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[1993] ZASCA 51
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S v Van Der Fort (559/91) [1993] ZASCA 51 (31 March 1993)
Case No 559/91
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
WASFIE VAN DER FORT
Appellant
and
THE
STATE
Respondent
CORAM:
HOEXTER, MILNE, JJA et KRIEGLER, AJA
HEARD:
11 March 1993
DELIVERED:
31 March 1993
J U D G M E N T
HOEXTER, JA
2
HOEXTER, JA
In the regional court at Wynberg the
appellant
was convicted on one count of
rape and one count of indecent assault. For purposes of sentence the trial court
took the convictions
together. The appellant was sentenced to four years
imprisonment, the operation of two years of the sentence being conditionally
suspended for five years. The appellant noted an appeal against his sentence
alone. His appeal was dismissed by the Cape of Good
Hope Provincial Division.
Thereupon the appellant applied to the court a quo for leave to appeal against
its judgment. Leave to appeal
was refused, but the appellant was granted bail
pending a petition by him to this court. The petition addressed to the Chief
Justice
sought leave to appeal against sentence only. This court nevertheless
granted the appellant leave to appeal against both his conviction
and
sentence.
3
The sexual acts in respect whereof the appellant was charged were
committed on 31 March 1990. The appellant, an apprentice welder,
was then
eighteen years old. The complainant was a schoolgirl aged fifteen. She was a
virgin.
The appellant was arrested on 1 April 1990.
On
the following day he appeared at a summary trial in
the
regional court when the charges were put to him.
The
appellant, who was unrepresented, pleaded guilty to
the
charge of indecent assault but not guilty to the charge
of
rape. The magistrate remarked upon the fact that
the
appellant had been arrested on the preceding day, and
he
inquired whether the appellant was ready to proceed
with
the case. The appellant replied in the affirmative.
Thereupon the magistrate questioned the appellant with reference to the
alleged facts of the case in order to ascertain whether he
admitted the
allegations in the charge
4
to which he had pleaded guilty. From the appellant's answers it appeared
that, after having had sex with the complainant, he had further,
but with her
consent, put his penis into her mouth. The magistrate was not satisfied that the
appellant admitted the allegations
in the charge of indecent assault and in
terms of sec 113 of Act 51 of 1977 ("the Act") he recorded a plea of not guilty
on that
charge. Pursuant to sec 115 of the Act the magistrate than asked the
appellant whether he wished to indicate the basis of his defence
to the charge
of rape. The appellant stated his willingness to do so and proceeded to explain
that the sexual intercourse had taken
place with the complainant's
consent.
The charge sheet stated the age of the complainant as fourteen years. The
magistrate therefore explained to the appellant what the
competent verdicts were
in the case of sexual offences involving a complainant
5
under the age of sixteen years. Thereafter the magistrate determined the
conditions of bail and the trial was postponed to 9 May 1990.
When the trial was resumed on 9 May 1990 the appellant was represented by
Mr Sonday who is an attorney. The attorney proceeded to
inform the court that in
respect of both counts the appellant wished to admit that there had been no
consent on the part of the complainant;
and that in respect of each count the
appellant wished to alter his plea to one of guilty. This was confirmed by the
appellant. The
State elected to lead no evidence. It closed its case and asked
for convictions as charged. No evidence was led on behalf of the
appellant, and
his attorney made no address to the court on the merits. The trial court then
delivered a judgment on the merits of
the case. Having accurately summarised the
antecedent proceedings before him the regional magistrate concluded by
6
saying that on both counts he was satisfied that the appellant admitted
all the allegations in the charges against him; and accordingly
he convicted him
as charged on both counts.
The State proved no previous convictions against the appellant. Bail was
extended and by consent the trial was then postponed to 16
September 1990 in
order that the report of a probation officer might be obtained. When on the
latter date the trial was resumed the
State called Mr T J Damons ("Damons"), a
probation officer in the Department of Health Services and Welfare. Damons read
out and
handed in a report dated 25 September 1990 which he had prepared on the
appellant and his circumstances. Damons was questioned by
the magistrate and
cross-examined by the attorney. The attorney then called the appellant to
testify in mitigation of sentence.
The appellant gave his date of birth as 23 July
7
1971. He had therefore already turned nineteen when
he
testified. The appellant was an unsatisfactory
witness.
A reading of the record shows that he
shilly-shallied
throughout his evidence; and that when he was questioned
by the prosecutor or the magistrate he showed a marked
disinclination to answer simple questions. Dealing with
the events in question the appellant said that he and the
complainant had indulged in petting. Then, in response to
a question by the attorney, came the following twist in the
tale:
"Het sy [the complainant] daarteen gestry?---Die
eerste keer maar agter daai toe het sy nie weer
nie.
Het sy nie weer nie. U se sy het aanvanklik
geweier, maar het later ingestem?---Ja."
During his cross-examination the appellant said
that he had regretted what had happened. This statement he
amplified by saying that he felt sorry for the complainant,
and:-
8
"Ek voel amper soos ek nou haar lewe opgemors het, dat die gebeur het
nou."
Thereupon took place the following
exchange between the
magistrate and the appellant:-
"H
OF:
Nou moet ons net een puntjie duidelikheid
op kry. Toe jy na die hof kom, se jy vir my dit
was met toestemming gewees, die seks. Later toe
jy regsverteenwoordig word, toe word vir my
gese
dit was sonder toestemming gewees. En nou uit
die
proefbeampteverslag wil nou weer blyk of
toestemming hiervoor gegee
word, want julle het
mekaar geliefkoos en toe gaan julle na die
kamer
toe en julle het seks. Wat is die werklikheid?
---Sy het my toestemming gegee.
Wat bedoel u toestemming? --- (Geen antwoord)
Want die een omblik het u hierdie weergawe gegee,
dan gee u weer daardie weergawe en aan die proefbeampte gee u weer 'n
weergawe - nou lyk dit my kan u nie u gedagtes opmaak wat is
wat nie? --- (Geen
antwoord)
Hmmm? Dit is mos nie 'n moeilike vraag nie?---
(Geen antwoord)."
In the hope of obtaining greater clarity on the
issue the attorney then re-examined the appellant.
Therefrom emerged, inter alia, the following:-
9
"
MNR SONDA
Y: Maar inderdaad, toe gemeenskap plaasgevind het, het sy
geskree en daarteen
gestry? --- Wat ek seks met haar het, toe skree
sy die eerste keer, wat ek nou ....
Toe skree sy? --- Ja.
Skree sy dat dit nie moet plaasvind nie? --- Nie
moet plaasvind nie - dat dit seer gewees
het."
The appellant was then further
questioned by the magistrate
whose mounting perplexity it is not
difficult to
understand. I quote two excerpts from the appellant's
evidence at this stage of the proceedings:-
"So was daar toestemming of was daar nie
toestemming nie?
Daar was toestemming.
Nou waarvoor is jy jammer? --- (Geen antwoord)"
and again:
"Maar hoekom het jy vir jou prokureur en vir my
gese daar was nie toestemming nie? --- (Geen
antwoord)
Hmmm? Laat ons hoor. --- Ek weet nou nie wat om
te se nie, meneer."
When the appellant left the witness stand
the
10
magistrate inquired of the attorney whether the
defence
wished to apply for a variation of the appellant's plea
of
guilty. At the suggestion of the magistrate an
adjournment was then taken to enable the defence to
consider its position. Upon the resumption of the
proceedings the attorney made the following statement to
the court:-
"
MNR SONDAY:
Edelagbare, voortsetting van die saak. Na konsultasie
met die beskuldigde, Edelagbare - deeglike konsultasie, is daar besluit dat
die
pleit gaan staan, Edelagbare. Waar hy eintlik praat van toestemming, bedoel hy
dan toestemming tot liefkosing en dit is nie toestemming
tot verkragting nie,
Edelagbare. Edelagbare, ek vra net om die beskuldigde weer te herroep vir een of
twee vragies, Edelagbare, wat
betref die misdaad. Edelagbare, beskuldigde is
tweetalig, maar hy verstaan Engels beter."
The further evidence by the appellant was brief
and did not touch again upon the issue of consent. It
dealt with matters such as the duration of the sexual
intercourse, the extent of the complainant's screams; and
11
the regret experienced by the appellant at the fact that the incident had
ended up in court.
Further in mitigation of sentence the attorney then called in turn as
witnesses the appellant's mother, sister and father. The State
itself called the
complainant's mother. By consent two documents were handed in by the prosecutor
as exhibits "C" and "D" respectively.
Exh "C" is a report on an examination in a
case of alleged rape. It was completed and signed on 31 March 1990 by a district
surgeon
and it certified that at 5.30 pm he had examined the complainant. The
record indicates that exh "C" was received by the trial court
on the basis that
the defence admitted "die korrektheid van die vorm." Exh "D" is a note signed on
24 September 1990 by a psychiatric
sister at Groote Schuur Hospital. It
certifies that the complainant had been treated in the Psychiatry Out-Patients
section of the
hospital.
12
Both in the court a quo and before us
the
appellant was represented by Mr Mahomed
while Mr Downer
appeared for the State. In the court a quo counsel
for
the appellant had prepared for the assistance of that court
typewritten heads of argument running to 22 pages. This
document concludes with a submission that the court quo:-
".... for reasons set out hereinbefore .... will uphold the appeal and
sentence the appellant afresh by imposing a wholly suspended
sentence or
alternatively, periodical imprisonment and cuts or further in the alternative
community service which would bring home
to the appellant the error of his
ways."
Before the hearing of the appeal this court requested counsel on both
sides to furnish supplementary heads of argument in regard to
certain issues in
the case. We are indebted to counsel for the industry shown by them in this
connection.
Mr Downer in his argument on behalf of the State took the preliminary
point that the leave purportedly
13
granted by this court to the appellant to appeal against his conviction
had not been validly granted, and that we therefore lacked
jurisdiction to
entertain an appeal against the conviction. The objection is well-founded.
Having regard to the provisions of sec
21 (4) (b) of the Supreme Court Act, 59
of 1959, an appeal lay in the instant case against the judgment of the court a
quo only with
leave of the court a quo or, where such leave had been refused,
with leave of this court. In terms of sec 21(2) of Act 59 of 1959
the leave of
the appellate division referred to in sec 20(4) may be granted by this court on
application made to it as therein provided.
A petition to this court could only
have been lodged against the refusal of leave by the court a quo.. The appellant
sought from
the court a quo only leave to appeal against his sentence. Upon the
refusal of such leave by the court a quo the appellant could
not properly have
applied to this court for
14
leave to appeal against his conviction. Indeed, the appellant did not
attempt to do so. The petition which he addressed to the Chief
Justice sought
only leave to appeal against his sentence. Cf S v Cassidy 1978(1) SA
687(A).
It follows that no appeal against the appellant's conviction is before
us. Having regard to the evidence on record, however, I mention
in passing that
even if an appeal against the conviction had been properly noted and prosecuted
it would have had no prospects of
success. It is true that when he testified in
mitigation the appellant from time to time either alleged or insinuated that the
complainant
had willingly submitted to his actions. The fact of the matter is
that the appellant was not a credible witness. Such was his mendacity
that, save
where his evidence is supported by acceptable external evidence, no reliance
whatever can be placed on what he said. What
acceptable external evidence there
is militates against any
15
notion that the complainant consented. At one stage of
the
appellant's evidence his attorney elicited from him
that
the complainant screamed from pain. That part of the
appellant's account, at least, is rendered probable by the
objective medical evidence which was admitted by consent.
The district surgeon who examined the complainant after the
appellant had had intercourse with her, found that the
complainant's genitalia were very tender, swollen and
bruised; and that her perineum was torn and bleeding. The
district surgeon recorded as his opinion:-
"Physical signs consistent with alleged forced sexual
intercourse."
What points almost irresistibly to the absence of consent,
however, is the manner in which the defence was conducted
after the appellant secured legal representation. The
appellant's first appearance in court was on 2 April 1990.
Thereafter there was an interval of five weeks before the
appellant again appeared in court. It does not appear from
16
the record at what stage the appellant engaged the services of his
attorney, but having regard to the gravity of the crime of rape,
it is
reasonable to assume that the attorney consulted with the appellant before the
proceedings resumed on 9 May 1990. At the outset
the attorney informed the court
that there had been no consent on the part of the complainant; and that the
appellant wished to plead
guilty on both counts. This was confirmed by the
appellant. When at an advanced stage in the proceedings in the trial court there
was further wavering and vacillation on the part of the appellant the magistrate
adjourned the court to enable the defence to reconsider
its position in regard
to the pleas of guilty earlier recorded by the magistrate; and, if necessary, to
make an appropriate application
for a variation of the pleas. When the trial was
resumed the attorney informed the magistrate that after thorough consultation
with
his client the defence had decided that
17
the pleas of guilty should stand.
I turn to the propriety or otherwise of the sentence imposed by the trial
court. At the trial the personal circumstances of the appellant
were carefully
explored. The appellant has a stable family background. At school he passed the
eighth standard. He has never displayed
aggressive or other anti-social
tendencies. He is in fixed employment and he is a youthful first offender. All
these factors were
present to the mind of the magistrate and were weighed by him
in his consideration of an appropriate sentence.
A point much argued by Mr Mohamed was based on the questioning of the
probation officer by the magistrate. Damons concluded his report
by expressing
the opinion that the appellant was an offender susceptible of rehabilitation
within society, and that in his case a
suspended sentence of imprisonment would
have the necessary
18
deterrent effect. Accordingly Damons recommended the
imposition of a heavy but suspended sentence of
imprisonment. While Damons was testifying the magistrate
pointed out to him that while his report dealt with the
interests of the appellant, other factors were also proper
for the consideration of a court weighing an appropriate
sentence. In this connection it is necessary to quote the
following excerpt from the record:-
"[HOF] Daar is drie dinge wat die Hof moet in
aanmerking neem
- dit is die beskuldigde - die
het u nou behoorlik op ingegaan; die
tweede is
die misdaad en derdens, die belange van
die
gemeenskap, waar die belange van die
klaagster
eintlik om draai. Ja.
Sy verlang gevangenisstraf - dit is wat sy voel haar belange gaan
beskerm. Die misdaad is 'n misdaad waarvoor die doodstraf opgele
kan word. As u
daardie twee aspekte in oorweging neem, wat
is u aanbeveling dan? Dan moet my aanbeveling
eintlik wees dat die man gevangenisstraf opgele word, u Edele."
Mr Mahomed submitted that in so questioning
Damons, and in eliciting from him a recommendation
19
which differed from his original recommendation, the magistrate had acted
unfairly and irregularly. The argument appears to me to
be unsound. The
magistrate had, I think, a perfect right to examine and test the probation
officer's recommendation. Indeed, it was
his duty to do so. It may be that in
questioning Damons (who no doubt viewed the problem primarily from the angle of
his own discipline)
the magistrate was a trifle brusque. But his questions were
relevant and their logical force appears to have become apparent to
Damons.
A further argument advanced on behalf of the appellant was that even in
the absence of any misdirection on the part of the magistrate
the sentence
imposed was so startlingly inappropriate and severe that it should be set aside.
I disagree. Having regard to the full
circumstances of the case, and in
particular the nature of the rape involved, the sentence does not appear to me
to be
20
in any way excessive or disproportionate. The complainant was a young
schoolgirl and a virgin. She sustained painful physical injuries
to her private
parts as a result of the sexual assault upon her, and in addition she suffered
psychological harm. The latter necessitated
medication prescribed by a
psychiatrist. Mr Mahomed pointed out that the complainant's mother had expressed
the hope that the appellant
might be spared a prison sentence. Such compassion
reflects well upon her, but neither her sentiments on the subject nor those of
the complainant (who made clear to Damons that she regarded imprisonment as the
appropriate punishment for the appellant's offences)
seem to me to be of any
assistance in considering whether the magistrate exercised his discretion
properly in regard to sentence.
He had to take into account what he conceived to
be the broad interests of society rather than the private views of the
complainant
herself or those of her
21
immediate family.
In their supplementary heads of argument
counsel also dealt with the question whether a sentence of correctional
supervision in terms
of sec 276(1) of the Act might be substituted by this court
for the sentence imposed by the magistrate. For the reasons which follow
that
question must be answered in the negative. The trial court passed sentence on
the appellant on 26 September 1990, and that sentence
was confirmed by the court
a quo on 10 June 1991. In the Wynberg magisterial district paragraphs (h) and
(i) of sec 276(1) of the
Act came into operation only on 20 March 1992. The
option of correctional supervision as a possible sentence was therefore open at
the relevant time neither to the trial court nor the court a quo. When
legislation providing for new penalties which moderate and
mitigate punishment
is passed after the date of sentence by the trial court, an
22
appeal court which sets aside as inappropriate the trial court's sentence
is entitled to take into account such new and less harsh
penalties; and to
impose sentence afresh in the light of them. However, where the sentence imposed
by the trial court is an appropriate
sentence (having regard to the punishment
options then available to the court) the appeal court is not at large to impose
afresh
a sentence in terms of the supervening amended legislation. See
Proku-reur-Generaal Noord-Kaap v Hart 1990(1) SA 49(A), For the reasons
already
mentioned in this judgment no grounds have ' been shown for disturbing the
sentence imposed by the trial court.
In his supplementary heads counsel for the appellant conceived a further
argument which was developed at very considerable length.
Pointing to the fact
that before the appellant was called upon to plead to the charges on 2 April
1990 the regional magistrate had
not
23
informed him of his right to legal representation, Mr Mahomed urged upon
us that in consequence thereof the whole ensuing trial was
palpably and grossly
unfair. Despite the rather terse notice of appeal upon which the appeal to the
court a quo was based, so it
was contended, this failure of justice in the trial
proceedings should have been apparent to the court a quo. By narrowly confining
its attention to the notice of appeal the court a quo overlooked this fatal flaw
and failed to exercise its judicial powers of review.
Had it properly exercised
such powers, so the argument proceeded, the court a quo would summarily have
quashed the proceedings in
the trial court as irregular and not in accordance
with justice. Accordingly, so it was said, the court a quo had fallen into_
error
- an error which this court should correct by quashing the appellant's
conviction and sentence.
This argument cannot be sustained. I
leave
24
aside (a) the question whether it is open to the appellant to raise this
argument at all when the issue of sentence is the only one
properly before us
and (b) the problem that this court lacks inherent powers of review. The
argument in any case bears no relation
to the true facts of the case The
appellant was not an unsophisticated illiterate. The upshot of the plea
proceedings on 2 April
1990, when he was admittedly not represented and not
apprised of his rights in that regard, was that pleas of not guilty were entered
upon the record; and the trial was adjourned for some five weeks. In the result
the appellant suffered no prejudice whatsoever at
the plea stage and thereafter.
He had ample time in which to seek legal advice and to obtain legal
representation. At the outset
of the trial proceedings he was in fact
represented by an attorney; and he remained so represented until the end of the
trial. The
record reflects not the slightest indication that the
proceedings
25 were not in accordance with justice.
The appeal is
dismissed.
G
G HOEXTER, JA Milne, JA ) Concur
Kriegler, AJA )