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[2012] ZAFSHC 85
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Mosia v S (A152/11) [2012] ZAFSHC 85 (3 May 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A152/11
In the matter between:-
FANI DANIEL MOSIA
…............................................................
Appellant
and
THE STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, AJP
et
DAFFUE, J
et
PHALATSI, AJ
_____________________________________________________
HEARD ON:
19 MARCH 2012
_____________________________________________________
JUDGMENT BY:
PHALATSI, AJ
_____________________________________________________
DELIVERED ON:
3 MAY 2012
_____________________________________________________
[1] The appellant was
charged as accused 2 in the regional court in Sasolburg, together
with his brother, Thabang David Mosia, on
six counts, being, count 1,
kidnapping, counts 2 to 5, rape and count 6, attempted murder.
[2] They were both
acquitted on the charge of kidnapping and three counts of rape. They
were convicted on one count of rape and
attempted murder on 28 April
2004.
[3] Subsequent to their
conviction, the proceedings in the regional court were stayed and
they were referred to the high court for
sentence, in terms of
section 52
of the
Criminal Procedure Act, No. 105 of 1977
.
[4] Malherbe JP sentenced
them to life imprisonment in respect of the charge of rape and 8
(eight) years imprisonment on attempted
murder.
[5] The appellant then
filed an application for leave to appeal, and Cillie J, granted him
leave to appeal against sentence, only
in respect of the life
sentence.
[6] His co-accused did
not appeal and he is therefore not involved in these proceedings.
[7] The facts of the case
are as follows:
the complainant, a
mother of five children, the youngest of whom was eight months old
at the time of the incident, being 1 March
2002, was on her way
going back home after accompanying her sister, who had visited her;
when passing accused
1’s house, the latter called her, but she declined and
pointed out that she was in a hurry as she
had left her child alone
at home;
accused 1 pulled her
and accused 2 came and pushed her from behind into the house of
accused 1;
in the house, both
accused hit her repeatedly with iron rods, she fell down and
accused 1 raped her. After being raped by accused
1, accused 2 also
raped her;
they thereafter
instructed her to climb on the drum so that they could hang her,
but because of her weakness arising out of
the assault, she was
unable to climb on the drum;
both accused, who were
drunk all along, fell asleep and she managed to escape.
[8] The medical report of
Dr. S. Zylstra, was handed in by agreement as Exhibit “A”,
and, as both parties agreed to
the contents thereof, the need to call
him to testify on the contents thereof was dispensed with.
[9] It is trite that the
court of appeal will interfere with sentence only if there was a
material misdirection on the part of the
trial court.
[10] The court
a quo
said the following during sentencing, about the complainant:
“
dit
was opmerklik toe sy die lengte van die hofsaal gestap het na die
getuiebank, hoe swaar sy gestap het en sy het in haar
getuienis aan
die hof verduidelik dat haar fisiese toestand die resultaat is van
die aanranding op die betrokke dag.”
This was when the
complainant testified in aggravation of sentence, where she said that
she was still suffering pain from her hip
downwards. According to the
medical report, only her ankle was injured.
10.2 The court
a quo
further held that, although it accepts the fact that the accused
were under the influence of alcohol, the brutality of the assault
on
the complainant overshadowed the possible mitigating effect of
drunkenness.
[11] It is therefore
clear that the court
a quo’s
finding of absence of
compelling and substantial circumstances is solely based on the
physical injuries of the complainant.
[12] I firstly want to
deal with the evidence in respect of the injuries suffered by a
victim of rape, which I will deal with in
two categories:
12.1
psychological
trauma
Rape is a crime which is
inherently traumatic. The court should readily accept the evidence of
the rape victim in respect of psychological
trauma, even in the
absence of expert evidence, because, as I have already said, such
psychological trauma is a natural consequence
of rape;
It is unthinkable to come
across any rape victim who has not been traumatised by the incident,
even in the absence of any physical
and /or bodily injuries.
12.2
Physical
and/or bodily injuries
In respect of physical
injuries, the expert evidence of a medical practitioner is
indispensable, as human nature dictates that a
victim of violence
will tend to exaggerate the seriousness of his/her injuries.
12.2.1 Now, in this very
case, the complainant testified in court that her face was so swollen
that the people from whom she requested
help could not even recognise
her, that she had suffered genital injuries and that she was bleeding
on her private part because
of the assault and the rape. But the
medical report does not reflect any of these alleged injuries. When
she was confronted with
this contradiction in cross-examination
during the trial, all she could say was that she made the doctor
aware of the said injuries
and she did not know why they were not
reflected in the medical report.
12.2.2 It is fair for the
court to accept that the victim is feeling pain on her body, but to
accept that the pain is as a result
of the assault during the rape,
without any expert evidence, is treading on dangerous grounds. The
complainant was assaulted in
March 2002 and the observations of the
court
a quo
were made during sentencing on 9 September 2004,
some 30 (thirty) months after the assault. There is no evidence that
she never
suffered any further injuries during the said period. Even
Cillie J, when granting the appellant leave to appeal, correctly held
that the evidence and observations of the court
a quo
are not
based on any medical evidence.
[13] I therefore find
that the reliance of the court
a quo
on its own observations
and on the evidence of the complainant on the nature of her physical
injuries and the effects thereof, is
a material misdirection which
entitles the court of appeal to interfere with its sentence.
[14] I have had an
opportunity to read the incisive judgment of my Brother, Rampai AJP.
I, unfortunately, differ with him in respect
of the following
aspects:
14.1 firstly, he states
that Ms. Kruger, who appeared on behalf of the appellant during the
appeal, could not give any sound reason
as to why the medical report
of the doctor should be preferred to the testimony of the victim and
the live observations made by
the sentencing judge. I have already
dealt with this aspect, finding that the evidence of the complainant
and the observations
of the sentencing judge are unreliable, as they
are not based on any specialised medical knowledge and expertise.
Indeed, no judge
can make any finding based on his/her own
observations, as such observations do not constitute evidence. The
medical report on
the physical injuries and the effects thereof is
the only independent, objective, expert and reliable evidence. It can
never be
accepted, as counsel for the state argued, that the report
is unhelpful, only because it does not support or corroborate the
evidence
of the complainant. The state could not remedy the
“inadequacy” of the medical report by the testimony of
the complainant
or observations of the sentencing judge, but could
only do it by further expert medical evidence.
14.2 the second aspect
that I want to comment on, is the fact that Ms. Kruger cannot, for
the first time on appeal, raise the argument
of the seriousness of
the physical injuries sustained by the complainant. The court of
appeal must deal with all the issues covered
by the record. To hold
otherwise can lead to serious miscarriage of justice. It often
happens that a legal practitioner does not
adequately, or at all,
deal with an issue, because he/she thinks it is not important, only
for the court in its judgment to find
that it is an important issue.
To refuse the appellant to deal with the issue on appeal could lead
to unfair results. The other
concern is that it often happens that
the point could not be raised because of the ineptness of the legal
practitioner and to punish
a litigant because of the ineptness of
his/her legal representative, could lead to severely adverse
consequences for the litigant.
In casu,
the very
argument raised by Ms. Kruger, is the core of the judgment of both
the sentencing judge and my Brother. To therefore hold
that she could
not rely on this argument would mean that the appellant had not been
heard. I have already alluded to the fact that
the victim’s
version of her physical injuries was not corroborated by the medical
evidence, and this is a matter which is
evidently clear from the
record. I therefore see no reason why the court of appeal cannot deal
with it, even if it is raised for
the first time on appeal. The court
of appeal is confined to the record, but not to the arguments of the
appellant in the court
a quo.
[15] Now, in the light of
my finding that the reliance of the court
a quo
on the
evidence of the complainant and its own observations was a material
misdirection, can it still be said, based on the physical
injuries of
the complainant as depicted on the medical report, that this is the
worst case scenario imaginable.
15.1 it is trite that the
courts will always deal with the fact that a person is a first
offender differently from repetitive offenders.
Indeed, this fact is
even acknowledged by the legislature in that, in minimum sentencing
legislation, the legislature makes a distinction
in respect of
sentence on certain offences based on the fact whether that person is
a first, or further offender.
15.2
In casu
,
other than the appellant being a first offender, at the age of 36, he
had minor children that he was supporting, he was drunk
during the
commission of the crime and he was in prison for a period of 30
(thirty) months before being sentenced.
15.3 in deciding the
appropriate sentence in a crime involving violence, like rape in the
present case, the degree of violence will
always be considered by the
court in aggravation or mitigation of sentence. The violence in
respect of the rape should be distinguished
from the one in respect
of attempted murder, for the purpose of sentence on the charge of
rape. Failure to do that will amount
to the accused being sentenced
twice for the same conduct, which would be unfairly prejudicial to
the accused. It would simply
vitiate against the principle that the
sentence should fit the crime.
[16] I therefore find
that in the present case, the cumulative effect of the factors
mentioned above, constitute substantial and
compelling circumstances,
which justify deviation from the imposition of life imprisonment.
[17] This, however, does
not detract from the fact that rape is a very serious offence and
that more so if, as in the present matter,
it is rape of the victim
by more than one person.
[18] Taking into account
the seriousness of the crime, the traumatic effect on the victim and
the physical violence as set out in
the medical report, I am of the
view that the appropriate sentence should have been one of 20
(TWENTY) years imprisonment.
[19] I consequently make
the following order:
19.1 The appeal should
succeed;
19.2 The conviction
stands;
19.3 The sentence of life
imprisonment imposed on the appellant by the court
a quo
should
be set aside and substituted with the following:
“
Accused
no. 2 is sentenced to 20 (twenty) years imprisonment.”
19.4 The sentence should
be antedated to 24 September 2004, being the date on which the
accused was sentenced.
19.5 The said 20 (twenty)
years imprisonment should run concurrently with the 8 (eight) years
sentence in respect of attempted murder.
_________________
N.W. PHALATSI, AJ
On behalf of appellant:
Attorney S. Kruger
Instructed by:
The Justice Centre
BLOEMFONTEIN
On behalf of respondent:
Adv. E. Liebenberg
Instructed by:
Director: Public
Prosecutions
BLOEMFONTEIN
/sp