Seboko v S (CA&R 68/08) [2009] ZANCHC 18; 2009 (2) SACR 573 (NCK) (8 May 2009)

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[2009] ZANCHC 18
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Seboko v S (CA&R 68/08) [2009] ZANCHC 18; 2009 (2) SACR 573 (NCK) (8 May 2009)

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IN
THE HIGH COURT OF SOUTH AFRICA
[Northern Cape
High Court, Kimberley]
Case
no: CA&R 68/08
Date
heard:
2009-05-04
Date
delivered:
2009-05-08
In
the appeal of
:
MOSES
SEBOKO
APPELLANT
versus
THE
STATE
RESPONDENT
Coram:
MAJIEDT
J
et
HENRIQUES
AJ
JUDG
MENT
ON APPEAL
MAJIEDT J:
A
n
oft stated complaint against the administration of justice is that
the wheels of justice grind too slowly. That complaint can,

regrettably, with justification be levelled in this appeal. The
Appellant, who was unrepresented at the trial, had been convicted
on
two counts of rape and sentenced to 15 years imprisonment on each
the said charges (i.e. 30 years imprisonment in total) and
he was
granted leave to appeal to this Court on petition as long ago as 20
May 2005. Leave was granted in respect of his conviction
on count 2
as well as the sentences imposed on both counts, 1 and 2. The
inordinate delay in having the matter enrolled,
has not been
explained at all. Furthermore, the Appellant had been convicted and
sentenced on 5 May 2000. His application for
leave to appeal was
refused on 13 July 2000. Numerous letters written from prison by
the Appellant to the relevant authorities
had done little to
expedite his appeal.
As
stated, the Appellant
’s
appeal is with the leave of this Court against his conviction on
Count 2 and against the sentences imposed on both counts.
The fact
that these two rape incidents occurred during 1997 (count 1) and
1998 (count 2) respectively, vividly illustrate my
concerns
adumbrated in the preceding paragraph. The eventual outcome of this
appeal, substantially exacerbates the matter.
The
nub of the matter with regard to the Appellant’s conviction on
count 2 is whether the reception of hearsay evidence by the
trial
court had rendered the Appellant’s trial unfair to the extent that
the proceedings should
be
vitiated. In respect of sentence, the crux of the matter is whether
the sentences imposed are of sufficient severity to render
same
shockingly inappropriate. Mr. Setouto for the Appellant has
attacked the conviction and sentence on wide-ranging grounds,

including the reception of the hearsay evidence by the trial court.
Ms Mabaso on behalf of the State had originally supported
the
conviction and sentence in her written Heads of Argument, but has
very properly conceded during oral argument that the conviction
on
count 2 is untenable in law.
In
respect of the conviction on count 2, I propose dealing with the
evidence somewhat
succinctly,
given the fact that the decision on the correctness of that
conviction will eventually turn on the reception of the
hearsay
evidence as set forth above. The Appellant was charged with having
had intercourse with the complainant without the
latter’s consent
on 25 May 1998. The complainant had, regrettably, passed away prior
to the trial’s commencement. At the
hearing, the prosecutor
advised the Regional Magistrate of that fact and also handed in a
death certificate in respect of the
complainant. He applied, on the
basis of section 3 of the Law of Evidence Amendment Act, 45 of 1988
(
“the
Amendment Act
”)
for the trial court to receive hearsay evidence in respect of the
complainant’s oral reports regarding the alleged rape
to
inter
alia
a
policewoman and other lay witnesses and also concerning the pointing
out of the scene by the complainant. The prosecutor contended
that
the reception of this evidence would be in the interests of justice
and also indicated to the trial court that the State
would ask for
this evidence to be received, not as proof of the contents of the
allegations, but as part of the circumstantial
evidence regarding
the objective facts which had occurred on the day in question.
I
deem it of sufficient importance to repeat verbatim the prosecutor’s
concluding remarks in respect of the application to receive
the
hearsay evidence as aforementioned and also the
Regional
Magistrate’s response thereto. The exchange went thus:
“
AANKLAER:
Die
Staat sal nie aanvoer dat die getuienis deur die Hof aanvaar te word
as bewys van die inhoud of die waarheid van die beweringe
wat gemaak
is nie. Die Staat sal bloot aanvoer dat die Hof dit wel in ag neem
as omstandigheidsgetuienis van objektiewe feite
wat plaasgevind het
nadat ‘n voorval na bewering plaasgevind het en is die Staat dus
van oordeel, op grond van dit wat ek op
hierdie stadium gesê
het, dat die Hof hierdie sodanige getuienis in hierdie lig behoort te
beskou en dit aan die einde van
die dag te oorweeg om dit wel toe te
laat Edelagbare.
HOF
: Meneer,
u kan voortgaan om die getuienis aan te bied. Ek sal later my redes
in hierdie verband gee.”
The difficulty
that arises is twofold, namely:
a) That
the
Regional
Magistrate did not explain at this juncture or at any other stage
during the trial to the Appellant, who was unrepresented
throughout
the trial (having dismissed his erstwhile legal representative who
was instructed by the Legal Aid Board and having
declined the offer
to engage another legal representative), as to the meaning and import
of this particular provision, and
b) The
Regional Magistrate did not make a ruling on this hearsay evidence at
any stage during the trial and more particularly at
the stage when
the State had closed its case, in order that the Appellant could be
fully cognisant of the totality of the evidentiary
material against
him.
The
following facts were common cause at the trial, or were not
seriously disputed by the Appellant
,
with regards to count 2:
a)
While
on her way to catch her lift to work at approximately 6 am
during the morning of 25 May 1998, the complainant was accosted
by a
man in a footpath which had adjoining bushes;
b) That
the complainant had been dragged into the bushes, where this
man
had intercourse with her without her consent;
c) That
the complainant had afterwards made certain reports to her
co-passengers in a motor vehicle which was her regular transportation

to her place of work as well as to a policewoman thereafter;
d) That,
having been examined by the district surgeon, certain specimens were
taken from the complainant’s vagina, her blood and
her hair and
later transmitted to the police’s forensic laboratory together with
specimens of the Appellant’s hair, blood and
penis;
e) That forensic
analysis showed that the Appellant’s sperm was found to be present
in the complainant’s vagina.
f) That, based on
the medical examination later the same day and J88 medical report
handed in as an exhibit, the complainant had
indeed been forcibly
penetrated earlier that day.
The
State called a number of witnesses to testify on count 2 against the
Appellant
,
who in turn was the sole defence witness. The Appellant proffered
an alibi defence in his testimony. I do not deem it necessary
to
deal with the evidence in much detail, given the eventual conclusion
herein. Suffice to state that, excluding momentarily
the hearsay
evidence, the State had established a formidable case based on
circumstantial evidence against the Appellant. Indicators
of the
Appellant’s guilt beyond reasonable doubt are in my view the
following:
a)
Primarily
and conclusively, the DNA evidence which incriminates the Appellant
as the rapist on the day in question, having regard
to the fact, as I
have stated, that forensic analysis showed conclusively that the
Appellant’s sperm was found to have been
present in the
complainant’s vagina. In this regard, the evidence of the expert
witness was that the DNA STR-profile of the
Appellant’s spermatozoa
was found to match that of the foreign material in the complainant’s
vagina.
b) A
footprint, matching in size and in pattern that of the sport
shoe worn by the Appellant on the day in question, was found at the
scene by a footprint expert, although the footprint was not
of
sufficient clarity to be lifted so that points of comparison could be
prepared on a court chart as is usually the case.
c) A
witness, Mr. Seekoei, whom the Regional Magistrate correctly in my
view found to be a credible witness, testified that he had
seen the
Appellant, who was well known to him, in the vicinity of the scene of
the alleged rape immediately prior to the witness
having met up with
the complainant in the vehicle in which they travelled to work
together, whereafter the complainant made a report
to him.
d) The
complainant’s emotional state of shock and her general condition of
untidiness is an indication that something untoward
must have
happened to her that morning (this particular evidence emanating from
the police witnesses as well as from the complainant’s

co-passengers in the motor vehicle alluded to hereinbefore, does not
constitute hearsay; it is simply the impressions formed firsthand
by
these particular witnesses themselves).
e) The
Appellant’s untruthful testimony and alibi defence which were
correctly rejected as false beyond reasonable doubt.
I
have no doubt whatsoever that the DNA evidence,
corroborated
by the other circumstantial evidence and the factors enumerated
above in the preceding paragraph, overwhelmingly
proved the charge
of rape against the Appellant. The crucial aspect for adjudication,
however, is whether the Appellant had
received a fair trial in
respect of the reception of the hearsay evidence and the procedure
followed at the trial. I turn now
to discuss and decide this
particular aspect.
Section
3 of the Amendment Act reads
as
follows:
“
Hearsay
evidence
(1)
Subject
to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings,
unless-
(a) each party against whom
the evidence is to be adduced agrees to the admission thereof as
evidence at such proceedings;
(b) the person upon whose
credibility the probative value of such evidence depends, himself
testifies at such proceedings; or
(c) the court, having regard
to-
(i) the nature of the
proceedings;
(ii) the nature of the
evidence;
(iii) the purpose for which
the evidence is tendered;
(iv) the probative value of
the evidence;
(v) the reason why the
evidence is not given by the person upon whose credibility the
probative value of such evidence depends;
(vi) any prejudice to a party
which the admission of such evidence might entail; and
(vii) any other factor which
should in the opinion of the court be taken into account,
is of the opinion that such
evidence should be admitted in the interests of justice.
(2)
The
provisions of subsection (1) shall not render admissible any evidence
which is inadmissible on any ground other than that such
evidence is
hearsay evidence.
(3)
Hearsay
evidence may be provisionally admitted in terms of subsection (1)(b)
if the court is informed that the person upon whose
credibility the
probative value of such evidence depends, will himself testify in
such proceedings: Provided that if such person
does not later testify
in such proceedings, the hearsay evidence shall be left out of
account unless the hearsay evidence is admitted
in terms of paragraph
(a) of subsection (1) or is admitted by the court in terms of
paragraph (c) of that subsection.”
The
Appellant did not consent to the introduction of the hearsay
evidence; in fact, his views were never canvassed.
It
is evident that the reception of the hearsay in the present matter
would fall under the provisions contained in section 3(1)(c)
of the
Amendment Act. In
Key
v Attorney General, Cape Provincial Division and Another
1996(2)
SACR 113 (CC) at para [13], the Court held that
unconstitutionally obtained evidence which would render a trial
unfair must be excluded, since it would not be in the interests of
justice to have same admitted as evidence against an accused
person.
In
S
v Ramavhale
1996(1)
SACR 639 (A) at 649 d-e Schutz JA warned that
“
a judge
should hesitate long in admitting or relying on hearsay evidence
which plays a decisive or even significant part in convicti
ng
an accused, unless there are compelling justifications for doing so.”
It is, with
respect, correct as the learned Judge of Appeal observed, that
“
an accused usually has
enough to contend with without expecting him also to engage in mortal
combat with the absent witness.”
[at
647
a-b].
In
S
v Ndhlovu and Others
2002(2)
SACR 325 (SCA) at para [18], 338 b-c, Cameron JA (as he then was),
in cautioning that a trial court must be scrupulous
to ensure
respect for an accused person’s fundamental right to a fair trial,
stated that:
“
[18]
Third,
an accused cannot be ambushed by the late or unheralded admission of
hearsay evidence. The trial court must be asked clearly
and timeously
to consider and rule on its admissibility. This cannot be done for
the first time at the end of the trial, nor in
argument, still less
in the court's judgment, nor on appeal. The prosecution, before
closing its case, must clearly signal its
intention to invoke the
provisions of the Act, and,
before
the State closes its case, the trial Judge must rule on
admissibility, so that the accused can appreciate the full
evidentiary
ambit he or she faces.”
(emphasis
supplied).
In
S
v Molimi and Another
2006(2)
SACR 8 (SCA) the central question before the Court was whether,
in the circumstances of that case, the reception
of hearsay evidence
was unfair to the Appellants and therefore not in the interests of
justice. At para [27], 18 c-d, Cachalia
AJA (as he then was),
stated that:
“
[27]
The
trial Court's admission of the evidence 'provisionally' was
regrettable. The Act allows the admission of hearsay evidence on
a
provisional basis when 'the person upon whose credibility the
probative value of such evidence depends, himself testifies (later)

at such proceedings.' If the person does not testify the evidence
must be left out of account. However, there is no such requirement

when the hearsay evidence is required to be admitted in the
'interests of justice'. In such a case, as Ndhlovu makes clear, 'the

trial Judge must rule on its admissibility so that the accused can
appreciate the full evidentiary ambit he or she faces'. A
vague
provisional ruling, as was made in this case, is not conducive to
such an appreciation and may be prejudicial to an accused.
It
conflates the admissibility of the evidence with its weight and may
leave an accused unfairly in a state of uncertainty.”
In
the present matter, the
Regional
Magistrate simply stated that the prosecutor can proceed with
leading the hearsay evidence and that he would furnish
his reasons
later. At no stage did the Regional Magistrate explain to the
accused the meaning, substance and import of the subsection
as
opposed to the common law position with regard to hearsay evidence.
In
S
v Ndhlovu,
supra
at
para [17], 337 f, Cameron JA stated that
“
.. the
Act cannot be applied against an unrepresented accused to whom the
significance of its provisions have not been explained.
“
The
learned Judge of Appeal referred to an earlier decision
of
Didcott J in
S
v Ngwani
1990(1)
SACR 449 (N) at 450 d where the learned Judge stated as
follows:
“
'The
accused, who was unrepresented, had to have the effect of the
subsection fully explained to him, in contrast with the legal

position were it not invoked. He then had to be heard on the issue
whether it should be invoked. In particular, he had to be
heard on
the important one raised by para (vi), the issue whether he would be
prejudiced were it to be invoked.'”
Furthermore,
the
Regional
Magistrate did not make a final ruling on whether the hearsay
evidence is to be admitted or not at the end of the State’s
case,
so that the Appellant could be fully cognisant of the totality of the
State’s case against him. As had been held in the
decisions above,
namely
S
v Ndhlovu
and
S
v Molimi
,
this was a gross irregularity on the part of the Regional Magistrate.
In
his judgment the
Regional
Magistrate indicated that he had admitted the hearsay evidence
provisionally only. He put it thus:
“
Om dit
in leketaal saam te vat dink ek dan die Aanklaer het die Hof versoek
om te sê kyk na al die getuienis wat voor u is
en besluit later
watter afleiding daaruit gevorm moet word. In die lig daarvan het ek
hierdie getuienis voorlopig toegelaat.”
Later
in
the judgment, having discussed the provisions contained in sec 3
of the Amendment Act, the Regional Magistrate said the
following:
“
Die
hoorsê-getuienis rondom wie hierdie klaagster gesê het
wie haar verkrag het
,
gaan ek nie aanvaar nie. Ek kyk meer na die omstandighede wat voor
my geplaas is.
Dit is meer
na die toestand, die emosionele toestand van die klaagster en ook wat
sy sou sê wat het met haar gebeur.”
The
provisional admission of the evidence
by the Regional Magistrate was a misdirection. The provisions of sec
3(3), quoted above, does not apply here at all, for in the
present
matter the person upon whose credibility the probative value of the
hearsay evidence depends did not and could not have
testified later,
since that person (the complainant) was deceased at that time.
Consequently,
as I have stated, the Regional Magistrate should have made a ruling
based on the provisions contained in sec 3(1)(c).
Compare:
S
v Molimi and Another,
supra
,
at para [27], 18 c-d.
What
is the effect of this
gross
irregularity? It is trite that not every irregularity renders a
trial to be vitiated; it is only those irregularities
which
constitute such a gross departure from established rules of
procedure that an accused person has not been properly tried
thus
resulting in a failure of justice, which would have the effect of
vitiating the proceedings.
See:
S
v Moodie
1961(4) SA 752 (A) at 758 F-G; 760 G-H.
In
the present matter I am of the view that the unrepresented Appellant
was severely prejudiced by these gross irregularities, in
the
following respects:
a) the
Regional Magistrate’s failure to explain the meaning and import of
sec 3 of the Amendment Act to him fully and to contrast
that with the
common law position in respect of the inadmissibility of hearsay
evidence; and
b) the
Regional
Magistrate’s failure to make a ruling at the end of the State’s
case as to the admissibility of the hearsay evidence,
so that the
Appellant fully understands what the totality and ambit of the
State’s case which he had to answer was against him.
In
my view it matters not that the Appellant did indeed testify and was
quite clearly
,
as correctly found by the Regional Magistrate, untruthful in many
material respects. It matters even less that, on a conspectus
of all
the evidence, in particular the overwhelming circumstantial evidence
against the Appellant and his material untruthfulness
as aforestated,
that the State had proved beyond reasonable doubt that the Appellant
had indeed raped the complainant on count
2. Justice must be seen to
be done, particularly so in a constitutional dispensation. The
Appellant has had a grossly unfair
trial and in my view the prejudice
which ensued therefrom is so serious that the conviction on count 2
cannot stand.
With
regard to the sentence on count 1, the Appellant was correctly
convicted of raping a young lady who was 17 years of
age at the time
and a scholar. The complainant had been accosted in broad daylight
by the Appellant who had threatened her with
a knife, whereafter he
had dragged her to nearby bushes and raped her. At that time the
complainant had her monthly menstrual
cycle. Apart from a
superficial laceration on the labia minora, the complainant
sustained no other physical injuries. It should,
however, be
self-evident that she must have suffered
severe
psychological trauma due to the ordeal.
The
Appellant was 31 years of age at the time of sentencing. He had
been employed at the Beeshoek mine prior to his arrest.
He was in a
cohabitation relationship with a woman for approximately four years
and had fathered a child of two years in this
relationship.
He was the sole breadwinner in this family. At the time of
sentencing the Appellant had been in custody awaiting trial for

nearly two years. He has a number of previous convictions,
including three involving an element of assault, namely:
a) in 1986 he was
sentenced to 7 lashes with a light cane for rape;
b) in 1990 a
sentence of 5 years imprisonment, of which 3 years were conditionally
suspended for 4 years, was imposed on the Appellant
for attempted
rape; and
c) in 1991, the
Appellant was sentenced to 3 years imprisonment for robbery where a
firearm was used.
From
the above exposition, it is readily apparent that there
are
no exceptional mitigating circumstances in Appellant’s favour,
save for the fact that he had been gainfully employed in
the past
and had supported his family. He is no stranger to violent crime
and to prison. Of particular concern is the Appellant’s
apparent
propensity to commit (or attempt to) rape. He is quite clearly a
danger to society in this respect. Quite rightly
the Regional
Magistrate emphasized the frequency of rape in this area and also
the brazenness of the Appellant’s attack, which
happened in broad
daylight in a public place (albeit in a bushy area, which enabled
him to conceal his vile act from passersby).
Rape is indeed a
scourge in this province – the Northern Cape is the unenviable
leader of the pack when it comes to rape statistics.
On
a conspectus of all the relevant factors
,
having regard to sentencing objectives and while mindful of the
limited powers of an appeal court in respect of sentencing,
I am of
the view that the sentence is shockingly excessive. This sentence
was imposed in the exercise of the trial court’s
usual sentencing
discretion, i.e. outside the ambit of the minimum sentencing regime
introduced by Act 105 of 1997 (which came
into operation on 1 May
1998, the present offence having been committed prior to that date).
The sentence induces a sense of
shock when one has regard to the
Appellant’s personal circumstances, the nature and gravity of the
offence and the interests
of society.
Our
Courts have given recognition to the fact that
not
all rapes deserve equal punishment.
See,
inter
alia
:
S
v Abrahams
2002(1) SACR 116 (SCA) at para [29] 127 c-e;
S
v Mahomotsa
2002(2) SACR 435 (SCA) at paras [17] – [19], 443 f – 444 e;
S
v
Nkomo
2007(2) SACR 198 (SCA) at para [21], 205 h.
Imprisonment of
15 years is a sentence which should in my view, particularly where a
sentencing Court has an unfettered discretion,
be reserved for the
more serious cases of rape where, for example, serious bodily and/or
psychological injuries are inflicted or
where a perpetrator acts in a
particularly vile and callous manner. The present case does not fall
into that category.
The
Regional
Magistrate did not, in my view, lay sufficient emphasis on the fact
that the Appellant had been in custody awaiting trial
for nearly two
years. In
S
v Brophy and Another
2007(2)
SA 56 (W) at paras [16] – [19], 59 b – 60 b, the Court
approved of other preceding
dictae
that
imprisonment while awaiting trial is equivalent to a sentence of
twice that length.
See also:
S
v Stephen and Another
1994(2) SACR 163 (W) at 168 f.
While
not necessarily subscribing to the exactitude of the aforementioned
equation, I support the general approach in respect of
custody while
awaiting trial.
In my view a
sentence of 10 years imprisonment would be more appropriate to the
crime, the criminal and the interests of society
in this case.
The following
order is issued:
24.1 The
appeal against conviction on count 2 is upheld. The Appellant’s
conviction
and
sentence on count 2 is set aside.
24.2 The
appeal against the sentence on count 1 is upheld. The Appellant’s
sentence of 15 years imprisonment is set aside and
replaced with one
of 10 years imprisonment.
24.3 The
sentence of 10 years imprisonment on count 1 is antedated to 5 May
2000.
___________
________
SA MAJIEDT
JUDGE
I
concur:
___________
JI HENRIQUES
ACTING
JUDGE
FOR THE
APPELLANT :
ADV
SETOUTOU
INSTRUCTED
BY :
LEGAL
AID BOARD
FOR THE
RESPONDENT :
ADV
MABASO
INSTRUCTED
BY
: DPP