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[2009] ZAGPPHC 84
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Mokalaka v S (A534/08) [2009] ZAGPPHC 84; 2010 (1) SACR 88 (GNP) (9 June 2009)
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REPORTABLE
IN THE HIGH COURT OF SOUTH
AFRICA
(NORTH AND SOUTH GAUTENG HIGH
COURT, PRETORIA)
Date: 2009-06-09
Case Number:
A534/08
In the matter between:
PETRUS MOKALAKA
Appellant
and
THE STATE
Respondent
JUDGMENT
SOUTHWOOD J &
MAKGOKA AJ
[1]
On
1 June 2004 the appellant was convicted of murder, rape and robbery
in the Klerksdorp regional court and was sentenced to 15
years
imprisonment for the murder, 10 years imprisonment for the rape and
10 years imprisonment for the robbery. The regional
court ordered
that the sentences for the rape and robbery be served concurrently,
effectively sentencing the appellant to 25 years
imprisonment. When
the appellant was sentenced he was already serving a sentence of 12
years imprisonment for a previous conviction
for rape. With the
leave of the court granted on 13 February 2008 the appellant appeals
against the convictions and sentences.
[2] On appeal the appellant’s
counsel has not attacked the convictions for murder and robbery and
confined his submissions
to the conviction for rape. The appellant’s
counsel contends that the state did not prove beyond reasonable doubt
that the
appellant raped the complainant and that his version was
reasonably possibly true. With regard to sentence the appellant’s
counsel argues that the sentence is excessive and that the regional
magistrate did not properly take into account the appellant’s
personal circumstances and his relative youthfulness. The respondent
contends that the convictions and sentences are in order.
[3] The four
witnesses directly involved in the crimes testified that early in the
morning of 9 March 2003 they left a tavern and
started walking home.
S F, the complainant in respect of the rape charge, was walking with
Scotch Motshenana, and Tandiwe Mbenjeng
was walking with Peter
Mahabie. All four had known the appellant for some time. All were
aware of George Madlasie who was walking
a distance behind them.
When they reached the football stadium they heard the appellant
shouting. He was approaching from behind.
When the appellant
reached George Madlasie he stopped and asked George for money. When
George said he had none the appellant
stabbed him with a knife and
stole his ID book and some money. George then managed to escape and
ran away pursued by the appellant.
After a while the appellant
returned and was visibly interested in S F. The appellant walked
with the four witnesses and when
they met another man walking in the
street the appellant approached him and stabbed him in the chest.
This man was found dead
in the street early the next morning. The
appellant then succeeded in separating S F from Scotch and took her
to his home. There
he threatened her with a knife, forced her to
undress and had intercourse with her twice. He allowed her to go
after she promised
not to tell anyone. S then went to her friend
Dipho Mtopo who also gave evidence and reported to her that the
appellant had raped
her. Dipho Mtopo confirmed this in her evidence.
None of this evidence was shown to be untrue or unreliable. The
appellant’s
evidence that he walked with the four state
witnesses as far as the soccer stadium and then left them and went
home with nothing
untoward happening (i.e. complete innocence) rings
hollow and provides no reason for finding that the witnesses
conspired to falsely
implicate him in a murder, a rape and a robbery.
The appellant conceded that all the witnesses knew him and that
there was no
ill feeling between them and him and he was patently
unable to put forward any reason why they would deliberately perjure
themselves.
The regional magistrate correctly rejected the
appellant’s version and found him guilty of rape.
[4] The difficulties which arise in
this case are procedural and are twofold:
(1) Whether the
regional court was properly constituted to try the appellant for
murder; and
(2) Whether the
regional court was entitled to sentence the appellant for the rape
and the robbery.
[5] With regard to
the constitution of the court, section 93ter(1) of the Magistrates
Court Act, 32 of 1944 provides:
‘(1) The
judicial officer presiding at any trial may, if he deems it
expedient for the administration of justice –
(a) before any evidence has been
led; or
(b) in
considering a community-based punishment in respect of any person
who has been convicted of any offence
summon to his
assistance any one or two persons who, in his opinion, may be of
assistance at the trial of the case or in the determination
of a
proper sentence, as the case may be, to sit with him as assessor or
assessors:
Provided
that if an accused is standing trial in the court of a regional
division on a charge of murder, whether together with other
charges
or accused or not, the judicial officer shall at that trial be
assisted by two assessors unless such an accused requests
that the
trial be proceeded with without assessors, whereupon the judicial
officer may in his discretion summon one or two assessors
to assist
him.’
(Our
emphasis).
The proviso is clearly peremptory and
therefore must be complied with. The difficulty in the present case
is that the record does
not show that the proviso was complied with.
It does not reflect that the regional magistrate required the
appellant to elect
whether to proceed with assessors or not.
[6] The effect of
such failure has been considered in three reported judgments with
conflicting conclusions. In
S
v Khambule
1999
(2) SACR 365
(O)
at
367e-g and
S
v Titus
2005
(2) SACR 204
(NC)
at
209d-f the courts decided that the proviso prescribes how the
regional court must be constituted in a murder trial and that
non-compliance with these peremptory provisions is
per
se
grossly
irregular. Accordingly the courts set aside the convictions and
sentences. In
S
v Naicker
2008
(3) SACR 54
(N)
at
62b-f the court did not agree with these decisions (that the
irregularity vitiated the proceedings) and that, absent prejudice
to
the appellant, the irregularity was of no consequence.
[7] I prefer the
reasoning of the courts in
S
v Khambule supra
and
S
v Titus supra.
The
issue is the constitution of the court. If the court is not properly
constituted it has no power to hear the matter; the proceedings
are
irregular and must be set aside. The court is in the same position
as a court which lacks jurisdiction. This conclusion is
consistent
with decisions in which proceedings were set aside because the
assessor, who was part of the court, did not participate
in the
court’s deliberations – see
S
v Ndzamdela and Another
1990
(2) SACR 282
(TKA);
S
v Daniels and Another
1997
(2) SACR 230
(T)
and
S
v Van der Merwe
1997
(2) SACR 230
(T).
[8] The conviction and sentence for
murder must therefore be set aside.
[9] With regard to
sentence, the rape complainant, Filander, testified that the
appellant raped her twice. In terms of section
51(1) of Act 105 of
1997 read with Part I of Schedule 2 to that Act (as they read prior
to their amendment by Act 38 of 2007 on
31 December 2007) the
prescribed sentence was life imprisonment and in terms of section
52(1) of Act 105 of 1997 the regional court
was obliged to stop the
proceedings and refer the matter to the High Court for sentencing –
see
Direkteur
van Openbare Vervolgings, Transvaal v Makwetsja
2004
(2) SACR 1
(T)
paras
23, 29 and 30. In terms of section 52A of the Act the regional
magistrate was not empowered to sentence the appellant for
any other
offence. Since the regional magistrate proceeded to sentence the
appellant the sentence for rape (and the other sentences)
was a
nullity and on appeal the court must set aside the sentences imposed
and refer the matter to the appropriate court for sentencing
–
see
S
v Liau
2005
(1) SACR 498
(T)
at
500g-h and 503f-h. As pointed out in the unreported judgment of the
full court in
S
v Sydney Camako
TPD
Case No A450/2007 delivered 18 September 2008 para 5 the Criminal Law
(Sentencing) Amendment Act 38 of 2007 (which commenced
on 31 December
2007) has altered radically the power of the regional court regarding
sentencing for offences referred to in Part
I of Schedule 2 of Act
105 of 1997. It introduced a new section 51(1) which provides that a
regional court has the power to sentence
a person to imprisonment for
life when it convicts that person of an offence referred to in Part I
of Schedule 2 of Act 105 of
1997 and shall do so subject to
subsections (3) and (6). It also repealed section 52 of Act 105 of
1997 which required the regional
magistrate to stop the proceedings
and refer the matter to the High Court for sentencing.
[10] Act 38 of 2007
also introduced a new section 53A containing transitional provisions
which are applicable in the instant case.
The effect of these
provisions is that the appropriate court to impose the sentence is
the regional court. The sentences imposed
for rape and robbery must
be set aside and referred back to the regional court for sentencing
in terms of the relevant provisions
of Act 105 of 1997 as amended by
Act 38 of 2007.
Order
[11] I The appeal is upheld insofar as
–
(1) the
conviction and sentence for murder are set aside;
(2) the sentences
imposed for rape (count 2) and robbery (count 4) are set aside.
II The murder
charge (count 1) is referred back to the regional court for
prosecution
de
novo
if
the Director of Public Prosecutions is so advised;
III The
matter
is referred back to the regional court for sentence to be imposed in
respect of the rape (count 2) and the robbery (count
4) in terms of
section 51(1) read with Part I of Schedule 2 of Act 105 of 1997 as
amended by Act 38 of 2007;
IV The appeal
against the convictions for rape (count 2) and robbery (count 4) is
dismissed.
_______________________
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT
________________________
T.M. MAKGOKA
ACTING JUDGE OF THE HIGH COURT
CASE NO:
A534/2008
HEARD
ON: 17 March 2009
FOR
THE APPELLANT: ADV. A.M. VIVIERS
INSTRUCTED
BY: Legal Aid Board
FOR
THE RESPONDENT: ADV. L. SWART
INSTRUCTED
BY: Director of Public Prosecutions
DATE
OF JUDGMENT: 9 June 2009