NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
No. A704/2011
DATE:21/08/2012
In
the appeal of
NHLANHLA
MINISI
..................................................................................................
First
Appellant
JACOB
MNISI
.........................................................................................................
Second
Appellant
and
THE
STATE
.............................................................................................................
Respondent
JUDGMENT
Van
der Byl AJ:-Introduction
[1]
The Appellants (to whom I will for the sake of convenience refer to
as Accused No. 1 or Accused No. 2 or, as the circumstances
may
require, collectively as "the Accused"), having been
convicted in the regional court sitting at Benoni on a charge
of Rape
on 24 February 2006, were, in terms of section 52(1 )(b) of the
Criminal Law Amendment Act, 1997 (Act 105 of 1997) (as
it provided at
the time), referred to the High Court for sentence.
[2]
On 26 February 2009 Mavundla J confirmed the conviction, and
sentenced each Accused to 15 years imprisonment, and ordered the
prison authorities to consider, when considering their release on
parole, the period of four years that the Accused have been detained
awaiting trial.
[3]
The two Accused, with leave of the learned Judge, now appeal against
both their conviction and sentence.
[4]
The appeal calls for a consideration of all the evidence adduced in
this matter. The charge and evidence adduced
[5]
The charge against the Accused was that upon or about the 14th of
March 2005 and at or near Putfontein the Accused did unlawfully
and
intentionally have sexual intercourse with T M, at the time a 17 year
old female person, without her consent.
[6]
Both Accused, each having been represented by his own legal
representative, pleaded not guilty. Accused No. 2 admitted having
had
sexual intercourse with the complainant, but indicated that it
occurred with her consent. Accused No. 1 elected to exercise
his
right to remain silent.
[7]
At the commencement of the trial a medical report (J88) on the
medical examination conducted on the complainant at Thembisa
Hospital
on 14 March 2005 at 20h45 was handed in by agreement between the
parties from which it appears that genital samples were
taken from
her vulva and vaginal vault.
[8]
The State adduced the evidence of four witnesses.
[9]
Firstly, there is the evidence of the complainant, Ms. T M, herself.
[10]
She testified that on Sunday, 13 March 2005 at about 19h00 on her way
home after having visited a friend, Thembi Mthembu, she
was, shortly
after her friend who accompanied her to a point close to her home,
left her, accosted by the two Accused. They were
not known to her.
She was told that her dad was at his friend's house and was calling
her. Not believing them she asked them how
her dad looks like.
Although they described him accurately she, still not believing them,
asked him to tell her more they knew
about him. When they described
the car he was driving she eventually accepted that her father called
her and accompanied the two
Accused to a place where her father
according to them found himself. It was in a street where she knew
her father's friend lived.
On their way Accused No. 2 proposed to
her. She declined. At a house they stopped where Accused No. 2 said
he wanted to fetch a
jacket as he was cold. As Accused No. 2 came out
of the house Accused No. 1 grabbed her. She was kicking and
screaming, but the
two Accused dragged her into the house. Inside
Accused No. 1 grabbed hold of her hands from behind whilst Accused
No. 2 opened
her legs, unzipped his trousers, pushed her panty aside
and raped her. Having done that Accused No. 2 grabbed her hands from
behind
whilst Accused No. 1 in turn similarly raped her. It was only
the next morning that she was able to push her way out of the house
when the door was opened for one of their friends to enter (who was,
incidentally, at the time of her testimony also at court).
[11]
Having found her way out of the house she ran to the house of her
friend she visited the previous day. Her friend was getting
ready to
go to school. She did not tell her what happened to her, because,
according to her she was at that stage too embarrassed,
but asked her
to come with her to her house. I pause to mention that it later
became apparent that she in the course of the morning
while she was
in possession of her friend's cell phone, left a so-called "reminded
on her cell phone, set for about 1h00,
to the effect that she was
raped. They, however, found her home locked. She asked her friend to
give her some money so that she
could phone her father. She,
thereupon, phoned him from a public phone booth. She was crying and
asked him to come home. He, however,
indicated that he could not get
away and told her to go to her grandparents' house. She then went
back to her friend's house where
she remained the whole day. At about
16h00 when her father arrived at home she went home where she told
him that she need to go
to a doctor and to the police station. He
asked her why. She then told him that she was raped. They then went
to the Putfontein
Police Station where she made a statement
whereafter she was taken to Thembisa Hospital where she was medically
examined.
[12]
Under cross-examination on behalf of Accused No.1 the complainant was
confronted with the contents of her police statement.
It would appear
that the statement was taken in English by an Afrikaans speaking
female police official. According to the statement,
as put to her,
she had stated that one of the Accused raped her twice and that the
other one raped her only once. According to
her that is what she
remembered at the time. It was put to her that nothing happened
between her and Accused No. 1, that a friend
of his will testify that
he accompanied her to the phone booths in the early hours of the
morning and that she came back and went
back into the yard of Accused
No. 2 without anything happening.
[13]
Under cross-examination on behalf of Accused No. 2, it was put to the
complainant that Accused No. 2 will testify, and will
call his own
witnesses to corroborate his version to the effect, that she had
consensual sex with him on the morning of 14 March
2005 after having
met her at Accused No. 1 's house, that she then in the company of a
friend went to a telephone booth to make
a phone call and then went
to his house where she had consensual sex with him.
[14]
She denied all these allegations as a lot of lies.
[15]
As the second witness the State adduced the evidence of the
complainant's father, Mr. Bafana Mashiane.
[16]
In his evidence, which basically confirmed the complainant's
evidence, he testified that on Sunday, 13 March 2005 at about
19h00
he arrived at home after having visited a friend in Daveyton. The
complainant was not there. It has never happened before.
He went to
her friend's house, but she was not there. She did not come back home
all night. He reported her absence the next morning
to the police. He
left home at 6h30 as he had a job interview at 8h00. Whilst he was
waiting for his interview she phoned him at
about 7h30. She was
crying and asked where he was. He told her to go to her grandparents.
When he returned home the afternoon he
found her at home. She was
crying and told him that she was raped by two men.
[17]
The third State witness was the complainant's friend, Ms. Nomathembi
Precious Mthembu, referred to in the evidence as Thembi.
[18]
She confirmed that the complainant came to her home on Sunday, 13
March 2005 and that she at about 19h00 accompanied her on
her way
home where she left her at a corner next to her house. The next
morning while she was preparing herself for school the
complainant
again arrived at her home at about 6h00. She was crying. She asked
her what had happened to her but she did not tell
her. She took her
cell phone whilst she dressed herself for school. The complainant
then asked her to go with her to her place
to see if there are
people. There were no people whereafter they walked to a Cell C
container public phones. She said she wanted
to phone her father. She
then gave the complainant the key to her home. They then parted.
Later when she returned from school she
saw the reminder the
complainant left on her phone in which she indicated that she was
raped. She returned home at 15h00. The complainant
was still there.
She then accompanied the complainant to her home where they found her
father. They then left to go to the police
station.
[19]
At this stage the matter was postponed to 3 February 2006. On
resumption on that date Accused No. 2's legal representative
withdrew, whereupon, the legal representative who appeared on behalf
of the Accused No. 1 from thereon also represented Accused
No. 2 in
the further proceedings.
[20]
The last witness called on 3 February 2006 was a Sergeant in the SAPS
and an Assistant Forensic Analyst connected to the Forensic
Science
Laboratory in Pretoria, Ms. Sibongile Ndaba who examined the genital
samples taken from the vulva and vaginal vault of
the complainant
which she compared with control samples of the two Accused. She found
that the DNA profile obtained from the vulva
and vaginal vault is the
result of the mixture of the genetic material obtained from the blood
sample of Accused No. 2.
[21
] At the end of the State case an application for the discharge of
the two Accused was dismissed by the magistrate.
[22]
The Defence case was, thereupon, closed. It is noteworthy that the
magistrate specifically asked the Accused's legal representative
whether they realise that in the absence of any evidence on their
part the State's case stands uncontested. Their representative
confirmed that he explained everything to them and that they
understand the situation.
[23]
The magistrate, thereupon, in a reasoned judgment held that the State
proved its case beyond all reasonable doubt and convicted
the Accused
on the charge of Rape as charged and referred the case to the High
Court for sentence in terms of
section 52
of the
Criminal Law
Amendment Act, 1997
.
Proceedings
in High Court
[24]
As is apparent from the papers this matter came before Mavundla J on
26 February 2009, ie., more than three years later and
more than four
years after the Accuseds' arrest on 18 March 2005.
[25]
I need for this reason and another reason with which I will deal in a
moment to deal briefly with the developments of this
matter since it
was referred to the High Court by the magistrate on 3 February 2006.
[26]
It appears that the matter served before Preller J on 7 December
2006. The proceedings which served before Preller J have for
some
inexplicable reason not been transcribed. It, however, appears from
the judgment delivered by Preller J that the matter was
on that day
postponed for hearing on 10 and 11 May 2007 for at least two reasons.
[27]
Firstly, Preller J perceived the record of proceedings not to have
been properly transcribed. Apart from a single insignificant
passage
where the record which was corrected by the magistrate on 31 January
2007 Preller J's concern disclosed no difficulties.
[28]
Secondly, it would appear that in the proceedings before Preller J it
was argued that there is a need for the reopening of
the case as
Accused No. 1 wishes to raise a defence of an alibi because of a
patent error in the chargesheet which only then came
to light.
[29]
On 22 April 2008 the matter again served before the magistrate on the
occasion of which an application was launched for the
reopening of
the case. The application was in the case of Accused No. 1 based on a
contention that according to the chargesheet
the incident occurred on
14 March 2005 being a date in respect of which he has an alibi. In
relation to Accused No. 2 the contention
was that on that day and the
time of the incident he was alone at home.
[30]
The magistrate, correctly in my view, dismissed the application.
[31]
The application was obviously not only based on an afterthought, but
also one not supported by the evidence and in any event
one which
could have been addressed in the course of the trial.
[32]
As far as the date of the charge is concerned it is clear from the
evidence of the complainant that she was accosted and raped
by the
two on Sunday, 13 March 2005, after 19h00 and that she was detained
in Accused No. 2's house until she was able to free
herself at about
6h00 on Monday, 14 March 2005. Her evidence was never in this regard
challenged. As a matter of fact Accused No.
2 in his plea explanation
and according to his version as put under cross-examination to the
complainant admitted having had sexual
intercourse with the
complainant. Accused No. 1 in turn made no effort to establish an
alibi in the course of the trial. Although
he exercised his right to
remain silent, the situation is, as was held in Sv Boesak 2001 (1)
SACR1 (CC) at 11d, para [24], that
an accused's right to remain
silent and, therefore, to be under no obligation to testify does not
mean that there are no consequences
attaching to a decision to remain
silent during the trial. If there is evidence calling for an answer,
and an accused person chooses
to remain silent in the face of such
evidence, a court may well be entitled to conclude that the evidence
is sufficient in the
absence of an explanation to prove the guilt of
the accused. Whether such a conclusion is justified will, of course,
depend on
the weight of the evidence.
[33]
Mavundla J duly dealt with this aspect together with the evidence
dealt with and considered by the magistrate and concluded
that the
proceedings have taken place in accordance with justice.
[34]
I have no reason to hold otherwise.
The
sentences imposed
[35]
This brings me to the question of sentence.
[36]
We heard some argument, particularly, with a view to the decision in
S v Makatu
2006
(2) SACR 582
(SCA), as to whether or not the sentence imposed is a
fair one. The argument is based on the fact that the Accused were
alluded
to in the chargesheet that they were charged with the crime
of rape "read with the provisions of
section 51(2)
of the
Criminal Law Amendment Act 105 of 199T
in terms of which a minimum
sentence of 10 years imprisonment is prescribed. This is, however, a
matter to which
section 51(1)
of that Act applies in terms of which a
minimum sentence of life imprisonment applies, being the basis on
which the learned Judge
a quo approached the matter. The learned
Judge, however, held that there no substantial and compelling
circumstances existed and
imposed the lesser sentence of 15 years
imprisonment.
[37]
The question we were called upon is, notwithstanding the learned
Judge a quo's approach, whether a sentence of 15 years imprisonment
was in any event an appropriate sentence in the circumstances.
[38]
In my view the sentence imposed is indeed an appropriate one.
[39]
This is clearly a rape which can be termed as a gang rape which calls
for a minimum sentence of life imprisonment,
[40]
Mavundla J in considering sentence took into consideration evidence
adduced by and on behalf of the Accused in mitigation of
sentence and
in effect held that there are substantial and compelling
circumstances justifying the imposition of a sentence lesser
that the
prescribed sentence of life imprisonment.
[41
] It is trite that, as has been held in, inter alia, S v Rabie
1975
(4) SA 855
(A) at 857D-F, that in every appeal against sentence,
whether imposed by a magistrate or a Judge, the Court hearing the
appeal
-
11
(a) should be guided by the principle that punishment is
'pre-eminently a matter for the discretion of the trial Court'; and
(b)
should be careful not to erode such discretion: hence the further
principle that the sentence should only be altered if the
discretion
has not been 'judicially and properly exercised'".
[42]
It was, furthermore, held that in determining whether a court's
discretion has been judicially and properly exercised a court
on
appeal has to determine whether such discretion has been vitiated by
irregularity or misdirection or is disturbingly inappropriate.
[43]
Rape is, as held by Mavundla J, referring to the case of N v T
1994(1) SA 862
at
862G a "horrifying crime and is a cruel and selfish act in which
the aggressor treats with utter contempt the dignity and
feelings of
the victim".
[44]
In S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) the learned Judge said the
following at 5d-e:
“
Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim.
The
rights to dignity, to privacy and the integrity of every person are
basic to the ethos of the Constitution* and to any defensible
civilisation.
Women
in this country are entitled to the protection of these rights. They
have a legitimate claim to walk peacefully on the streets,
to enjoy
their shopping and their entertainment, to go and come from work, and
to enjoy the peace and tranquillity of their homes
without the fear,
the apprehension and the insecurity which constantly diminishes the
quality and enjoyment of their lives".
[45]
The only issue of concern is the period during the Accused were
detained awaiting trial. Mavundla J ordered that, as I have
already
indicated, ordered the prison authorities to consider, when
considering their release on parole, the period of four years
that
the Accused have been detained awaiting trial.
[46]
In S v Vilakazi 2009(1) SACR 552 (SCA) at 575b the Court, however,
ordered, in similar circumstances that the period of detention
be
deducted from the sentence imposed when calculating the date upon
which the sentence is to expire.
[47]
In my opinion the order made by Mavundla J should be altered so as to
make it clear that the period of detention should be
deducted from
the sentence imposed.
Order
[48]
For these reasons the following order is made:-
1.
Subject to paragraph 2 below, the appeal against conviction and
sentence is dismissed.
2.
The order to the effect that the prison authorities are to consider,
when considering their release on parole, the period of
four years
that the Accused have been detained awaiting trial is set aside and
replaced with the following order:
"The
prison authorities are ordered to deduct a period of four years from
the sentences imposed when calculating the date upon
which the
sentences imposed are to expire.".
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
A
M L PHATUDI
JUDGE
OF THE HIGH COURT
I
agree
N
B TUCHTEN
JUDGE
OF THE HIGH COURT
ON
BEHALF OF THE APPELLANTS: ADV V Z NEL
On
the instructions of: LEGAL AID SOUTH AFRICA
FNB
Building Church Square PRETORIA Tel : 084 618 5924
ON
BEHALF OF THE RESPONDENT: ADV E V SIHLANGU
DPP,
PRETORIA Tel: 012 351 6700
DATE
OF HEARING: 6 August 2012
JUDGMENT
DELIVERED ON: 21 August 2012