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[2009] ZAGPJHC 105
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Mhlango and Others v S (A613/2008) [2009] ZAGPJHC 105 (13 March 2009)
SOUTH GAUTENG HIGH COURT OF SOUTH
AFRICA, JOHANNESBURG
Case No. A613/2008
DPP Ref.. No. JAP2009/0023
Date:13/03/2009
In the matter of:
ROGERS
MHLANGO
..................................................................
First
Appellant
EDWARD PETROS
LANGA
...................................................
Second
Appellant
JUSTICE
PETROS
LANGA
........................................................
Third
Appellant
versus
THE STATE
MEYER, J
[1]
The
Regional Court, Roodepoort convicted each appellant of rape and of
robbery with aggravating circumstances. They were each sentenced
to
life imprisonment for their convictions of rape and to fifteen years’
imprisonment for their convictions of robbery.
Appellant 1 appeals
against his convictions of rape and of robbery and against the
sentences imposed upon him. Appellant 3 appeals
against his
conviction of robbery. Appellants 2 and 3 appeal against the
sentences imposed upon them pursuant to their convictions
of rape.
[2]
On
20 January 2006, at about 9:30 pm, Mr Zwedi Dube, his wife Ms
Bongikile Hlongwane, and their three year old child were forced
out
of their Volkswagen Kombi vehicle by three males. Some of them
assaulted Mr Dube and Ms Hlongwane. The items referred to
in the
charge sheet, including a Motorolla cellular phone, were stolen from
them. Ms Hlongwane was raped by two of their assailants
and
indecently assaulted by one. Neither Mr Dube nor Ms Hlongwane was
able to identify their assailants.
[3]
The
investigating officer, Ms Thobeka Nkosi, through the assistance of
the relevant service provider, traced the Motorolla cellular
phone
that was stolen from Ms Hlongwane to a certain Ms Sihle Lusinga, who
was using it. Ms Lusinga testified that all three appellants
used to
visit the house of her neighbour, Ms Nosithembela Modingi. During
January 2006, Ms Lusinga bought a Nokia cellular phone
from accused
3. This phone was defective and she handed it back to him about a
week later. She was thereafter approached by accused
1, who enquired
from her whether she was the person who bought the Nokia cellular
phone from accused 3. When she confirmed this,
accused 1 told her
that she should rather have referred her complaint about the phone to
him, because ‘he is the one who
was selling the phones not
accused 3.’ He handed her a Motorolla cellular phone in
exchange for the Nokia cellular phone
which she had given back to
accused 3. She used it for about two weeks and then went back to
accused 3 with the complaint that
it was ‘blocked’.
Accused 1 referred her to accused 2, who, according to him, ‘knows
how to unblock phones.’
She went to accused 2, who ‘tried
to unblock the phone but did not succeed.’ She reported back
to accused 1, who
then referred her to other people who were able to
assist her. Ms Modingi also testified. She corroborated Ms
Lusinga’s
evidence that they were neighbours and that all three
appellants used to visit her house regularly since they had been
friends
of her husband, Thomas. The results of DNA testing further
implicated appellants 2 and 3 in the commission of the rapes of which
they were convicted.
[4]
Appellants
1 and 3 raised the defences of alibi. Appellant 1 testified that he
was in Mozambique from 15 November 2005 until 23
February 2005, and
appellant 3 testified that he was in Mozambique from 16 December 2005
until 15 February 2006. Accused 2 also
denied the charges against
him. He testified that he and Ms Hlongwane had known each other
since 2003, and that they had a love
relationship since October 2005
until the day of his arrest on 27 April 2006.
[5]
I
am of the view that, on the totality of the evidence, the learned
regional magistrate correctly inferred, as the only reasonable
inference, that the three appellants were the three males about whom
Mr Dube and Ms Hlongwane testified. It is true that appellant
1 was
not implicated through DNA results, but this was consistent with the
undisputed evidence of Ms Hlongwane that she was raped
by two of the
three males. The involvement of appellant 1 was inferred from the
fact of his association with appellants 2 and
3 and the fact of his
dealings with the stolen cellular phone. The version of appellant 1
that he had no dealings with Ms Lusinga
involving the stolen phone,
that he did not know her, that he did not know appellants 2 and 3,
and that he never visited Ms Modingi’s
residence, cannot, in
the light of all the evidence, be reasonable possibly true. The
record of the proceedings in the regional
court shows that Ms
Lusinga, Ms Modingi, and Ms Nkosi were undoubtedly credible witnesses
and that their evidence was reliable.
The denials of the appellants
that the three of them used to visit at Ms Modingi’s residence
were never put to her when
she testified.
[6]
Mr
Miller, who appears for the appellants, submitted that the learned
regional magistrate should not have convicted appellant 1
of the
crime of rape, but of indecent assault. I agree with this
submission. Appellant 1 did not have intercourse with Ms Hlongwane
on the proven and accepted facts. The learned regional magistrate
misdirected herself in applying the common purpose doctrine
to the
crime of rape [see:
S
v Kimberley
2004 2 SACR 38
E, paras 7 – 16]. The first appellant’s
appeal against his conviction of rape must therefore succeed and such
conviction
must be substituted for one of indecent assault.
[7]
Mr
Miller submitted that appellants 1 and 3 should not have been
convicted of robbery with aggravating circumstances as defined
in
s.
1
of the
Criminal Procedure Act 51 of 1977
. It was submitted that
the presence of such aggravating circumstances was not proved beyond
reasonable doubt. There is, in my
view, no merit in this submission.
Mr Dube was hit on the head with an object, which Ms Hlongwane
described as a ‘plank’.
This assault resulted in
swelling of his head. Ms Hlongwane was kicked in the mouth. They
were made to lie down while their
assailants stole the items from
their vehicle. The harm inflicted upon them, in my view, constituted
‘grievous bodily harm’
within the meaning of
s. 1
of the
Criminal Procedure Act. Mr
Dube was threatened to be killed should
he ‘try any funny tricks’ at the time when his wife had
been taken away to
be raped. Ms Hlongwane was threatened ‘that
they were going to blow [her] brains out’ and one of the
assailants said
‘he was going to shoot’ her. Such
threats, in the light of all the circumstances, were sufficiently
closely connected
to the theft to regard them as connecting
components [see:
S
v Yolelo
1981 (1) SA 1002
(A)].
[8]
Mr
Miller submitted that the learned regional magistrate made no finding
on the existence of aggravating circumstances prior to
convicting the
appellants. The elements of the offence of which an accused person
is convicted must be established before conviction.
I am of the view
that the aggravating circumstances taken into account by the learned
regional magistrate for purposes of sentencing
were indeed
established prior to convicting the appellants. The learned regional
magistrate did not specifically mention her finding
of the presence
of such aggravating circumstances when she convicted the appellants
of robbery. She did, however, refer to ‘count
2’. This
count, in terms of the charges put to the appellants, referred to
aggravating circumstances as the ‘wielding
of a firearm and/or
similar dangerous weapon’. Any defect in that description was
cured by the evidence and the appellants
could not possibly have been
prejudiced. The legal representative for the appellants clearly
understood that they were convicted
of ‘robbery with
aggravating circumstances’ and he conveyed that to each
appellant when they testified in mitigation
of sentence.
[9]
I
am accordingly of the view that the learned regional magistrate
correctly convicted all the appellants of robbery with aggravating
circumstances. The first and third appellants’ appeal against
their convictions of robbery with aggravating circumstances
must
therefore fail.
[10]
Mr
Miller submitted that the Regional Court had no jurisdiction to
impose life imprisonment at the time when the crimes of rape
under
consideration were committed and at the time when the appellants’
criminal trial commenced. He submitted that it was
therefore not
competent for the learned regional magistrate to have imposed
sentences of life imprisonment upon them following
their convictions
of rape. Mr Miller further referred to the limitations upon regional
magistrates’ sentencing jurisdiction
before 31 December 2007,
and, relying on certain common law principles and s 35(3)(n) of the
Constitution, submitted that the appellants
were entitled to the
least of the prescribed punishments.
[11]
Before
its amendment, s 51(1) of the Criminal Law and Procedure Act 105 of
1997 (“the Act”) provided that a High Court
shall
sentence a person to imprisonment for life if it has convicted a
person or if the matter had been referred to it under s
52(1) of that
Act for sentence after the person concerned had been convicted of an
offence referred to in Part 1 of Schedule 2
to the Act. The now
repealed s 52(1) enjoined a Regional Court to stop the proceedings
upon conviction and to commit an accused
for sentence by a High
Court. S. 51(1) was amended and s 52 repealed. With effect from 31
December 2007, a Regional Court may
also sentence a person convicted
of an offence referred to in Part 1 of Schedule 2 to imprisonment for
life. The newly inserted
s 53A specifically empowers a Regional
Court to dispose of the matter if it had, prior to 31 December 2007,
not committed an accused
for sentence by a High Court. The
Legislature did not amend the prescribed minimum sentence of life
imprisonment that should follow
a conviction of certain offences. It
merely enjoins regional magistrates no longer to commit an accused
person for the imposition
of such sentence by a High Court, but
instead to impose it once they have convicted an accused person of
certain offences. The
imposition of the prescribed minimum sentences
is, of course, dependent upon the absence of ‘substantial and
compelling’
circumstances.
[12]
S
51(1) of the Act as amended prescribes imprisonment for life as the
minimum sentence for offences referred to in Part 1 of Schedule
2 to
the Act. Insofar as rape is concerned, Part 1 of Schedule 2 in its
amended form refers to “[r]ape as contemplated in
section 3 of
the Criminal Law (Sexual Offences and Related Matters) Amendment Act,
2007” (“the Sexual Offences Act”).
S 3 of this Act
reads:
“
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.”
Before the
amendment, Part 1 of Schedule 2 referred to common law rape, which is
the unlawful intentional sexual intercourse with
a woman without her
consent.
[13] Mr Miller
submitted that the appellants were not charged with nor convicted of
rape as contemplated in section 3 of the Sexual
Offences Act, but of
common law rape, and, because the crimes of rape of which they were
convicted were no longer referred to in
Part 1 of Schedule 2 after
its amendment, the learned regional magistrate misdirected herself in
sentencing the appellants to imprisonment
for life in terms of s
51(1) of the Act. Mr Miller’s submission on this issue
overlooks the provisions of the Sexual Offences
Act and it ignores
the Legislature’s intention in prescribing minimum sentences
and in extending the common law crime of
rape beyond the act of
sexual intercourse with a woman.
[14] S 68(1)(b) of
the Sexual Offences Act
inter
alia
repealed
the common law relating to the crime of rape. S 3 introduced a
statutory crime in its stead. S 69 reads:
“
69(1) All criminal
proceedings relating to the common law crimes referred to in section
68(1)(b) which were instituted prior to
the commencement of this Act
and which are not concluded before the commencement of this Act must
be continued and concluded in
all respects as if this Act had not
been passed.
An
investigation or prosecution or other legal proceedings in respect
of conduct which would have constituted one of the common
law crimes
referred to in section 68(1)(b) which was initiated before the
commencement of this Act may be concluded, instituted
and continued
as if this Act had not been passed.
Despite the
repeal or amendment of any provision of any law by this act, such
provision, for purposes of the disposal of any investigation,
prosecution or any criminal or legal proceedings contemplated in
subsection (1) or (2), remains in force as if such provision
had not
been repealed or amended.”
[15
] The
criminal proceedings in this instance should accordingly have been
concluded as if the Sexual Offences Act had not been passed.
The
reference to “[r]ape as contemplated in
section 3
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act,
2007
” in
Part 1
of Schedule 2 to the Act must accordingly, in
my view, be read as a reference to “rape” as it was
previously referred
to before its amendment and before the Sexual
Offences Act had been passed. The amendment in Part 1 of Schedule
2 of the common
law crime of rape to the statutory offence created by
s 3 of the Sexual Offences Act is an amendment that was brought about
by
the repeal of the common law relating to the crime of rape in
terms of s 68(1)(b) of this Act and the enactment in s 3 of a
statutory
offence in its stead. The interpretation contended for by
Mr Miller leads to absurdity and is inconsistent with the
Legislature’s
intention, before and after the amendment of the
Act, of ordaining life imprisonment as the sentence that should
“ordinarily
and in the absence of weighty justification”
[see:
S
v Malgas
2001 (2) SA 1222
(SCA), at p 1235G] be imposed for rape committed
under the circumstances listed in Part 1 of Schedule 2 to the Act.
The intention
of the Legislature in enacting ss 3 and 68(1)(b) of the
Sexual Offences Act is to extend the common law crime of rape beyond
the
act of sexual intercourse with a woman.
[16
] The
learned regional magistrate, in my judgment, correctly doubted the
sincerity of the remorse expressed by each appellant and
correctly
found the rapes committed to have been very serious. Giving due
weight, however, to the enormity of the crimes committed
by them, the
impact thereof on particularly Ms Hlongwane and their child, the
public interest in appropriate severe punishments
being imposed, the
personal circumstances of each appellant, their relative youth, their
prospects of rehabilitation, the fact
that they are first offenders,
and the time spent by each one of them in custody awaiting the
finalisation of their criminal trial,
I am of the view that the
learned regional magistrate misdirected herself in finding an absence
of ‘substantial and compelling’
circumstances that
justified the imposition of lesser sentences upon appellants 2 and 3
than the one prescribed for the rapes under
consideration. In my
judgment, sentences of 25 years imprisonment are appropriate.
[17
] The
same conclusion cannot, in my judgment, be reached in respect of the
offences of robbery with aggravating circumstances of
which they were
convicted. The robbery was well planned and premeditated. The first
appellant’s appeal against the sentence
imposed upon him
pursuant to his conviction of robbery with aggravating circumstances
must therefore fail.
[18
] I
have mentioned that the first appellant’s conviction of rape
must be substituted for one of indecent assault. A sentence
of
imprisonment for eight years is, in my judgment, appropriate in
respect of this conviction.
MALAN, J
[1] I agree with the judgment of Meyer
J.
[2] In the result
the appeals of the first and third appellants succeed in part and
that of the second appellant succeeds in whole:
A.
First
Appellant
1. The first
appellant’s conviction of rape and his sentence of life
imprisonment pursuant to such conviction are set aside
and there is
substituted for it a conviction of indecent assault for which he is
sentenced to eight years’ imprisonment,
which sentence is to
run concurrently with his sentence of fifteen years’
imprisonment pursuant to his conviction of the
offence of robbery
with aggravating circumstances.
The first
appellant
’s
appeal against his conviction of robbery with aggravating
circumstances and the sentence imposed upon him pursuant to
such
conviction is dismissed.
B.
Second
Appellant
1.
The
second appellant’s sentence of life imprisonment pursuant to
his conviction of rape is set aside and there is substituted
for it a
sentence of imprisonment for 25 years.
2. The second appellant’s
sentence of fifteen years’ imprisonment pursuant to his
conviction of robbery with aggravating
circumstances is to run
concurrently with his sentence of 25 years’ imprisonment
pursuant to his conviction of rape.
C.
Third
Appelllant
The third appellant’s sentence
of life imprisonment pursuant to his conviction of rape is set aside
and there is substituted
for it a sentence of imprisonment for 25
years.
The third appellant’s sentence
of fifteen years’ imprisonment pursuant to his conviction of
robbery with aggravating
circumstances is to run concurrently with
his sentence of 25 years’ imprisonment pursuant to his
conviction of rape.
The third appellant’s appeal
against his conviction of robbery is dismissed.
F.R. MALAN
JUDGE OF THE HIGH COURT
P.A. MEYER
JUDGE OF THE HIGH COURT
13 March 2009