S v De Klerk (342/2004) [2006] ZANCHC 14 (1 March 2006)

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[2006] ZANCHC 14
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S v De Klerk (342/2004) [2006] ZANCHC 14 (1 March 2006)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr: 342/2004
Case
Heard: 13/02/2006
Date
delivered: /03/2006
In
the matter:
Jan
de Klerk Appellant
versus
The
State Respondent
Coram:
Kgomo JP
et
Lacock J
et
Williams J
JUDGMENT
KGOMO
JP:
The
five accused in this case appeared in the Regional Court sitting at
Delportshoop, Northern Cape, on one charge (Count 1) of
rape and
another (Count 2) of assault with the intent to do grievous bodily
harm. Only one of the accused, Mr Jan de Klerk who
was Accused 2 at
the trial (henceforth “the appellant”), appeals against his
sentence of life imprisonment with the leave of
the sentencing
court,
Majiedt J
.
Accused
1 (Mr Karel Titus), the aforesaid appellant (Accused 2), Accused 3
(Ms Gloria Morwe) and Accused 4 (Mr Michael Mabe) were
convicted as
charged. Accused 5 (Mr Barendt Morwane) was found not guilty and
was discharged. By virtue thereof that this was
a multiple rape
case the Regional Magistrate invoked the provisions of
Section 52
(1) of the
Criminal Law Amendment Act, 105 of 1997
, and committed
the appellant and accused 3 and 4 to the High Court for sentencing.
As
far as accused 1, Mr Titus, was concerned the Regional Magistrate
was, correctly so, of the view that seeing that he was under
16
years, and in fact 15 years old, when the offence was committed the
provisions of
section 51
relating to the minimum sentence were not
applicable to him. See
Section 51
(6). The Magistrate then
proceeded to sentence accused 1 to 10 (ten) years imprisonment
whereof 4 (four) years imprisonment were
suspended for 5 (five)
years on condition that he was not convicted of rape or attempted
rape committed during the period of suspension.
I revert later to
the propriety or impropriety of the Magistrate’s fragmentation of
the sentencing phase of an already fragmented
procedure.
According
to the accepted evidence of the complainant accused 1 and the
appellant had penetrative sexual intercourse with her.
The
forensic DNA genetic material analysed confirm that a mixture of
semen was found on the swabs taken from the complainant.
Accused 3,
the only woman amongst the accused, was physiologically evidently
incapable of have penetrative sexual relations with
the complainant.
Accused 4 declined to have sexual intercourse with the complainant
on the invitation of accused 1. Accused 3
and 4 were accordingly
convicted as accomplices on the strength of their participation in
the crime in that they were involved
in the abduction of the
complainant from her home, holding her to enable accused 1 and the
appellant to rape her and accused 3
burned complainant’s private
parts afterwards.
On
these facts I am satisfied that there had been a multiple rape
situation brought about by accused 1 and the appellant and that
the
Magistrate competently committed the appellant to the High Court for
sentence. This case is to be distinguished from
S
v Kimberley and Another
2005 (2) SACR 663
(SCA
)
where the complainant was raped by only one man and then only once
and the appellant in that case merely held the complainant
down to
facilitate the rape or aid the rapist.
At
p668g-669e (paras 9-11) of
S
v Kimberley
Zulman
JA
stated:
“
[9] The
Act is concerned in s 51(1) to deal with what it terms the imposition
of 'minimum sentences for certain serious offences'.
In the case of
what may be described as 'ordinary' rapes not falling within the
ambit of Part I of Schedule 2, these attract a minimum
sentence of
ten years' imprisonment for a first offender (Part III of Schedule
2). (Both appellants are first offenders.) Accordingly
the rapes
referred to in Part I of Schedule 2 which attract a minimum sentence
of life imprisonment are obviously of a more serious
nature. The
'mischief' which the Legislature sought to deal with, in my view, was
the situation where a woman is subjected to multiple
rapes either by
one person or by any 'co-perpetrator or accomplice'. Paragraph (a)(i)
of Schedule 2 covers the situation where 'the
victim was raped more
than once'. Paragraph (a)(ii) also deals with the situation where the
victim is raped by more than one person
in the 'execution or
furtherance of a common purpose or conspiracy'. ”
In
my view, there is a further jurisdictional factor that entitled the
Magistrate to refer the case to the High Court for sentence.
Part 1
of Schedule 2 of the Act provides that a High Court shall have
jurisdiction to impose life imprisonment on an offender
who has been
convicted of Rape:
“
(a) when
committed-
………………………………………………………………………………………
.
By
more than one person, where such person acted in the execution or
furtherance of a common purpose or conspiracy.”
A
common purpose had been established in this case. See:
S
v Mgedezi & Others
1989 (1) SA 687
(A
) at
705j-706c.
Majiedt
J
, having satisfied
himself that the convictions of the appellant, accused 3 and 4 are
in order, proceeded to sentence them as follows:
Appellant
:
On the Rape, life imprisonment and on the assault (Count 2) 2(two)
years imprisonment;
Accused
3
: On the Rape, 16
(sixteen) years imprisonment and on the assault: 2 (two) years
imprisonment;
Accused
4
: On the Rape, 12
(twelve) years imprisonment and on the assault: 18 (eighteen)
months imprisonment.
It was then ordered
that the sentences in Count 2 of assault run concurrently with those
of Rape in Count 1 in respect of each accused
including the
appellant.
Lacock
J
, elsewhere in this
judgment, says that the wording of section 52 (1) is unequivocal
that only the accused who has been convicted
of vaginal penetrative
sexual intercourse had to be committed to the High Court for
sentence. He abstracts and underscores the
phrases
“after
it (the regional court) has convicted an accused of an offence
referred to in Schedule 2”
and later
“in excess of
the jurisdiction of a regional court in terms of s51”
in section 52 (1) to reach such conclusion. I disagree with his
narrow interpretation. No useful purpose will be served in
repeating
the points he makes because they speak for themselves. I
prefer to deal with how I construe the section and its related
provisions.
I
wish to commence with the uncanny similarities in the wording in the
aforequoted section 52 (1) of the Act and
section 116
(1) of the
Criminal Procedure Act 51 of 1977
. This section stipulates:
“
116
(1)
If a magistrate's court, after conviction following on a plea of not
guilty but before sentence, is of the opinion-
(a) that the offence
in respect of which the accused has been convicted is of such a
nature or magnitude that it merits punishment
in excess of the
jurisdiction of a magistrate's court;
(b) that
the previous convictions of the accused are such that the offence in
respect of which the accused has been convicted merits
punishment in
excess of the jurisdiction of a magistrate's court; or
(c) that the accused
is a person referred to in
section 286A
(1), the court shall stop the
proceedings and commit the accused for sentence by a regional court
having jurisdiction.”
In
S v Dzukuda and
Others
[2000] ZACC 16
;
2000 (2)
SACR 443
(CC
) at 457j –
458d (paras 15 en 16) the Constitutional Court states:
“
[15]
Lewis J
correctly pointed out that the split procedure, where an accused is
convicted in one court and sentenced in another, is not something
new, but that
s 116
of the
Criminal Procedure Act 51 of 197
7 (the
CPA) provides for the referral of an accused for sentence from a
district court to a regional court; indeed
s 52
of the Act is, in
regard to pleas of guilty, modelled on
s 114
of the CPA and in regard
to pleas of not guilty, modelled on the provisions of
s 116.
Section
116
of the CPA has been implemented and reviewed by the Courts for
many years but, as correctly observed by the High Court, this does
not by itself establish that it, or any comparable procedure, passes
constitutional muster. The learned Judge drew attention to the
fact
that the implementation of
s 116
had been the subject of adverse
criticism in cases such as
S
v Ngubane
(1991 (1) SACR 163
(N) at 165i-j) and
S
v Cele and Others
,
(1994 (1) SACR 616
(N) at 619f-g) in which the advantages of sentence
being imposed by the same court have been stressed.
[16] It
is unfruitful, in my view, to consider whether, as the High Court
concluded, there are significant differences between
s 116
of the CPA
and
s 52
of the Act, which place the accused under the latter in a
substantially inferior position compared with that of an accused
under
the former. This comparison does not assist in determining
whether the split procedure under
s 52
infringes the accused's right
to a fair trial. The question is whether the procedure under
s 52
is
fair, not whether it is inferior to
s 116
of the CPA.”
I
am not aware whether the debate alluded to by
Lewis
J
(as she then was) has
ever been propounded upon or finally decided by the Supreme Court of
Appeal or the Constitutional Court relating
to the question whether
all the accused convicted in a district court ought to be
transferred to the regional court.
In
casu
the Regional Court
was fully entitled to sentence accused 1 (Mr Titus) because the
provisions of the minimum sentences were not
applicable to him and
the Magistrate retained his jurisdiction. See:
S
v Cele & Others
(supra) and
S v
Ebrahim
1999 (1)
SACR 106
(C
).
Having
made the finding in para 12 of this judgment it must not on that
basis be concluded that a regional magistrate, once the
jurisdictional fact that has been established that he/she was
entitled to commit an accused or some of them to the High Court for
sentence, they would
ipso
facto
be prohibited from
referring unaffected accused to the High Court. I am strengthened in
this view by the following remarks:
In
S
v Dzukuda
(
supra
)
at 459g-j (para 21)as a High Court becomes a Court of first
instance: “
….
Section 52(3)(d)
of the Act enables all evidential material
relevant to sentencing to be placed before the High Court, an
advantage which a Court
of appeal does not ordinarily enjoy. In
fact the High Court, exercising the powers under
s52
consequent
upon a
s 52(1)
committal, is exercising an original sentencing
jurisdiction. In this regard
s 274(1)
of the CPA provides that '[a]
court may, before passing sentence, receive such evidence as it
thinks fit in order to inform itself
as to the proper sentence to
be passed'. In
S
v Dlamini
(1992 (1) SA 18
(A)
at 30D-31D) the Appellate Division of the Supreme Court, in the
context of this provision, commented on the fact that there was
no
legal reason why a Judge should, in considering sentence, be
restricted to the material placed before the Court by the parties.
It also alluded critically to the fact that often so little and
such superficial attention is given to sentencing, in stark

contrast to the time, resources and talent devoted to procuring
the conviction of an accused.”
See
further:
S v B
2003 (1) SASV 52 (SCA)
at 61c-f (para9) where the same jurisdictional issue is expounded
upon as follows:
“
[9]
Uit hierdie bepalings
(section 52
93
) as it then read) blyk dit dat
die verhoor van 'n beskuldigde wat deur 'n streekhof vir vonnis na 'n
Hoë Hof verwys word nie afgehandel
is nie. Die oorkonde van die
verrigtinge in die streekhof maak deel uit van die oorkonde in die
Hoë Hof en indien die Hoë Hof van
mening is dat die verrigtinge nie
ooreenkomstig die reg is nie of dat twyfel bestaan of die verrigtinge
ooreenkomstig die reg is,
kan die Hof, onder andere, nadat getuienis
ingevolge art 52(3)(d) aangehoor is, die skuldigbevinding bekragtig,
wysig, of tersyde
stel; die saak na die streekhof terugverwys; of 'n
bevel maak wat die regspleging waarskynlik sal bevorder. Die
skuldigbevinding
in die streekhof is dus, in effek, 'n voorlopige
skuldigbevinding wat finaal word indien dit aanvaar word of bekragtig
word deur
die Hoë Hof. Met ander woorde die Strafregwysigingswet het
'n spesiale prosedure geskep ingevolge waarvan die verhoor van 'n
beskuldigde
in die streekhof begin en in die Hoë Hof afgehandel kan
word.”
As
I pointed out at the inception of this judgment only appellant (Mr
de Klerk) has appealed. I therefore see no basis on which
we can
intervene or interfere with the sentence imposed on accused 3 (Ms
Morwe) and accused 4 (Mr Mabe) as
Lacock
J
suggests in his
judgment. However, even if we were entitled to review the decisions
I can see no reason why we have to refer back
their case to the
Regional Court for sentence as we are competent and in a good
position to do so.
To
sum up then:
If
a jurisdictional factor is present for the committal of an accused
or accused persons, to whom the minimum sentences provisions
are
applicable, to the High Court it is preferable that Regional
Magistrates transfer all the accused to High Court for sentencing;
It
is not irregular or unprocedural or incompetent for a judge to
sentence co-accused who are not affected by the minimum sentences
provisions, in the situation described in para 15.2 (above) because
there is no prohibition in the legislation against doing
so. See
paras 13.1 and 13.2 (above);
There
is no basis to review the sentences of accused 3 and 4 who have not
appealed.
As
far as the appellant, Mr de Klerk’s, sentence is concerned I agree
with Lacock J for the reasons advanced by him, that the
Life
Imprisonment sentence be set aside and be replaced with a sentence
of: 20 (twenty) years imprisonment.
________________________
F
D KGOMO
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION