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[2018] ZASCA 107
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Shiburi v S (205/2017) [2018] ZASCA 107; 2018 (2) SACR 485 (SCA) (29 August 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 205/2017
In
the matter between:
KENNEDY NTSAKO
SHIBURI
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Shiburi
v The State
(205/2017)
[2018] ZASCA 107
(29 August 2018)
Coram:
Shongwe
ADP, Saldulker JA and Pillay, Makgoka and Hughes AJJA
Heard:
29
May 2018
Delivered:
29
August 2018
Summary
:
Criminal Procedure – section 112(1)(
b
)
of the
Criminal Procedure Act 51 of 1977
– Nature, ambit
and purpose of the section explained – proper approach to
questioning in terms thereof – section
must be considered as
part of the constitutional right to a fair trial – when a plea
of guilty should be altered to one of
not guilty. Rape –
sufficiency of evidence – proper approach to the evaluation of
evidence restated.
ORDER
On
appeal from: Limpopo
Division,
Polokwane (Mokgohloa DJP and Sikhwari AJ) sitting as court of
appeal):
1 The appeal is
upheld.
2 In respect of
counts 1 and 2, the order of the high court is set aside and
substituted with the following:
‘
The
appellant’s appeal is upheld and the convictions and sentences
are set aside subject to the following:
‘
The
case is remitted to the regional magistrate, Mrs C Honwana, who is
directed to record pleas of not guilty to counts 1 and 2
and to
require the prosecutor to proceed with the prosecution.’
3 In respect of
count 3, the order of the high court is set aside and substituted
with the following:
‘
The
appeal is upheld and the appellant’s conviction and sentence
are set aside and substituted with the following:
“
The
accused is acquitted on count 3.”
JUDGMENT
Makgoka
AJA (Shongwe ADP, Saldulker JA and Hughes AJA concurring)
[1]
This appeal
concerns, in the main, the proper application of s 112 of the
Criminal Procedure Act 51 of 1977 (the CPA). The ancillary
issue is
whether the evidence was sufficient to sustain a charge of rape.
These arise against the following factual background.
On 19 August
2005, mid-day, a young woman aged 18 and a 15 year old girl were
accosted by two men who subsequently raped them in
the nearby bush.
Later those men swopped places with their victims, and raped the one
who had earlier been raped by the other.
On 23 February 2006, a young
woman, 18 years of age, was allegedly raped.
In
the regional court
[2]
The appellant
was subsequently arrested and charged with three counts of rape,
following the above complaints. Counts 1 and 2 were
in respect of the
rapes of the two girls on 19 August 2005, while count 3 concerned the
rape which allegedly occurred on 23 February
2006. All three counts
were stated to be ‘read with the provisions of section 51 and
schedule 2 of the
Criminal Law Amendment Act 105 of 1997
, as
amended.’
[3]
The appellant,
who was not legally represented, appeared in the regional court,
Ritavi. He pleaded guilty to all three counts. The
regional
magistrate proceeded to question him in terms of
s 112(1)(
b
)
of the CPA to satisfy herself that the appellant admitted all the
elements of the offences. In respect of counts 1 and 2 the appellant
explained that on 19 August 2005, the day of the incident, he was in
the company of one Walter Ngobeni when they came across the
complainants. Ngobeni produced a knife and told him that he was going
to grab one of the complainants, and told him to also grab
the other.
He obliged, and both grabbed the two complainants and dragged them to
a nearby bush. Ngobeni instructed him to rape
the one complainant,
which he did, whilst he, Ngobeni, raped the other. Thereafter they
swopped – the appellant raped the
complainant who had just been
raped by Ngobeni, while the latter raped the one just raped by the
appellant.
[4]
The appellant
explained to the court that he was afraid that Ngobeni, who was older
than him and wielding a knife, would harm him
if he did not commit
the rapes as directed by him. Thus, the gravamen of the appellant’s
explanation was that he was compelled
by fear to rape the
complainants. At the end of the questioning in terms of
s 112(1)(
b
)
of the CPA, the regional magistrate enquired from the prosecutor
whether the State accepted the appellant’s plea of guilty
on
each of counts 1 and 2, to which the prosecutor answered in the
affirmative. The court convicted the appellant of both counts.
In
respect of count 3, the court was not satisfied that the appellant
admitted all the elements of the offence, and in terms of
s 113
of
the CPA, altered the appellant’s plea of guilty to one of not
guilty. Evidence was led on this count, after which the
appellant was
also convicted on count 3. He was sentenced to 15 years’
imprisonment for counts 1 and 3 each, and imprisonment
for life on
count 2.
In
the High Court
[5]
After he was
sentenced, the appellant, who was then legally represented, appealed
against the convictions on all counts and the
resultant sentences.
The appeal came before a full bench of the Limpopo Division of the
High Court, Polokwane (the high court).
The appellant attacked the
convictions on counts 1 and 2 on the basis that the questioning by
the regional magistrate revealed
a defence of compulsion. In respect
of count 3, the appellant contended that the evidence was
insufficient to sustain a conviction.
The high court rejected all
these contentions and dismissed the appeal against the convictions.
[6]
With regard to
the sentences, the high court found that the age of the complainant
in count 2 (who had been stated in the charge
sheet to have been 15
years old) had not been proven in the regional court. The importance
of the complainant’s age is that
if she was under the age of 16
years, life imprisonment is the prescribed minimum sentence in terms
of
s 51(1)
of the
Criminal Law Amendment Act 105 of
1997 (the CLAA).
This is so, unless substantial and compelling circumstances were
established. It should be borne in mind that
the regional court had
imposed life imprisonment in respect of count 2. This was ostensibly
on the basis that the complainant was
under the age of 16.
[7]
Despite finding
that the age of the complainant in count 2 had not been proven, the
high court concluded that the sentence of life
imprisonment should
stand. It based its reasoning on
s 51(1)
of the CLAA, which provides
that where a victim is raped more than once by two people, the
prescribed minimum sentence is life
imprisonment. As the complainants
were raped by the appellant and Ngobeni in the circumstances
envisaged in the section, so concluded
the high court, life
imprisonment was the appropriate sentence. It therefore dismissed the
appellant’s appeal against sentence.
In
this court
[8]
The appellant’s
appeal is before us with the special leave of this court. Three key
submissions were advanced on behalf of
the appellant in this court.
First, that the court failed to encourage the appellant to exercise
his right to legal representation,
in the light of the seriousness of
the charges he faced. Second, that the explanation by the appellant
during the questioning in
terms of
s 112(1)(
b
)
raised a defence of compulsion, and the court should therefore have
altered the plea of guilty to one of not guilty in terms of
s 113
of
the CPA. Third, that the appellant’s right to a fair trial was
infringed. This, so was the submission, was because the
appellant was
sentenced in terms of
s 51(1)
of the CLAA (life imprisonment) whereas
this had not been specifically mentioned in the charge sheet. It was
submitted that under
the circumstances, the regional court lacked the
necessary jurisdiction to sentence the appellant to life
imprisonment. I deal
with these submissions in turn.
Legal
representation
[9]
At his first
appearance in the regional court on 3 March 2010, the appellant’s
right to legal representation was explained
by the regional
magistrate. He elected to apply for legal aid representation. Indeed,
on his second appearance, he was represented
by an attorney from
Legal Aid SA. The matter was remanded for several occasions while the
appellant continued to be represented.
The trial date was set for 15
October 2010. On that occasion the appellant’s attorney was
present at court, but due to ill-health,
could not proceed with the
trial. The appellant indicated to the court that he wished to proceed
with the trial, and would conduct
his own defence. The attorney
sought, and was granted leave to withdraw as the appellant’s
attorney. Before he pleaded to
the charges, the court enquired from
the appellant whether he persisted with conducting his own defence,
which he confirmed.
[10]
In the heads of
argument on behalf of the appellant the contention was that under
these circumstances, the court was enjoined to
explain to the
appellant the consequences of not having legal representation ‘by
making sure he clearly understood the danger
of conducting own
defence’. It was further submitted that the court should have
encouraged the appellant to seek legal representation,
and enquired
from him the reason he did not. Failure to encourage the appellant to
seek legal representation resulted in the appellant
not receiving a
fair trial, and has thus suffered prejudice resulting in a
miscarriage of justice, so argued on behalf of the appellant.
Reliance was placed in this regard on
S
v Sikhipha
2006 (2)
SACR 439
(SCA) (
Sikhipha
).
[11]
In considering
this argument, the peculiar facts of the present case must be borne
in mind. They differ from those in
Sikhipha
,
where the accused never enjoyed legal representation at all. As
stated earlier, the appellant initially exercised his right to
legal
representation, after the court had explained to him of the right. It
is therefore untenable to suggest that he was not aware
of his right
in this regard. The passage in
Sikhipha
upon which reliance was placed, is in para 10, where the following
remarks were made:
‘
It should be said, however, that where an
accused is faced with a charge of rape, and especially where he faces
a sentence of life
imprisonment, he should not only be advised of his
right to a legal representative but should be encouraged to employ
one and seek
legal aid where necessary. It is not desirable for the
trial court in such cases merely to apprise an accused of his rights
and
to record this in the notes: the court should, at the outset of
the trial, ensure that the accused is fully informed of his rights
and that he understands them, and should encourage the accused to
appoint a legal representative, explaining that legal aid is
available to an indigent accused.’
[12]
This paragraph
must be read in its context. Importantly,
Sikhipha
concerned an unrepresented accused who never had legal representation
at any stage of the proceedings in the trial court. He had
elected to
conduct his own defence from the outset, unlike the appellant who had
initially been legally represented. The complaint
in
Sikhipha
was that the right to legal representation was not explained to the
appellant properly. In para 9, Lewis JA had rejected that complaint
on the basis that the record revealed that the rights to legal
representation and legal aid had been explained to him, and he
elected to conduct his own defence.
[13]
It must be
emphasized that the application of the rule regarding legal
representation is context sensitive. In any given situation,
the
enquiry is always whether an accused’s fair trial right has
been infringed. See
S
v May
2005 (2) SACR
331
(SCA) para 7.
[14]
Thus, from a
comparative perspective, the appellant in
Sikhipha
was in a far more unfavourable position compared to the appellant in
the present case. The latter who had undoubtedly been apprised
of his
right, and had in fact exercised it. Short of compelling the
appellant to seek further legal representation, it is difficult
to
see what else the regional court could have done. Therefore there is
no merit in the argument on legal representation, and reliance
on
Sikhipha
is misplaced.
Questioning
in terms of
s 112(1)(b)
[15]
Section
112(1)(
a
)
of the CPA provides for the conviction of an accused on his or her
plea of guilty if the prosecutor accepts that plea. On the
other
hand,
s 112(1)(
b
)
provides a mechanism for a court to satisfy itself that a plea of
guilty is informed and the accused admits all the elements of
the
offence to which a plea of guilty has been entered. The questioning,
which is restricted to the facts, is mandatory if the
court is of the
opinion that a custodial sentence is merited, or if the prosecutor
requests the court to so question the accused.
[16]
As stated
already, it was contended that during the appellant’s
questioning in terms of the above section, a defence of compulsion
became apparent from the appellant’s answers. It should be
recalled that the appellant explained that Ngobeni told him to
grab
and rape the complainant in count 1, and later did the same in
respect of the complainant in count 2. To consider whether
the
provisions of
s 112(1)(
b
)
were properly applied, it is necessary to quote from the record on
how the questioning was conducted. After the appellant had
admitted
to having had sexual intercourse with the complainants without their
consent, the following exchange followed:
‘
COURT:
Were you aware that it was an offence to have sexual intercourse with
a person
without his or her consent?
ACCUSED:
Yes I was aware but I was under pressure your worship because of the
person with whom I was walking.
COURT:
Did the person who was walking with you also force you to have sexual
intercourse
with this complainant? Or you only saw him having sexual
intercourse with the other one then you joined?
ACCUSED:
He told me to grab the other one and have sex with her.
COURT:
So you grabbed?
ACCUSED:
Yes.
COURT:
Did he push you, grab you or just went there on your own?
ACCUSED:
I just grabbed her I was next to her your worship.
COURT:
So you were not forced? He just told you to grab her you were not
forced
to grab her?
ACCUSED:
He just told me to have sex with that other one.
COURT:
So he did not force you?
ACCUSED:
He just told me your worship.
COURT:
Was the companion standing next to you when you were having sexual
intercourse
with the two complainants to make sure that you were
having sexual intercourse with them?
ACCUSED:
I was at a distance like here I am standing and he was at the
distance like the corner of this dock.
COURT:
The question is was he standing right next to you to make sure that
you were
complying with his instructions or not?
ACCUSED:
No but he was looking at me to see if I was complying with what he
told me.’
[17]
From the above
exchange between the court and the appellant, the explanation was
clear: he committed the rapes out of fear of Ngobeni,
who, as stated
earlier, was older than the appellant and was wielding a knife. He
thus feared that if he did not comply with Ngobeni’s
instruction, the latter could harm him. Given this explanation, it
was submitted on his behalf that the plea of guilty should have
been
altered to one of not guilty in terms of
s 113(1)
of the CPA. The
latter section provides, among others, for the correction of a plea
of guilty to one of not guilty under certain
circumstances. It reads:
‘
If the court at any stage of the
proceedings under
section
112
(1) (a) or (b) or
112
(2) and
before sentence is passed is in doubt whether the accused is in law
guilty of the offence to which he or she has pleaded
guilty or if it
is alleged or appears to the court that the accused does not admit an
allegation in the charge or that the accused
has incorrectly admitted
any such allegation or that the accused has a valid defence to the
charge or if the court is of the opinion
for any other reason that
the accused’s plea of guilty should not stand, the court shall
record a plea of not guilty and
require the prosecutor to proceed
with the prosecution: Provided that any allegation, other than an
allegation referred to above,
admitted by the accused up to the stage
at which the court records a plea of not guilty, shall stand as proof
in any court of such
allegation.’
[18]
Before I
consider whether the provisions of
s 112(1)(
b
)
were properly applied, the following broad observations about
the section are apt. The procedure set out in
s 112
is designed to
avoid the necessity for calling evidence in cases where it is clear
that the accused both understands all the elements
of the charge
against him or her and admits them all. As observed by this court in
S v Naidoo
1989 (2) SA 114
(A) at 121E-G, the section was designed to protect an
accused from the consequences of an unjustified plea of guilty. In
the constitutional
era, the procedure in
s 112
must be considered
within the context of a right to a fair trial enshrined in s 35(3) of
the Constitution. The constitutional right
to a fair trial should
guide the court in its determination of the ambit of the questions
which should be put. See
Commentary
on the
Criminal Procedure Act
,
Service 54, 17-15.
[19]
When questioning
the accused in terms of
s 112(1)(
b
)
the court’s duty is to determine whether an accused’s
factual statements and answers in his or her plea of guilty
adequately support the conviction on the charge. It is not the
courts’ function to evaluate the plausibility of the answers,
or to determine their truthfulness at this stage of the proceedings.
Instead, for the purposes of the section, the accused’s
explanation must be accepted as true. On that premise, the court
should consider whether the explanation discloses a possible defence
in law to the charge he or she pleaded guilty to. As is plain from
the text of the section, the presence of doubt is a jurisdictional
factor to trigger the application of the procedure laid down in
s
113.
Thus, once a basis for doubt exists, objectively considered, the
court has no residual discretion but to apply the procedure set
out
in
s 113.
[20]
I return to the
facts of the present case. It is clear from the quoted excerpt of
the record that the regional magistrate
was at pains to extract
a concession from the appellant that he was under no compulsion from
Ngobeni to rape the complainants.
That is beyond the ambit of
s
112(1)(
b
).
What is more, the very fact that the questioning reached that far, in
itself suggests that the regional magistrate should have
been left in
doubt as to whether the appellant admitted the element of intent. It
could well be that the appellant’s explanation
as to the
pressure he supposedly was under, was of a dubious nature. But that
is irrelevant for the purpose of
s 112(1)(
b
).
The truthfulness of his explanation played no role at that stage.
That explanation could only be tested by evidence, and not
by
questioning in terms of
s 112(1)(
b
),
as the regional magistrate sought to do.
[21]
In rejecting the
appellant’s argument on compulsion, the high court reasoned
that compulsion did not arise in the circumstances
because there was
no sufficient evidence of the threat to the appellant’s life
from Ngobeni. Effectively, it rejected the
appellant’s
explanation. As stated earlier, this is not the proper approach in
the application of
s 112(1)(
b
).
It was impermissible for the court to embark on a critical analysis
of the probity and plausibility of the appellant’s
explanation.
Thus, both the regional court and the high court erred in this
regard. The convictions and sentences should thus be
set aside.
[22]
The proper
course to take under the circumstances is prescribed in
s 312
of the
CPA. It provides, among others, that where a conviction and sentence
under
s 112
are set aside on appeal on the ground that
s 113
should have been applied, the matter shall be remitted to the trial
court for it to act in terms of
s 113.
In
S
v Mshengu
2009 (2)
SACR 316
(SCA) para 17 it was held that the course prescribed by
s
312
has to be followed, unless the court of appeal was of the view
that it would lead to an injustice or would be a futile exercise.
In
the present case, I can perceive no injustice nor futility. On the
contrary, it is in the interests of justice and the appellant
that
there should be a remittal.
Sufficiency
of the evidence in count 3
[23]
I turn now to
count 3. As stated earlier, the appellant initially pleaded guilty to
count 3, but the court altered the plea in terms
of
s 113
to one of
not guilty. The State led the evidence of the complainant, an 18 year
old young woman. Briefly, she testified as follows.
In the afternoon
of 23 February 2006 she met the appellant at a taxi rank. She was
hungry. The appellant offered to provide her
with food at his
homestead. When they arrived there, instead of providing food for
her, the appellant assaulted her in front of
his mother. He produced
a knife and dragged her inside a house where he raped her. She
remained at the appellant’s house
the rest of that day. During
the night, which she spent with the appellant, he further raped her.
The following morning the appellant
accompanied her to the taxi rank.
Along the way they met a lady, to whom she conveyed her ordeal. At
that stage the appellant turned
back and no longer accompanied her to
the taxi rank. She later laid a charge of rape against the appellant
the same day.
[24]
It was common
cause that sexual intercourse took place between the complainant and
the appellant. The only dispute is whether there
was consent on the
part of the complainant. According to the appellant, there was. On
the appellant’s version, trouble started
when he failed to give
the complainant money for transport in the morning, as he had
promised her. He did not have the money, and
when they approached at
the taxi rank, he fled from the complainant.
[25]
As stated
already, the issue is whether there was consent. This aspect is
dependent on the evidence of the complainant, who was
a single
witness. In terms of
s 208
of the CPA, an accused may be convicted of
any offence on the single evidence of any competent witness. The
court can base its
findings on the evidence of a single witness, as
long as such evidence is substantially satisfactory in every material
respect
(see
R v
Mokoena
1956 (3) SA
81
(A) at 85G-H). See also
S
v Sauls and others
1981 (3) SA 172
(A) at 180E-G; and
S
v Banana
2000 (2)
SACR 1
(ZSC) at 7
g-i
.
[26]
As to the proper
approach for dealing with the factual findings of a trial court, the
lodestar remains
R v
Dhlumayo
1948
(2) SA 677
(A).
There,
this court expressed the approach in the following collective
principles. A court of appeal will not disturb the factual
finding of
a trial court unless the latter had committed a misdirection. Where
there has been no misdirection on fact by the trial
Judge, the
presumption is that his conclusion is correct. The appeal court will
only reverse it where it is convinced that it is
wrong. In such a
case, if the appeal court is merely left in doubt as to the
correctness of the conclusion, then it will uphold
it.
[27]
However, there
is an important
caveat
to these salutary principles. It is this: where the trial court’s
impressive description of witnesses is not borne out by
the record,
an appeal court will more readily interfere with the findings of the
trial court as to the weight to be attached to
the witnesses’
evidence and its ultimate conclusion based on such findings. See
S
v Heslop
[2006]
ZASCA 127
;
2007 (4) SA 38
;
[2007] 4 All SA 955
(SCA) para 15.
[28]
The regional
magistrate’s approach to the evidence is encapsulated in the
following passage in the judgment:
‘
Therefore the court has to determine
whether the complainant’s version is reliable and whether there
were any contradictions
in her testimony. The complainant gave a
detailed account of the events on the day in question. She did not
contradict herself
during evidence in chief or under
cross-examination by the defence. She was a very reliable witness and
if she was not honest she
would have indicated that she volunteered
to go with the accused because she was hungry. Nothing could have
stopped her to say
that accused just grabbed her or threatened her
with a knife then she was scared and she went with the accused.’
[29]
The difficulty
with this approach is glaring. The regional court considered the
evidence of the complainant in isolation and concluded
that it was to
be believed. On that basis, it assumed that the evidence of the
appellant must
a
fortiori
, be
rejected. That is plainly a wrong approach. The evidence must be
considered as a whole before deciding on which version is
preferred
to the other. The regional court did not embark on this exercise. It
failed to evaluate and critically analyse the evidence
as a whole,
including the evidence of the appellant.
[30]
As observed in
S
v Van der Meyden
1999 (2) 79 (W) at 82C-E the conclusion which is reached (whether it
be to convict or to acquit) must account for all the evidence
- good
or bad. None of such evidence may simply be ignored.
Van
der Meyden
received
the imprimatur of this court in
S
v Van Aswegen
2001
(2) SACR 97
(SCA) para 8. See also
S
v Shilakwe
[2011]
ZASCA 104
;
2012 (1) SACR 16
(SCA) para 11. In the latter case, it was
held that it is not impermissible, as an aid to a proper evaluation
and understanding
of it, to break down the evidence in its component
parts, as long as in assessing the evidence, the court in the
ultimate analysis
considers the totality of the evidence in order to
determine whether the guilt of the accused is proved beyond
reasonable doubt.
[31]
To my mind, the
regional court led itself astray by breaking down the evidence in its
component parts, and failed to assess the
mosaic of the evidence. It
also failed to apply the proper approach to the evaluation of the
evidence laid down by this court in
S
v Chabalala
2003
(1) SACR 134
(SCA) para 15. Had it done so, it would have considered,
among others, the inherent probabilities from the common cause facts.
I consider just two, both which arise from the conduct of the
complainant over the two days. First, after being allegedly assaulted
and raped by the appellant in the afternoon, it was improbable that
she would stay on for the rest of the day at the appellant’s
homestead.
[32]
I accept that
she did not have money for transport. At the very least, she could
have sought refuge for the rest of the day and
the night, with the
appellant’s mother. From her own version, she was sympathetic
to her when the appellant assaulted her.
There is no evidence that
she sought help from her. In the absence of the evidence, it must be
accepted that the appellant voluntarily
stayed on for the night.
Second, it appears that the following morning the two were at peace
with each other. It seems to
be common cause that the agreement was
that the appellant would accompany the complainant to the taxi rank
and make means to get
her a taxi. This is inconsistent with a person
who had been assaulted and raped multiple times.
[33]
What is more,
the complainant’s report to her mother about her ordeal did not
include the assault. The mother testified that
the complainant
reported to her that upon arrival at the appellant’s homestead,
he let her enter the house after which he
locked the door. It should
be recalled that the complainant testified that the appellant had
assaulted and dragged her into the
house.
[34]
The regional
court rejected the appellant’s evidence on the following basis.
If he and the complainant were in love, and there
were no problems
between them, and the sex was consensual, it was difficult to imagine
why the complainant would lay charges against
the appellant. In my
view, the answer lies in the evidence of the appellant. He testified
that he had promised to give money to
the complainant. He was unable
to deliver on that promise in the morning. To get himself out of that
situation, he ran away from
the complainant when they arrived at the
taxi rank. According to the appellant, the complainant was aggrieved
by this, hence the
laying of the charges against him.
[35]
In considering
the evidence, it must always be borne in mind the nature of the onus
resting on the State, which is to prove guilt
of the accused beyond a
reasonable doubt. A court is not entitled to convict unless it is
satisfied, not only that the explanation
of the accused is
improbable, but that is beyond reasonable doubt, false. See
S
v V
2000 (1) SACR
453
(SCA) para 3;
S
v Shackell
2001 (2)
SACR 185
(SCA) para 30;
S
v Mafiri
2003 (2)
SACR 121
(SCA) para 9.
[36]
The dictates of
the above authorities do not seem to have informed the conclusion of
the regional court to convict the appellant.
To my mind, for all of
the reasons stated above, the State’s case fell short of the
onus resting on it. There is nothing
inherently implausible or
improbable about the explanation proffered by the appellant. It is
reasonably possibly true in substance.
Based on the overall
impression of the evidence, I am not satisfied that the guilt of the
appellant was proved beyond a reasonable
doubt. He should have
been acquitted. It follows that his appeal in respect of count 3
should succeed.
Conclusion
[37]
In summary, the
appeal must succeed. In respect of counts 1 and 2, the convictions
and sentences should be set aside. The matter
has to be remitted to
the regional court for it to apply the procedure set out in
s 113
of
the CPA. In respect of count 3, the conviction and sentence should be
set aside without any condition as the appellant ought
to have been
acquitted.
[38]
Two final
aspects. With regard to the costs occasioned by the postponement of
the matter on 21 May 2018 due to non-appearance by
the State, it does
not appear that the State was responsible for the non-appearance. The
non-appearance seems to have been occasioned
by communication
breakdown between the registrar’s office and the office of the
Director of Public Prosecutions. There
is therefore no reason
to mulct the State in costs. Each party should bear its own costs
occasioned by the postponement. On the
second aspect, counsel for the
State requested us to comment on the patent defects in the
charge-sheet, where, instead of
s 51(1)
of the CLAA, reference was
made to
s 51(2).
This obviously has significant importance when it
comes to the sentence. Having reflected carefully on that request,
and in the
light of the conclusions and the order of remittal I am
about to make, comment on that aspect is unwise. I therefore decline
the
invitation to do so.
Order
[39]
In the result
the following order is made:
1 The appeal is upheld.
2 In respect of counts 1 and 2, the order of the high
court is set aside and substituted with the following:
‘
The
appellant’s appeal is upheld and the convictions and sentences
are set aside subject to the following:
‘
The
case is remitted to the regional magistrate, Mrs C Honwana, who is
directed to record pleas of not guilty to counts 1 and 2
and to
require the prosecutor to proceed with the prosecution.’
3 In respect of
count 3, the order of the high court is set aside and substituted
with the following:
‘
The
appeal is upheld and the appellant’s conviction and sentence
are set aside and substituted with the following:
“
The
accused is acquitted on count 3.”
_________________________
T
M Makgoka
Acting
Judge of Appeal
Pillay
AJA
(
dissenting
)
[40]
I have read the
judgment of my colleague, Makgoka AJA. I agree with him that the
appellant’s rights to legal representation
were adequately
explained to him. I also agree that there should not be an order of
costs against the State. Respectfully, I disagree
with my colleague’s
conclusion that the convictions and sentences in counts 1 and 2
should be set aside on account of non-compliance
with
s 113
of the
CPA. I also do not agree that the State had failed to prove the guilt
of the appellant beyond a reasonable doubt in count
3.
[41]
The facts have
been sufficiently set out in my colleague’s judgment, and it is
therefore not necessary to repeat them, save
to emphasise the
following for the sake of my conclusions. On 19 August 2005 the
appellant in the company of another man came upon
two young women in
Joppe in the Province of Limpopo. The appellant’s companion
grabbed one of the women and told the appellant
to grab the other.
Both men had sexual intercourse with both women without their
consent. This incident resulted in the rape charges
in counts one and
two against the appellant.
[42]
For the
incidents of 19 August 2005 the appellant was charged with two counts
of rape read with
s 51
and Schedule II of the
Criminal Law Amendment
Act 105 of 1997
as amended. On the second count it was alleged that
the complainant was 15 years. The magistrate accepted his pleas of
guilty on
both counts and convicted him ‘as charged’.
[43]
On 23 February
2006 the appellant met a young woman waiting for a taxi. She said she
was hungry. He persuaded her to accompany him
to his home where he
promised to give her food. As to what happened thereafter, the
regional magistrate accepted the woman’s
evidence. She
testified that on arriving at the appellant’s home he assaulted
her with his bare hands before dragging her
into his house, ignoring
his mother’s reprimands. He had sexual intercourse with her
three times during the night. The next
morning he accompanied her
towards the taxi stop but, on seeing another woman waiting there, he
ran away.
[44]
For the incident
of 23 February 2006 the appellant was charged with rape. He pleaded
guilty. However, in his explanation in terms
of
s 112(1)(
b
)
of the
Criminal Procedure Act 51 of 1977
he raised the defence that
intercourse with the complainant had been consensual. The magistrate
converted his plea to not guilty.
At the end of a trial on the third
count the magistrate convicted the appellant ‘as charged’.
[45]
The appellant
testified in mitigation of his sentence. The prosecutor proved his
previous convictions. Finding no substantial and
compelling
circumstances but aggravating factors the magistrate sentenced the
appellant to 15 years imprisonment on counts one
and three, and life
imprisonment on count 2.
[1]
[46]
By the time the
matter was heard before the full bench it had become common cause
that the state had failed to prove the age of
the complainant in
count 2. As there was no proof that she was 15 years as alleged
in the charge sheet, life imprisonment
was not an appropriate
sentence. Finding that the evidence proved that the crimes committed
in counts 1 and 2 constituted rape
under Schedule II
Part 1(a)(i)
and
(ii)
[2]
the full bench substituted the
magistrate’s reason for imposing life imprisonment namely, the
age of the complainant in count
2, with a finding that counts 1 and 2
constituted ‘a gang rape’ and therefore ‘the
sentence in counts 1 and 2
of life imprisonment should stand’.
[47]
This appeal
proceeded with the special leave of this court granted on 9 February
2017. I consider grounds of appeal in the following
order:
(1)
Was
the appellant properly informed of the charges and the possible
minimum sentences that might ensue if he were convicted?
(2)
Did
the appellant’s plea explanation suggest that he might raise
the defence of compulsion and if so, should the court have
accepted
his plea of guilty on counts 1 and 2?
(3)
Was
the appellant correctly convicted and sentenced?
[48]
Regarding notice
of the charges and sentence, the magistrate warned the appellant as
follows about the possible sentences for each
charge:
‘
Court:
may I advise you that in terms of count one the applicable sentence
in terms of
section 51
is that of 10 years in respect of a first
offender unless there are substantial and compelling circumstances
that may warrant the
court to impose a lesser sentence.
Section 51(2)
Act 105 of 1997.
In respect of
count 2 the applicable sentence is that of life imprisonment unless
if there are substantial and compelling circumstances
that may
warrant the court to impose a lesser sentence. In count 3 in terms of
the same [legislation] the sentence that is applicable
is that of 10
years in respect of a first offender unless if there are substantial
and compelling circumstances that may warrant
the court to deviate
from the prescribed minimum sentence. Do you understand sir? Accused:
yes I do
’
[49]
The prosecution
had to know what its case was and to draw the charges correctly, by
referring to the precise sections of Schedule
II. Notifying the
appellant precisely of the charges was a fair trial constitutional
right to prevent the risks for the appellant
of being ambushed during
the trial.
[3]
To refer in the charge sheet to
Schedule II, without specifying which part of the schedule the
prosecution relied on, and then splitting
the charges into counts 1
and 2, did not inform the appellant precisely of the charges. Neither
would the charges have alerted
the magistrate of the possibility that
the provisions under Part 1 of the schedule would apply. Without
seeking clarification from
the prosecutor, the magistrate informed
the appellant of the sentencing provisions for rape under Part III in
terms of which the
discretionary minimum sentence graduates from 10,
15 to 20 years depending on whether the appellant was a first, second
or third
offender. The prosecutor whose task it was to correct the
magistrate did nothing of the sort. At no stage did the magistrate or
the prosecutor alert the appellant that the age of the complainant
and the multiple rapes perpetrated would give the court jurisdiction
to impose life sentences on both counts 1 and 2.
[50]
Clearly neither
the magistrate nor the prosecutor had contemplated life imprisonment
on the basis of multiple rapes arising from
counts 1 and 2. As an
accused person, and especially as an unrepresented one, the appellant
was entitled to be informed of the
facts that the State would seek to
prove to establish the court’s jurisdiction to impose life
imprisonment.
[51]
The high court
attempted to fix the irregularity in the formulation and notice of
the charges and possible sentences. Imposing a
life sentence for
‘gang rape’ was a material misdirection. The appellant
was convicted and sentenced on a basis for
which he had no notice.
The high court compounded the misdirection by leaving intact the
sentence of ten (10) years imprisonment
in count 1. As a result, the
facts in count 1 which, together with count 2, conduced to the
appellant receiving not only a life
sentence but also ten years
imprisonment.
[52]
As for the
possible defence of compulsion, the high court correctly pointed out
that the magistrate had to satisfy herself that
‘the force was
of such a nature that it will constitute a defence.’ After
carefully trawling through the evidence at
the hearing, the full
bench illustrated convincingly that despite the magistrate repeatedly
asking the appellant whether his accomplice
had forced him to rape
the complainants, he consistently responded: ‘he just told me’.
She gave him several opportunities
to say that he had been forced;
but he chose not to. Thereafter by accepting his plea of guilty the
magistrate did not exercise
any discretion or evaluate his defence
but interpret his response at face literally.
[53]
The appellant’s
reference to his accomplice having a knife also did not convince
either of the courts below that he was compelled
to rape the
complainants. His evidence was that his accomplice used the knife to
intimidate the complainants.
[54]
Regarding count
3, the magistrate correctly converted his plea of guilty to not
guilty and allowed evidence to be led to establish
whether the
complainant consented to having sexual intercourse with the
appellant. Having heard the evidence the magistrate preferred
the
credibility of the complainant. She found the evidence of the
complainant to be reliable in all respects. But the same was
not said
of the appellant’s evidence.
[55]
The appellant
failed to put to the complainant a vital question namely that he had
proposed love to her and that she had confessed
her love to him. The
failure to put a version enabled the magistrate to justify her
credibility findings against him. The
magistrate’s
preference for the credibility of the complainant in count 3 is not
on appeal before us. Furthermore, once the
court rejected the
appellant’s complaint regarding his fair trial rights being
impugned by the absence of legal representation,
his conviction on
this count was not open to interfere on appeal. In any event
credibility findings on questions of fact are usually
matters for the
trial court. I find no basis for interfering in the magistrate’s
credibility findings or with the conviction
on this count.
[56]
In these
circumstances I would correct the conviction and sentences imposed by
the courts below. Without any reference during the
trial to the rapes
of the complainants in counts 1 and 2 being ‘a gang rape’
under Part I of Schedule II and the State’s
failure to prove
the age of the complainant in count 2, the appellant should be
convicted of rape on each count under Part III
of Schedule II. The
minimum prescribed sentence under this part is 10 years for a first
offender.
[57]
As for the
appropriate sentence on each count, the appellant admitted his
previous convictions for three counts of assault committed
between
January and March 2005 and one count of rape committed on 16 April
2006, after he had committed the offences in this case.
In the
circumstances there were no substantial and compelling circumstances
to justify deviating from the minimum sentences. On
the contrary, the
appellant’s previous convictions correctly counted as
aggravating factors in the courts below. Even though
he was not
warned that if he had a previous conviction for rape his sentence of
10 years could escalate to 15 or even 20 years,
the magistrate did
inform him that the court would deviate from the minimum sentence if
substantial and compelling circumstances
were found. As none was
found, deviating from the minimum sentence of 10 years on each count
is entirely justifiable.
[58]
The appropriate
sentence I would impose is a term of 15 (fifteen) years imprisonment
on each count, 5 (five) years of the sentence
in count 2 to run
concurrently with the sentence in count 1, and 10 (ten) years of the
sentence in count 3 to run concurrently
with the sentence in count 1,
giving an effective sentence of 30 (thirty) years imprisonment.
________________________
D
Pillay
Acting
Judge of Appeal
For
the Appellant: SO Ravele
Instructed
by: SO Ravele Attorneys, Thohoyandou
Phatshoane
Henney Attorneys, Bloemfontein
For
the Respondent: TE Mabapa
Instructed
by: Director of Public Prosecutions, Polokwane
Director
of Public Prosecutions, Bloemfontein
[1]
A
conviction of the appellant under Schedule II Part 1 (b)(i) where the
victim is a person under the age of 16 years.
[2]
Schedule
II Part 1 (a)(i) and (ii) reads:
‘
Rape
as contemplated in section 3 of the Criminal Law Sexual Offences Act
and Related Matters Amendment Act, 2007-
(a) when committed
(i) in
circumstances where the victim was raped more than once whether by
the accused or any other co-perpetrator or accomplice;
(ii)
by more than one person, where such persons acted in the execution
or furtherance of a common purpose or conspiracy’.
[3]
Section 35(3)(
a
)
of the Constitution of the Republic of South Africa, 1996;
S
v Msimango
2018 (1) SACR 276
(SCA)
para 14.