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[2011] ZAKZPHC 24
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Motha v S (AR 414/2010) [2011] ZAKZPHC 24; 2012 (1) SACR 451 (KZP) (31 May 2011)
1
REPORTABLE
IN THE
KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 414/2010
In the matter
between:
THEKWINI SOLOMON
MOTHA
….....................................................
Appellant
and
THE STATE
….......................................................................................
Respondent
_______________________________________________________________
JUDGMENT
_______________________________________________________________
GORVEN J:
The state evidence
was that on 16 May 2009 the complainant in this matter, M, who was a
12-year-old girl at the time, was raped
in her mother's home. This
much is clear from her testimony, the medical examination undertaken
by a doctor shortly afterwards
and the corroborating evidence of her
17-year-old cousin and her grandfather. Her mother was away at the
time and her evidence
was that she was living with relations close
by and went to the house to close up. It was approximately 18h00 and
a candle was
lit in the room which she entered. The homestead was a
two roomed structure. She searched for the keys and she said that,
as
she was doing so, the appellant pushed the ajar door open,
entered and closed the door behind him. He then threw her on the bed
and, after undressing both of them to the extent necessary, placed
his penis inside her vagina and started to move up and down
causing
her great pain. When she shouted loudly, he placed his hand over her
mouth and muffled her cries. Her 17-year-old cousin
Mavegi, who had
arrived in the other room, heard the cries. During her arrival
Mavegi had made a noise which M heard and then
ran outside and told
her what had happened. Mavegi challenged the appellant with this but
he denied the allegation. The two of
them left to go to their
grandfather. As they were leaving, the appellant threatened to kill
them if they told family members
of what had happened. The
grandfather returned alone, found the candle still alight in the
room and retrieved the appellant's
shoes. They were visible and were
near the entrance to the room. By this time the appellant had left.
It was common cause that
all three of these witnesses knew the
appellant, who lived nearby and who called the mother of M auntie.
This resulted in
the appellant being charged with one count of rape in the following
terms:
‘
THE
STATE versus THEKWINI SOLOMON MOTHA
(Hereinafter
referred to as the accused)
RAPE
That the accused is
guilty of the crime of Rape (read with the provisions of
Section
51(2)
of the
Criminal Law Amendment Act 105 of 1997
)
In that upon about
16/05/2009 and at or near Manyandeni in the Regional Division of
KwaZulu-Natal, the accused did unlawfully and
intentionally have
sexual intercourse with a female person, to wit [M] (12 years) by
inserting his genitals into her genitals without
her consent.’
The appellant was
represented at the trial and pleaded not guilty. In his plea
explanation he denied having any sexual dealings
with M but
admitted, in terms of s 220 of the Criminal Procedure Act 51 of 1977
(the
Criminal Procedure Act), that
he had been present at the
complainant’s homestead that night. He was convicted as
charged. The learned regional magistrate
imposed a sentence of life
imprisonment, having found no substantial and compelling
circumstances warranting a deviation from
that prescribed by
s 51
(1) of the
Criminal Law Amendment Act 105 of 1997
. At the time of
trial
s 51(1)
read with schedule 2 of that Act provided for a
sentence of life imprisonment for rape as contemplated in s 3 of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007 (the Act). The appeal against both conviction and sentence
comes before us as of right.
The appellant
stated that he came across M at her homestead after having consumed
alcohol given to him as a result of a harvesting
job done by him. He
wanted a different kind of alcohol because he was feeling
constipated. He purchased this from her because
her mother usually
sold alcohol from that homestead. He then sat down on a log outside
the house and took off his shoes whilst
M played with a ball in his
vicinity. She then removed his shoes and took them into the room
and, after a while, he requested
that she retrieve the shoes and
bring them to him. She went into the room but did not emerge and, as
a result, he entered the
room, which was dark, and stood there for
four to five minutes calling for her but not himself looking for the
shoes which, on
the grandfather’s uncontested evidence, the
shoes were near the entrance. When Mavegi arrived and asked what M
was doing
in the room, M exclaimed and the two of them left. He also
left without retrieving his shoes. He could give no reason why M
would
have removed his shoes. He could give no reason why he did not
search for his shoes before M emerged. He could give no reason why
the two girls exclaimed and left or why he did not take his shoes
after they left when he needed them for the following day’s
work. He could give no reason why they should falsely accuse him of
having raped M.
At the appeal, no
submissions were made on behalf of the appellant against the factual
findings of the learned regional magistrate.
Neither did counsel for
the appellant make any submissions to the effect that any
misdirections were committed in evaluating
the evidence. Counsel
quite correctly conceded at the hearing that no such submissions
would hold water. I cannot fault the magistrate
on any of these
findings. The evidence of the appellant was grossly improbable to
the extent that it was correctly rejected as
being false beyond
reasonable doubt. The evidence for the state was quite correctly
accepted.
Counsel for the
appellant, in his heads of argument, raised the point that no
mention was made in the charge sheet of the provisions
of s 3 of the
Act and that the charge had been brought under the common law.
Counsel for the respondent, in heads of argument
prepared by a
different counsel to the one who argued the matter, conceded that no
reference was made to s 3 of the Act and that
the charge sheet
should have been headed, in the third line set out in para [2]
above: ‘Rape in terms of section 3 of
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
’
instead of simply ‘Rape’. He moved that the charge be
amended to read as set out above. He submitted that
no prejudice
would result to the appellant if this court, on appeal, so amended
the charge since the defence would not have been
conducted any
differently.
Counsel for the
appellant submitted, in opposition to this motion for amendment,
that the crime for which the appellant had been
charged was the
common law crime of rape which, as he put it, was abolished on 16
December 2007 when the Act came into force.
That being the case, the
crime for which the appellant had been charged did not exist at the
time the offence was committed.
To allow such an amendment would
therefore amount to substituting a new offence for the one with
which the appellant had been
charged.
It is
clear law that an amendment to a charge may be effected on appeal in
terms of
s 86(1)
of the
Criminal Procedure Act.
1
This
was dealt with in
Barketts
Transport
in the following manner:
‘
Mnr
Marais het die aansoek om wysiging gegrond op die bepalings van art
86(1) van die Strafproseswet 51 van 1977, saamgelees met
arts 309(3)
en 304(2)(c)(iv) van dieselfde Wet. Laasgenoemde twee artikels magtig
die wysiging van 'n aanklag op appèl of
hersiening deurdat die
Hof 'die bevel gee wat die landdroshof moes gegee het' en verleen
geen wyer magte van wysiging as wat in
art 86 bevat is nie. (
R
v Gibson
1956 (2) PH H147 (A).) Aangesien hierdie Hof in die Smith -saak
beslis het dat afsonderlike oortredings daargestel word deur art
31(1)(a) en (b) onderskeidelik, is die vraag vir beslissing gevolglik
of art 86(1) van die Strafproseswet 'n 'wysiging' van die
aanklag
magtig wat daarop neerkom dat 'n nuwe aanklag geskep word, dws dat
een misdryf deur 'n ander vervang word.’
In that matter,
Vivier JA held that the amendment sought amounted to a different
charge and disallowed it.
The
test for the sometimes slippery distinction between an amendment and
a substitution was set out in
S v Kruger &
Andere
2
by
van Heerden JA in the following terms:
‘
Die
begip 'wysiging' veronderstel 'n mate van behoud van dit wat gewysig
word. Indien 'n voorgestelde 'gewysigde' aanklag glad nie
meer met
die oorspronklike aanklag identifiseerbaar is nie, is daar dus nie
sprake van 'n wysiging nie, maar wel van 'n vervanging.
Hierdie
slotsom bring vanselfsprekend mee dat die grens tussen 'n wysiging en
'n vervanging in die praktyk nie altyd maklik te
trek sal wees nie.
In elke geval sal nagegaan moet word of die voorgestelde 'gewysigde'
aanklag tot so 'n mate van die oorspronklike
aanklag verskil dat dit
in wese 'n ander aanklag is.’
The test is
therefore whether the suggested amended charge differs from the
existing one to such an extent that it amounts to another
charge.
If an
amendment is competent on the test set out above, it may be granted
on appeal. This does not resolve the matter, however.
An additional
consideration is that an amendment will only be granted where no
possible prejudice could result to the accused.
3
There is therefore
a two step process which must be undertaken by a court confronted
with an application for an amendment of a
charge on appeal. The
first question is whether what is sought amounts to an amendment or
a substitution of the charge. If it
amounts to an amendment, the
next question is whether it would be prejudicial to the appellant to
grant the amendment.
In order to
determine whether what is proposed in the present matter would
amount to an amendment or a substitution of one charge
for another,
it is necessary to construe the provisions of the Act. Section 3
provides, in its relevant parts, as follows:
‘
Any
person ('A') who unlawfully and intentionally commits an act of
sexual penetration with a complainant ('B'), without the consent
of
B, is guilty of the offence of rape.’
Section 1(1)
provides as follows:
'sexual penetration'
includes any act which causes penetration to any extent whatsoever
by-
(a) the genital
organs of one person into or beyond the genital organs, anus, or
mouth of another person;
(b) any other part
of the body of one person or, any object, including any part of the
body of an animal, into or beyond the genital
organs or anus of
another person; or
(c) the genital
organs of an animal, into or beyond the mouth of another person,
and 'sexually
penetrates' has a corresponding meaning;’
Section 68 provides,
in its relevant parts, as follows:
‘
(1)
The common law relating to the-
(b) crimes of rape .
. .
is hereby repealed.’
What becomes clear
from the relevant parts of the Act is the following. First, it is
not the crime of rape which was abolished,
it is the common law
relating to the crime which was repealed. This means that the crime
of rape remains a crime but has a different
content. This content,
which was previously provided by the common law, is now provided by
s 3 of the Act. The content provided
by s 3 includes that content
previously provided by the common law, namely the penetration of the
genital organ of the complainant
by the genital organ of the
accused. The balance of s 3 includes actions, now construed as rape,
which, under the common law,
did not constitute rape.
As is clear from
the charge sheet in the present matter, the state alleged, in
somewhat clumsy terms, that the genital organ of
the appellant had
penetrated that of the complainant. In other words, the charge sheet
contained averments which constituted
the offence of rape as defined
in s 3 read with the definition of sexual penetration in s 1(1).
This means that the appellant
was not charged for a non-existent
offence. Counsel for the appellant argued, somewhat faintly, that
the lack of any reference
to ‘sexual penetration’ meant
that the charge sheet was deficient. This is not so. An act that
falls within the definition
of sexual penetration was alleged, viz.
the insertion of the accused’s genital organ into that of the
complainant. This
much counsel conceded. The only omission was the
reference to s 3 of the Act referred to above. The charge was of
rape, each
element was alleged and therefore no substitution of the
offence for another would occur. The proposed amendment falls within
the third category of
s 86(1)
of the
Criminal Procedure Act in
that
words or particulars that should have been inserted in the charge
were omitted. The suggested amended charge does not differ
from the
existing one to such an extent that it amounts to another charge. It
simply remedies the omission. It is therefore clear
that what is
sought by the state is an allowable amendment.
The
next question which arises is whether it would be prejudicial to the
appellant to allow the amendment of the charge on appeal.
Counsel
for the appellant could make no submissions in this regard. Neither
can I conceive of any possible prejudice. All of
the elements of the
offence emerged from the charge as put and were proved in court. The
only aspect not mentioned in the charge,
as I have said above, was a
reference to the Act which now gives content to the offence. This
matter is similar to that of
S v Mahlangu
4
where the appellant was charged with and convicted of
the common law offence of bribery. That offence had been repealed
and substituted
by the offence referred to in s1
(1)(a)(i)
of Act 94 of 1992. On appeal it was held that the charge could be
amended to reflect the offence under that section.
The elements were
essentially the same and the defence of the appellant would not have
been presented any differently so there
could be no prejudice. I
respectfully endorse the reasoning of the court in that case which
applies equally to the present matter.
The application to
amend the charge must be granted. Since there is no other basis on
which the appeal against conviction can
succeed, it must be refused.
As
regards sentence, counsel for the appellant submitted that it was
arguable that substantial and compelling circumstances existed
which
ought to have resulted in the magistrate departing from the sentence
of life imprisonment prescribed for this offence under
s 51(1) read
with Part I of Schedule 2 of the
Criminal Law Amendment Act 105 of
1997
. He was not able to make any submission that, on the test set
out in
S v Malgas
,
5
the learned regional magistrate had misdirected himself
in finding that no such circumstances existed. He was also, for good
reason,
unable to submit that the sentence was so startlingly
inappropriate to warrant interference on appeal. As a consequence,
this
court cannot interfere with the sentence. Even if this was not
the case, however, the sentence is appropriate in all the
circumstances.
In the result, I
propose that the appeal against conviction and sentence be
dismissed.
GORVEN J
NKOSI AJ – I
agree
GORVEN J – It
is so ordered.
DATE OF HEARING: 26
May 2011
DATE OF JUDGMENT: 31
May 2011
FOR THE APPELLANT:
Adv J Butler
FOR THE RESPONDENT:
Adv N Buthelezi
1
S
v Barketts Transport (Edms) Bpk en ‘n Ander
1988 (1) SA
157
(A) at 160I-J
2
1989
(1) SA 785
(A) at 796H-J
3
S
v F
1975 (3) SA 167
(T) at 170G-H;
S v Kuse
1990 (1) SACR
191
(E) at 197
a-d
4
1997
(1) SACR 338
(T)
5
2001
(1) SACR 469
(SCA)