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[2018] ZASCA 61
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Director of Public Prosecutions: Gauteng Division, Pretoria v Hamisi (895/17) [2018] ZASCA 61; 2018 (2) SACR 230 (SCA) (21 May 2018)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 895/17
In
the matter between:
DIRECTOR OF PUBLIC
PROSECUTIONS:
GAUTENG DIVISION,
PRETORIA
APPELLANT
and
FUNEWER
COASTER
HAMISI
RESPONDENT
Neutral
citation:
DPP:
Gauteng v Hamisi
(895/17)
[2018] ZASCA 61
(21 May 2018)
Coram:
Lewis
and Dambuza JJA and Rogers AJA
Heard:
3
May 2018
Delivered:
21
May 2018
Summary:
Criminal
law - plea of guilty under
s 112(2)
of the
Criminal Procedure Act 51
of 1977
- where all the elements of an offence are admitted in a
written plea of guilty an accused may be convicted accordingly on the
basis of the plea - respondent admitted having had sexual intercourse
with the 12 year old complainant - sentence of life imprisonment
improperly set aside by the high court on appeal on the basis of lack
of evidence of complainant’s age - appeal by the National
Director of Prosecutions on a point of law upheld.
ORDER
On
appeal from:
Gauteng
Division, Pretoria (Molefe J and Swanepoel AJ).
1
The appeal succeeds.
2
The conviction is re-instated.
3
The sentence of 15 years’ imprisonment is set aside and
replaced with
the following:
‘
The
accused is sentenced to 20 years’ imprisonment’.
4
The sentence is antedated to 24 June 2010.
JUDGMENT
Dambuza
JA (Lewis JA and Rogers AJA concurring)
[1]
The respondent, Mr Hamisi, was convicted by the regional magistrate,
Bronkhorstspruit on a charge of rape of a 12 year old girl
in
contravention of s 3 of the Sexual Offences and Related Matters Act
32 of 2007 read with the provisions of s 51(1) and schedule
2
part 1
of the
Criminal Law Amendment Act No 105 of 1997
. He had pleaded
guilty to the charge in terms of s 112(2) of the Criminal Procedure
Act 51 of 1977 (CPA) and admitted to having
had sexual intercourse
with the complainant who was 12 years old at the time of the
incident. He was duly convicted based on his
plea and was sentenced
to life imprisonment. On appeal in terms of s 309 of the CPA the
Gauteng High Court, Pretoria, found
that, despite the admission in
the respondent’s written plea explanation, the state should
have led evidence to prove the
complainant’s age. That court
then set the sentence of life imprisonment aside and replaced it with
a sentence of 15 years’
imprisonment. The Director of Public
Prosecutions appeals, on a point of law, in terms of s 311 of the
CPA, against the reduction
of the sentence of life imprisonment.
[2]
In the relevant part of his written plea of guilty, the respondent,
who was legally represented, said:
‘
I
am the accused and I am guilty of the crime of contravening the
provisions of section 1, 56(1), 57, 58, 59, 60 and 61 of Act 32
of
2007 also read with section 256 and 261 of the Criminal Procedure Act
51 of 1977 (read with the provisions of section 51 and
schedule 2 of
the
Criminal Law Amendment Act 105 as
amended. In that on or about 31
October 2009 and at Tweefontein in the Regional Division of Gauteng I
did unlawfully and intentionally
commit an act of sexual penetration
with the complainant to wit [N] 12 years old by inserting [my] penis
into her vagina and penetrating
her without the consent of the said
complainant
.
At
the time I knew that what I was doing was wrong and punishable in
Court and I admit I do not have a defence in law for my action.’
[3]
The State accepted the respondent’s plea and also handed in a
J88 medico-legal report. Having convicted the respondent,
in its
judgement on sentence, the trial court referred to the contents of
the J88 report and a probation officer’s report.
In the J88
report the examining medical practitioner had recorded the
complainant’s date of birth as 23 May 1997 and that
she was 12
years on the day of the incident. The same information was contained
in the probation officer’s report which had
been intended to
motivate for appointment of an intermediary to assist the complainant
in the trial.
[4]
As stated, the respondent then appealed to the high court. The
relevant grounds of appeal as set out in the respondent’s
notice of appeal were mainly directed at the sentence. In setting
aside the sentence of life imprisonment the high court found
that the
state had failed to tender admissible evidence of the complainant’s
age. That court also remarked that the written
plea together with the
J88 medico-legal report and probation officer’s report which
formed part of the record did not constitute
the requisite proof of
the complainant’s age in the absence of oral evidence by the
authors thereof. These were the reasons
for the setting aside of the
conviction and reduction of the sentence imposed by the trial court.
[5]
In this appeal the point of law is raised as follows:
‘
When
an accused pleads guilty in terms of
s 112(2)
of the
Criminal
Procedure Act and
makes an admission in the statement regarding the
age of the complainant, in a matter where the age of the complainant
is a prerequisite
for the offence, [does such admission]
absolve the state of its duty to prove the age of the complainant?’
[6]
The respondent insists that despite the plea of guilty to the offence
of rape of the complainant, and the admission therein
that the
complainant was 12 years of age at the time of the incident, the
State still had a duty to prove the complainant’s
age.
[7]
Section 112
of the CPA regulates the procedure in terms of which
guilty pleas are made and considered by courts.
Section 112(1)
regulates the conviction and sentence of an accused on a verbal plea
of guilty.
Section 112(2)
regulates guilty pleas made in writing. The
section provides that:
‘
If
an accused or his legal adviser hands a written statement by the
accused into court, in which the accused sets out the facts
which he
admits and on which he has pleaded guilty, the court may, in lieu of
questioning the accused under subsection (1)(b),
convict the accused
on the strength of such statement and sentence him as provided in the
said subsection if the court is satisfied
that the accused is guilty
of the offence to which he has pleaded guilty: Provided that the
court may in its discretion put any
question to the accused in order
to clarify any matter raised in the statement’
[8]
It is clear therefore that a court considering a statement made in
terms of
s 112(2)
exercises its discretion to determine, whether
the statement admits all the elements of the offence in question. If
it is not satisfied
that that is so, it must question the accused as
set out in
s 112(1)(b)
to clarify a matter raised in the written
plea. If it determines that the statement is satisfactory and admits
all the elements
of the offence it shall convict the accused on the
plea of guilty. When the written plea detailing the facts on which
the plea
is premised is accepted by the prosecution, it constitutes
the factual matrix on the strength of which an accused will be
convicted
and the sentence imposed.
[1]
The written plea is aimed at ensuring that the court is provided with
an adequate factual basis to make a determination on whether
the
admissions made by an accused support the plea of guilty tendered.
[9]
Indeed, at the start of the trial the State had a duty to prove all
the elements of the crime with which the respondent had
been charged.
Broadly this entailed leading evidence to prove the commission of the
offence, the age of the complainant and the
identification of the
respondent as the perpetrator. Once the plea of guilty and the
statement in explanation thereof was tendered
and accepted by the
State, and the court was satisfied that the admissions supported the
conviction, it was entitled to convict
accordingly.
[10]
The contention by the respondent that evidence of the complainant’s
age should have been led in the circumstances finds
no support in
law. This element of the offence with which the respondent was
charged was admitted together with the other
elements of that
offence. In fact in
S
v Mbelo
,
[2]
on which the respondent’s counsel sought to rely, Majiedt J (as
he then was) rejected a similar argument and convicted the
appellant,
who had pleaded guilty to sexual intercourse with a 14 year old girl.
[11]
The respondent’s reliance on
R
v C
[3]
is equally misplaced. That case was decided under the predecessor of
the current
Criminal Procedure Act. In
terms of
s 286
of that Act,
even where a plea of guilty had been tendered by an accused, lower
courts could not convict in serious cases (ie offences
carrying a
sentence of imprisonment) unless there was evidence other than that
of the accused that the offence in question had
actually been
committed. Section 112 of the CPA dispensed with the need for
evidence other than that of the accused and replaced
it with the
questioning under s 112(1)(b) and/or the statement under s112(2).
[4]
For these reasons the high court erred and the conviction of rape of
the 12 year old complainant must be reinstated.
[12]
I now turn to the sentence. In terms of s 311
(a)
of the CPA this court, having decided the matter in favour of the
appellant, may re-instate the conviction and the sentence originally
imposed, either in its original form or in such modified form as it
considers desirable. This Court therefore must determine whether
it
is desirable to re-instate the original sentence.
[13]
In terms of s 51(1) read with part 1 of schedule 2 the prescribed
minimum sentence for the offence of which the respondent
stands
convicted is life imprisonment. Submissions made to the trial court
in respect of sentence related to the respondent’s
personal
circumstances and the impact of the rape on the complainant. The
respondent was a 23 year old first offender at
the time. He was
single, with a three year old child who lived with his (respondent’s)
mother in Zimbabwe. His mother is
blind. He was the sole breadwinner
in his family. Prior to his arrest in relation to this case he
was employed at Tweefontein
Chicken Farm, earning R1400.00 per month
of which R800.00 would be sent to his mother in Zimbabwe.
[14]
The trial court considered the seriousness and prevalence of the
offence committed by the respondent, the fact that the appellant
and
complainant were well known to each other, and the fact that the
complainant was raped in the sanctity of her home. The complainant
had sustained a laceration, bruises and fresh tears on her private
parts. In the J88 the examining doctor described the her ‘mental
health and emotional status’ as ‘sound but grossly
shaken’. It was against this background that the trial court
found no substantial and compelling circumstances.
[15]
It is trite that a wide discretion is allowed to a trial court in the
assessment of punishment.
[5]
In
the absence of material misdirection by the trial court, the Appeal
Court cannot approach the question of sentence as if the
Appeal Court
were the trial court and then simply substitute the sentence of the
trial court by that which it prefers. On the other
hand where the
court of appeal finds sufficient disparity between the sentence
imposed by the trial court and that which it would
have imposed, the
court of appeal is obliged to interfere.
[6]
[16]
The offence committed by the respondent is abhorrent. Much has been
said about the prevalence of sexual violence against women
and young
children in our communities. By any account, for a considerable time
the complainant will live with the impact of the
crime perpetrated on
her at such a vulnerable stage of her life. On the other hand, at 23
years, the respondent, who was a first
offender and pleaded guilty to
the offence, appears to be a good candidate for rehabilitation.
[17]
Ideally one would have wanted more information about the appellant’s
upbringing and personal circumstances. The magistrate
should have
called for a pre-sentencing report. However the proceedings in the
trial court were finalised nearly eight years ago
and it would not be
just at this late stage to have the matter remitted for further
enquiry. The circumstances I have mentioned
are just enough to show
that a life sentence would be disproportionate and thus that
substantial and compelling circumstances exist
to depart from the
prescribed minimum sentence. I consider that a sentence of 20 years
imprisonment to be a sufficiently long punishment
for the horrendous
crime committed by him. But it will afford him a second chance in
life if he changes his behaviour.
[18]
In the result the appeal succeeds. The order of the high court is set
aside and replaced with the following:
1
The appeal succeeds.
2
The conviction is re-instated.
3
The sentence of 15 years’ imprisonment is set aside and
replaced with
the following:
‘
The
accused is sentenced to 20 years’ imprisonment’.
4
The sentence is antedated to 24 June 2010.
___________________
N Dambuza
Judge of Appeal
APPEARANCES:
For
the Appellant:
G J C Maritz
Instructed
by:
Director of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
For
the Respondent:
J M Mojuto
Instructed
by:
Pretoria Justice Centre, Pretoria
Bloemfontein
Justice Centre, Bloemfontein
[1]
S v Kekana
[2014] ZASCA 158
;
S
v Thole
2012 (2) SACR 306
(FB) at 8.0.
[2]
S v Mbelo
2003
(1) SACR 84 (NC).
[3]
R v C
1955(1)
SA (C).
[4]
S v Sikhindi
1978 (1) 1072 (N)
at H.
[5]
See s 283(1) of the CPA.
[6]
S v Malgas
2001
(1) SACR 469
SCA at 478d.