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[2012] ZAWCHC 400
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Matthys v S (A607/11) [2012] ZAWCHC 400 (5 September 2012)
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO: A607/11
DATE:
05 SEPTEMBER 2015
In
the matter between:
JAN
JOHANNES JAKOBUS
MATTHYS
.............................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT:
5 SEPTEMBER 2012
(Coram:
Traverso DJP, et Zondi J, et Henney J)
HENNEY,
J:
INTRODUCTION
[1]
The Appellant, together with two other accused persons, was convicted
of rape of the complainant, [M.......] [S.......] (S........)in
the
Regional Court sitting at Calvinia on 21 February 2002. The
third accused was also convicted on a second charge of rape
of
another person by the name of Lorraine De Wee (“De Wee”).
[2]
The relevant charge relating to the Appellant is that on 26 December
1998 he and the two other accused in or near Rebunie Street,
Calvinia
unlawfully and intentionally had sexual intercourse with [M………]
[S.......] ( without her consent.
All three of the accused
pleaded not guilty to the charge. All of them admitted having
sexual intercourse with the complainant,
but with her consent.
[3]
After the conviction, the Regional Magistrate decided to refer the
matter to the High Court for sentencing due to the fact that
he was
obliged to do so in terms of the applicable provisions of the
Criminal Law (Sentencing) Amendment Act 105 of 1997 (Minimum
Sentences).
[4]
On 21 October 2003,
Nel J
in the Western Cape High Court, Cape Town, found the convictions to
be in accordance with justice and sentenced the appellant on
the
first charge of rape to life imprisonment, the second accused to
fifteen (15) years imprisonment and the third accused also
to life
imprisonment. Accused no. 3 was also sentenced to a further twenty
years imprisonment on the second charge.
[5]
Appellant applied for leave to appeal to the court a quo against both
sentence and conviction, which leave was granted.
GROUNDS
OF APPEAL
[6]
The grounds of appeal against the conviction are the following:
6.1
The Appellant contends that the court
a
quo
erred in accepting the evidence of
[S.......] ( for various reasons.
6.2
These are:
6.2.1
It failed to properly apply the cautionary rule in respect of
[S.......] (’ single evidence;
6.2.2
Swarts’ evidence is unreliable because it is contradicted by
the evidence of De Wee, the other complainant, and the
witness,
Mervyn Oranje;
6.2.3
There were inconsistencies both in the versions of events [S.......]
( presented in court and in the statement she made to
the police;
6.2.4
Her evidence is not consistent with the probabilities, especially in
her testimony that she had given the Appellant love bites,
and that
she did not call out for help when she had sexual intercourse with
the Appellant in the shack, whilst other people were
present.
[7]
The grounds of appeal against sentence are as follows:
7.1
The court did not have the necessary jurisdiction to impose the
prescribed sentence in terms of the provisions of Section 51
of the
Criminal Law (Sentencing) Amendment Act 105 of 1977 (“the
Act”).
7.2
The provisions of the Act were not applicable in this case because
the Appellant was not charged with an offence which would
justify the
imposition of life imprisonment.
7.3
That the Appellant was charged on one count of rape and the charge
sheet did not specify or indicate that the prescribed sentence
in
terms of the Act was applicable.
7.4
Furthermore, he was not properly informed at the commencement of the
trial of the charge against him, any competent verdict
thereto and
what sentence would be applicable should he be convicted. And
it was argued that such omissions violated the
Appellant’s
right in terms of Section 35 of the Constitution, Act 108 of 1996 to
a fair trial
7.5
The trial court only informed the appellant after his conviction that
the matter would be referred to the High Court for sentence.
7.6
During the sentencing procedure the court did not properly consider
the fact that the appellant was only 19 years of age when
he
committed the offence. Further, the court
a
quo
did not have regard to his personal
circumstances as set out in the Social Worker’s report.
7.7
The Appellant was only sentenced a year after he had been convicted.
THE
EVIDENCE
[8]
Maureen [S.......] (, Lorraine De Wee, Mervyn Oranje and Pedro Tromp
testified for the State as witnesses. The Appellant, in
so far as his
charge is concerned, testified himself and called no other witnesses.
[9]
Where relevant for the purposes of this appeal, the court will refer
to the evidence of the other accused and De Wee, the complainant
in
the second charge.
EVIDENCE
OF MAUREEN [S.......] (
[10]
The evidence of [S.......] ( briefly stated is as follows. On
26 December 1998, which was a public holiday, at about
quarter past
midnight, she and De Wee, went out dancing. The place where
they were going was about five minutes walk away
from [S.......] (’
house. The streets were deserted and it was quiet at that time.
[11]
At the corner of Lander Street and Plain Street in Calvinia they
heard voices of people and when they turned around they saw
three
male persons approaching them from behind. These three male persons
were later identified as the Appellant and his two co-accused.
The Appellant approached and grabbed her with his arm around her
neck. She told him not to touch her. Whereupon, he
replied, “
meisie, bly net stil,
want ek het ‘n mes”
.
[12]
S…………… turned around and saw a
knife whose blade she estimated to have been between 12 –
13cm
long. The Appellant held the knife in his right hand, whilst he
held [S.......] ( with his left arm around her neck.
The
Appellant was at that stage not known to her. The other two
accused approached De Wee. At that stage, the Appellant
wanted
to know where they were going to which [S.......] ( replied that they
were on their way to a dance. The Appellant
and his co-accused
walked with them.
[13]
On their way they approached the house of a friend of [S.......] ( by
the name of Margie and wanted to go into the house.
The
Appellant did not want her to go to Margie’s house. A
struggle between [S.......] ( and the Appellant ensued and
she held
onto the fence of Margie’s house. The Appellant then
threatened to stab her with the knife. One of his
co-accused
managed to calm him down. [S.......] ( was then forced to walk
with the Appellant towards an open piece of land
near a toilet.
[14]
De Wee and accused no.3 then left them and went to an adjacent yard.
The Appellant and accused no.2 remained behind with
[S.......] (.
The Appellant then demanded that she have sexual intercourse with
him. She refused, whereupon the Appellant
once again told her
“
do you see this knife
”.
He further told her she would first have to do it whilst he had the
knife in his hand. He thereafter ordered
her to lie on the
ground and to pull down her jeans and panties. He also
undressed himself, climbed on top of her and had
sexual intercourse
with her. He had sexual intercourse with her for about 5 –7
minutes but thereafter he stopped as
he could not achieve orgasm.
[15]
While this was happening, accused no. 2 was in their presence and he
observed what was happening. While [S.......] (
remained lying
on the ground, accused no.2 climbed on top of her and he also had
sexual intercourse with her. This also lasted
between 5 –
7 minutes. He was also unable to reach climax, stopped and got
off her.
[16]
The Appellant thereafter said he again wanted to have sexual
intercourse with her. Whilst having sexual intercourse with
her
for the second time, accused no.3 and De Wee returned. The
Appellant at that stage asked De Wee why she was looking at
them and
then intimated to her that he was also going to have sexual
intercourse with her. De Wee expressed her unwillingness to
do so and
accused no.3 remarked to the Appellant that he should wait because he
was not done with De Wee. Accused no.3 and
Lorraine De Wee
thereafter left them again.
[17]
Two minutes thereafter Accused no.3 came back and reported that De
Wee had managed to run away. The Appellant then got
up and
wanted to go and look for De Wee. Accused no.3 remarked that De
Wee ran away because the Appellant had a knife.
[18]
After the Appellant had finished having sexual intercourse with
[S.......] (, she was further forced to walk with him whilst
he held
the knife towards her. Throughout he also held her with his arm
around her neck. They walked to a different
location where
there was a shack. She was unable to run away.
[19]
She was forced into the shack, ordered once again to lie down.
In this shack, there were two other persons, a male and
a female.
The shack was situated in the backyard of the house of Appellant’s
mother. [S.......] (’ house was
on the opposite side of the
road. Accused no.2 and Accused no.3 were also with them in the
shack.
[20]
She was once again forced by the Appellant to lie down. Accused
no.2 and Accused no.3 sat at her feet. The Appellant
once again had
sexual intercourse with her for about 5 minutes. Once again he
could not reach climax.
[21]
Thereafter, they left the shack and walked to a nearby veld. At
this place [S.......] ( was once again forced to have
sexual
intercourse with the Appellant for a fourth time, which lasted about
two to three minutes. Once again the Appellant
could not reach
climax.
[22]
The Appellant thereafter told accused no.2 to have sexual intercourse
with [S.......] (. The second accused thereafter
had sexual
intercourse with her. He also had difficulty in reaching climax
and then he requested her to bend over, whereafter
he had sexual
intercourse with her from behind. He reached climax.
Accused no.3 thereafter had sexual intercourse with
her, also from
behind. He also reached climax.
[23]
Thereafter the Appellant wanted to go back to the shack. On
their way back, [S.......] ( removed her high heel shoes.
She
walked in front of the Appellant and his co-accused. They came
to a fence which had an opening and they climbed through.
At
that stage, she also heard the voices of people approaching.
She then took a chance and ran away.
[24]
While running, she saw M……. O…… (“O…..”)
and P…… T………
(“T……..”).
She was shouting and was upset. The Appellant ran after her and
was grabbed by
O……. She immediately told Oranje
about her ordeal. The Appellant then told Oranje that she was
his girlfriend.
[25]
Whilst Oranje and Tromp held onto the Appellant, accused no.2 and
accused no.3 ran away. Before the police arrived, the
Appellant
managed to escape. [S.......] (Laid a charge and went for a
medical examination on the same day.
[26]
Swarts testified that the Appellant and the two other accused were
not known to her. She denied that she had given them
consent to
have sexual intercourse with her. She further stated that if
the Appellant was not armed with a knife, she would
definitely have
fought back. She further stated that the Appellant took a
leading role and instructed the other accused to
do as he said.
She also testified that the Appellant told her to remain lying down,
so that the others could have intercourse
with her. She further
denied that she had given the third accused R50,00.
DE
WEE’S EVIDENCE
[27]
De Wee’s evidence of the events up until she was first
separated from [S.......] ( is similar to the latter’s version
of events. She confirmed that [S.......] ( was threatened with
a knife by the Appellant and that she cried. She further
stated
that accused no.3 admonished the Appellant about the way he treated
[S.......] (. De Wee testified as follows.
She stated
that they had walked to an open piece of land after having been
threatened by the Appellant and his co-accused.
[28]
Thereafter, accused no.3 forced her to accompany him to an adjacent
plot of land away from the Appellant and [S.......] (.
Accused
no.3 had sexual intercourse with her without her consent.
[29]
Thereafter, they returned to the location where they had left
Appellant and [S.......] (. When they arrived there the
Appellant was having sexual intercourse with [S.......] (.
Whilst doing this the Appellant asked her why she was looking
at him
and told her that he wanted to have sexual intercourse with her. Then
Accused no.3 replied that he was not yet finished
with her and then
he took her to a toilet not far from there and had sexual intercourse
with her for the second time. After
accused no.3 was finished,
he said he would help her get away. He then left her next to the
toilet and he went back to the Appellant.
[30]
Later he returned and he took her to an open piece of land and left
her there. He said that he was going back to help
[S.......] (.
He came back later and said [S.......] ( had managed to run away.
Thereafter D…. W….. and accused
no. 3 walked in the
direction of D…. W….’s house. As they
approached the house they saw people standing
next to it.
Accused no.3 then turned around and walked away. De Wee proceeded to
walk to her house. There she told
the people about the incident
and was informed that [S.......] ( was already at home.
[31]
She further stated in cross-examination that the Appellant only took
out the knife when they reached Margie’s home.
She could
not remember how it looked like. She also confirmed that the
Appellant was the only person who had a knife.
[32]
Although she does not explicitly refer to accused no.2 in her
evidence-in-chief, she emphatically stated during cross-examination
that accused no.2 also had sexual intercourse with [S.......] (.
She said in evidence in chief ...
"toe
is Jan besig met Maureen – Ja ... wel, toe laterhand toe staan
hy op van Maureen af. Toe begin die een met Maureen".
During cross-examination she went into
more detail and said that after the Appellant had sexual intercourse
with Maureen [S.......]
(, accused no.2 ordered [S.......] ( to
remain lying down and had sexual intercourse with her.
OTHER
EVIDENCE
[33]
Tromp testified that on the morning in question, at about 2’o
clock a report was made to him by one Johannes Matthys
that females
were being raped at a place opposite his house. It was further
reported to him that the perpetrators were armed.
He then went
to call Oranje to accompany him, and to go and investigate. On his
way to Oranje, he heard a female shouting “
help
me please
”. This noise came
from the house on the other side of the road. Tromp and Oranje
then went to a shack that was
at the back of the house to enquire
what was happening and at that stage [S.......] ( came running out.
She was holding onto
the front of her pants, which were loose, and
which she was trying to fasten.
[34]
The Appellant and two other persons were behind [S.......] ( and the
Appellant wanted to grab hold of her. Tromp testified
further
that he then shoved her aside towards Oranje because the Appellant at
that stage wanted to grab and get hold of [S.......]
( again.
[35]
He did not get the impression that the Appellant and [S.......] ( had
a relationship because it seemed to him as if he wanted
to attack
her. The Appellant did not want to leave [S.......] ( alone and
the witness says he punched him in order to subdue
him. The Appellant
was also later hit by some unknown person with a rake before he ran
away.
[36]
Swarts was crying and hysterical. She reported that she was
raped by three men. Some few minutes later De Wee also
arrived
at the scene. She appeared unkempt and reported that she was
also raped.
[37]
In cross-examination Tromp said that [S.......] ( was in the shack
when she shouted for help. He further testified that
the
appellant did not retaliate after hitting with him with the fist
because he was very drunk. Oranje confirmed the version
of
Tromp. He says further that when they went to the place across
road, he heard someone calling his name.
[38]
Anna Miller who was with Tromp and Oranje also testified. Her
evidence was similar to theirs. She added that [S.......]
(’
clothes were dusty. She also observed that [S.......] ( had
abrasions on her back. The rest of her evidence
does not take
the case further.
APPELLANT’S
TESTIMONY
[39]
The Appellant himself testified and called no witnesses. During
evidence the Appellant confirmed that he met up with
[S.......] ( and
De Wee in the still of the night of a day in question. He was
accompanied by accused no.2 and accused no.3.
Both [S.......] (
and De Wee were known to him. [S.......] ( and De Wee told them that
they were on the way to the dance which
had just started. They
also told them that they wanted to drink beer.
[40]
Whilst on their way to the dance, he and [S.......] ( were involved
in a discussion which ultimately led to him requesting
her to have
sexual intercourse with him. She agreed, but said that it
should remain secret. Thereafter, they went to
have sexual
intercourse next to an outside toilet located on an open piece of
land.
[41]
He also testified that he could not reach climax. He stopped
and then she agreed that accused no.2 could have sexual
intercourse
with her. At that stage, she did not know accused no.2 and
accused no.3. According to the Appellant thereafter
it seemed
that [S.......] ( was not interested anymore in drinking beer or
going to dance, but instead wanted to be with them so
that she could
have consensual sexual intercourse with them.
[42]
At a later stage, after they left the open piece of land on which the
toilet was situated, they proceeded to walk to the shack
which
[S.......] ( testified about. [S.......] ( then suggested that
they have sexual intercourse once again in the shack
since he did not
reach a climax earlier. For a second time they had sexual
intercourse. He also confirmed that his
uncle John Matthys, was
sleeping in that shack at that time.
[43]
The Appellant further testified he only had sexual intercourse with
[S.......] ( on two occasions. These were once near
a toilet on
an open piece of land and then for the second time in the shack.
EVALUATION
[44]
On a conspectus of the evidence, I am in agreement with the findings
of the Regional Magistrate that Maureen [S.......] ( was
a reliable
and credible witness. She was absolutely clear in her mind as
to what role the Appellant, accused no.2 and accused
no.3 played.
She gave a detailed account of the role each person played and could
clearly recall what happened, this notwithstanding
the fact that this
incidence occurred almost 4 years earlier, and must have been a
traumatic experience for her. She was
subjected to lengthy
cross-examination and stood her ground. Swart’s version
is substantially corroborated by that
of De Wee, in respect of
[S.......] (’ allegations that they were forced to accompany
the Appellant and the other two accused.
Her evidence was also
confirmed by the evidence of Tromp and Oranje who testified that
[S.......] ( ran away from the Appellant
towards them and shouted for
help. De Wee also corroborates [S.......] (’ version in
that she testified that she saw
the Appellant raping [S.......] ( at
least once in her presence on the piece of open land near the
toilet. This was after
she had returned with accused no.3 after
they left the company of the complainant and the Appellant.
[45]
The discrepancies between [S.......] (’ evidence and that of
the other witnesses in the light of the totality of her
evidence can
be regarded as non material and of little significance and which do
not affect her credibility at all. There
is also no reason to
find that the Regional Magistrate was wrong in finding that her
version was consistent with probabilities.
[46]
Swarts’ conduct that specific evening was influenced by the
fear she had for the Appellant and the other two accused.
The
Appellant was also armed with a knife. It is therefore understandable
that she feared for her safety. The Appellant was
a stranger to
her and threatened her. It is therefore not strange that when
he requested her to give him love bites she went
ahead and did so.
She was criticized for not crying out for help when the Appellant
raped her in the shack whilst there were
other people present.
Once again, at that stage the Appellant was armed and her behaviour
was understandable.
[47]
What furthermore strengthens her credibility is the fact that the
uncle of the Appellant, Johannes Matthys, who the Appellant
confirmed
was sleeping in the shack, and who had since passed away, went
to complain to Tromp and Oranje and made a report
that something
untoward had happened in the shack.
[48]
This gave rise to Oranje and Tromp to go and investigate. The
evidence in this regard is not in dispute. In the
process, they
found the Appellant in the company of [S.......] (. She
immediately made a report to them that she was raped.
This
strengthens the credibility and the plausibility of her version.
[49]
The Appellant, on the other hand, was not a good witness. His
evidence was riddled with inconsistencies, he contradicted
himself
and his version was highly improbable. This is clearly borne
out by the record. The trial Magistrate correctly
rejected his
version as false and not reasonably possibly true. For these reasons,
I am of the view that the Magistrate was correct
in convicting the
Appellant. His appeal against the conviction therefore cannot
succeed.
The
failure to refer to the sentencing provisions in terms of
Section
51 of Act 105 of 1997 in the charge sheet
[50]
The Regional Court characterized the offence for which it convicted
the appellant and the other accused persons as “
...
rape committed in circumstances where the victim was raped more than
once whether by the accused or by any co-perpetrator or
accomplice”
.
Such offence, as such, fell under Part 1 of Schedule 2 of the Act 105
of 1997. The court, as it was obliged to do
in terms of section
52(1)
as it then stood, stopped the proceedings and committed the accused
for sentence by a High Court having jurisdiction
[1]
.
The High Court, in terms of section 51(1) (a) of the Act, sentenced
the appellant to life imprisonment which is the prescribed
minimum
sentence for the offence of which the appellant was convicted.
[51]
It was not stated in the charge sheet that the Appellant was charged
with the offence of rape as referred to in Part 1 of Schedule
2 of
the Act and that the provisions of Section 51 of Act 105 of 1997 were
applicable. Only at an advanced stage of the proceedings,
after
evidence had been led by the State and given by the Appellant and
accused no.2, did the Regional Magistrate explain to accused
no.3,
after he had elected to conduct his own defence, that, given the
facts of this case, if he should be convicted he could be
referred to
the High Court which could sentence him to life imprisonment.
[52]
Upon conviction the Regional Magistrate made a finding that he had
convicted the Appellant and his co-accused of an offence
of rape
where the victim was raped more than once whether by the accused or
by any co-perpetrator or accomplice. It needs
to be mentioned
that this decision was taken before the decision of
S
v Legoa 2003(1) SACR 13 SCA
and
S
v Ndlovu 2003(1) SACR 331
SCA to which
I will refer at a later stage.
[53]
Before the hearing of any evidence, the Regional Magistrate could not
have been aware of this fact without it being mentioned
explicitly in
the charge sheet that there would be a possibility that the Appellant
and his co-accused would be convicted of the
offence of rape as
described in Part 1 of Schedule 2 of the Act 105 of 1997.
[54]
It is clear that the charge sheet, as it read at the commencement of
the trial did not state that the Appellant was charged
with an
offence of rape that could result in the imposition of a sentence as
prescribed in Section 51 of the Act if he were found
guilty.
The question arises as to whether the failure to do so results in the
Appellant’s right to a fair trial being
infringed.
[55]
The Supreme Court of Appeal had occasion to deal with this very issue
in
S v Legoa
(supra)
.
In this matter the accused was convicted of dealing in 276,3kg of
dagga and sentenced to the prescribed minimum sentence
of 15 years
imprisonment. The charge sheet made no mention of the value of
the dagga involved. The Minimum sentence
provisions would only
come into operation if it had been alleged that the value of the
dagga was over R50 000,00. The
provisions of the Act and
their applicability were not mentioned in the charge sheet.
There was instead a reference in the
charge sheet to the penalty
provisions of the Drug and Drug Trafficking Act 140 of 1992.
[56]
Cameron JA
at page 22 paragraph [20] said the following:
“
Under
the common law it was therefore “desirable” that the
charge sheet should set out the facts the State intended
to prove in
order to bring the accused within an enhanced sentencing
jurisdiction. It was not however essential. The Constitutional
Court
has emphasised that under the new constitutional dispensation, the
criterion for a just criminal trial is “a concept
of
substantive fairness which is not to be equated with what might have
passed muster in our criminal courts before the Constitution
came
into force”. The Bill of Rights specifies that every accused
has a right to a fair trial. This right, the Constitutional
Court has
said, is broader than the specific rights set out in the subsections
of the Bill of Rights” criminal trial provision.
One of those
specific rights is “to be informed of the charge with
sufficient detail to answer it”. What the ability
to “answer”
a charge encompasses this case does not require us to determine. But
under the constitutional dispensation
it can certainly be no less
desirable than under the common law that the facts the State intends
to prove to increase sentencing
jurisdiction under the 1997 statute
should be clearly set out in the charge sheet”.
After
referring to a decision of
Borchers J
in
S v Blaauw 1999 (2) SACR W at 301H –
302B
he went on to hold at 23 para
[21]:
“
[21]
The matter is, however, one
of substance
and not
form
, and I would be
reluctant to lay
down a general rule that the charge must in every case recite either
the specific form of the scheduled offence
with which the accused is
charged, or the facts the State intends to prove to establish it. A
general requirement to this effect,
if applied with undue formalism,
may create intolerable complexities in the administration of justice
and may be insufficiently
heedful of the practical realities under
which charge sheets are frequently drawn up. The accused might in any
event acquire the
requisite knowledge from particulars furnished to
the charge or, in a superior court, from the summary of substantial
facts the
State is obliged to furnish. Whether the accused’s
substantive fair trial right, including his ability to answer the
charge,
has been impaired, will therefore depend on a vigilant
examination of the relevant circumstances
”.
(“own
underlining”)
[57]
In a later decision of the SCA in
S v
Ndlovu
2003 (1) SACR 331
SCA
, the
accused was charged with the unlawful possession of a 9mm pistol.
In the charge sheet, there was no allegation that
this was a
semi-automatic firearm. Reference was only made in the charge
sheet to the penalty provisions contained in the
Arms and Ammunition
Act 75 of 1969. Only after questions were posed by the
Magistrate to a witness did it emerge that the
firearm was a
semi-automatic weapon. The court held at paragraph [10] that
the reference in the charge sheet to the penalty
provisions of Act 75
of 1969 was “
calculated to convey
the impression that the State would seek the penalty provided for in
the Act
”.
Mpati
JA
(as he then was) held (at para [11])
that: “
Whilst it is
desirable that the charge-sheet should set out the facts the State
intends to prove in order to bring an accused within
an enhanced
sentencing jurisdiction, to do so is not essential. R v Zonele
and Others
1959 (3) SA 319
(A) at 323A-H; S v Moloi
1969 (4) SA 421
at 424A-C.”
However,
Mpati
JA
drew attention to the judgment of
Legoa
and
Cameron JA’s
reminder that an accused person had a constitutionally guaranteed
right to a fair trial that embraced a concept of substantive
fairness. However,
Mpati JA
noted that:
“
Cameron
JA, declined however, to lay down a general rule that the
charge-sheet must in every case recite either the specific form
of
the scheduled offence (in that case dealing in dagga with a value of
more than R50 000,00) with which an accused is charged,
on the
facts the State intends to prove to establish it”.
He held that: “
Whether the
accused’s substantive fair trial right, including his ability
to answer the charge, has been impaired, will depend
on a vigilant
examination of the relevant circumstances (in para [21])
.”
[58]
The matter of
S v Mvelase
2004 (2) SACR
531
(W
), is similar to the present
except that the accused in that case had been charged with three
counts of rape against the same complainant.
He was duly
convicted on all three charges. After conviction the matter was
committed to the High Court for sentencing in
terms of the minimum
sentencing legislation. It was contended by the legal
representatives of the accused in the High Court
that the proceedings
in the Regional Court were not in accordance with justice because no
reference was made in the charge sheet
to the minimum sentencing
provisions in the Act.
[59]
In her judgment
Borchers J
drew attention to the fact that several Provincial Divisions had held
that where an accused person elects to conduct his own defence
and he
is facing a prescribed minimum sentence the presiding officer should
explain this fact to him and indeed encourage him to
obtain legal
representation. After referring to the relevant authority on
this point,
Borchers J
stated that where an accused was legally represented, there was no
such duty to inform the accused. She further held the view that
the
facts that were present in the
Legoa
and
Ndlovu
cases,
were distinguishable from the matter which was before her for
consideration. In the
Legoa
matter, the accused and by inference his legal representative had
been “
misled
”
into believing that the penalty provisions of the
Drugs and Drug
Trafficking Act 140 of 1992
were applicable and not the provisions of
the Minimum Sentencing Act.
Borchers
J
was further of the view that the
facts in
Ndlovu
matter
could also be distinguished from the matter before her in that the
SCA there held at 335f that the reference in the charge
sheet to the
penalty provisions in the Arms and Ammunition Act 75 of 1969 was
“
calculated to convey the
impression that the State would seek the penalty provided for in that
Act
”.
[60]
She came to the conclusion (at 535 E-G) that
...."[T]he
same cannot be said in the present matter. There was indeed no
reference to the provisions of the Act in the
three charges of rape,
but the fact that all three charges were framed in identical terms
can lead a legal representative to no
other conclusion that the
accused is facing charges defined in Part 1 of Schedule 2 of the Act
and that, if convicted, the accused
faces the possibility of
imprisonment for life. While there might be a failure to state
this fact specifically, there can
be no question of the accused or
his legal representatives being misled by the charge-sheets in regard
to the nature of the sentence
which the accused faced. As the
accused was legally represented it was, in my view, not necessary to
explain to the accused
himself the nature of the sentence he faced”.
[61]
She further went on to say that certain procedural rights need not be
explained to an accused with legal representation for
the very simple
reason that a legal representative is a legally qualified person who
is expected to know the law, and it would
be a sad day indeed if a
presiding officer were to be required to assume the incompetence of
legal representatives and thus to
treat the accused as if he/she were
unrepresented.
Borchers J
further held that there may well be a case where the performance of
the legal representative is so clearly incompetent that the
presiding
officer would be well advised in the interest of ensuring a fair
trial to bring certain aspects of the law to the attention
of the
accused and his legal representatives. These cases are the
exception, rather than the rule.
[62]
In
S v Mseleku 2006(2) SACR 574 (D)
Pillay J
disagreed with the conclusions of
Borchers
J
. She said that it is not her
experience that an assumption can safely be drawn on the competence
of a legal representative
and pointed out that in the vast majority
of cases, accused are represented by counsel or attorneys appointed
by the Legal Aid
Board (currently Legal Aid South Africa) and the
Justice Centre (at 578H – 579A). The learned Judge noted
that in her
experience, inexperienced counsel is not an unusual
occurrence. The learned Judge went on to say that this is a
fact that
she is entitled to take judicial notice of. The Judge went
further and stated that an accused person may well have conducted his
defence differently had he been aware of the gravity of the sentence
he faced (at 579 B – C). It would further be difficult
for a presiding officer to judge the competency or otherwise of
counsel at the pleading stage and such an assessment can only be
made
in most cases as the trial proceeds (579 B – C).
[63]
The court in the
Mseleku
matter went on to conclude that the prosecution must make it known in
clear terms in the indictment that it relies on the sentencing
regime
created by Section 51 of Act 105 of 1997, and it must not only alert
the legal representative but also an undefended accused.
The
court held that what is required in terms of
Ndlovu’s
case is that the accused be given sufficient notice of the State’s
reliance on the sentencing regime created by the Act,
so as to enable
the accused to properly conduct his or her defence. The court
finally concluded at 581C - E, relying on
Ndlovu’s
case, that if any reference is made in the indictment to the State’s
reliance on the Minimum Sentence Act, a court may well
be justified
in assuming that counsel would have drawn that to the accused’s
attention. Where no such mention is made,
notwithstanding its
factual framework, the provisions should be brought to the attention
of the accused by the Court whether the
accused is legally
represented or not.
[64]
I respectfully disagree with the approach of
Pillay
J
. The approach followed by the
learned judge is not in my view consistent with the approach adopted
by
Cameron JA
in the
Legoa
case
and it is unduly formalistic. The learned judge did not examine or
enquire, in line with the approach proposed by
Cameron
JA,
whether the omission to inform the
accused of the scheduled offence impaired the accused’s
substantive fair trial rights.
The judgment merely focused on
the single fact that the charge sheet did not inform the accused of
the scheduled offences, without
assessing whether this omission may
have affected the accused’s right to a fair trial in a
substantial manner in the particular
circumstances of the case.
The ultimate issue
Pillay J
failed to consider is that in the case where the State omitted to
inform him or her of the scheduled offences in the charge sheet
or
indictment, the question is not whether an accused was legally
represented or not, or whether his legal representative
had informed
an accused person of the scheduled offences. The question is
whether upon a vigilant examination of the circumstances
of the
particular case such an omission or failure resulted in the fair
trial rights of the accused person being impaired.
[65]
Effective and competent legal representation is a weighty factor that
has to be taken into consideration in assessing whether
an accused’s
substantive fair trial rights had been impaired.
[66]
A full bench of this court had occasion to deal with this issue in
S
v Steyn
2011 (1) SACR 384
per
Moosa J
. The court
followed the
dictum
of
Legoa
and applied the dictum in
Ndlovu.
The court in the Steyn case came to the conclusion
that the accused did not have a fair trial, because the Magistrate
failed to
explain the provisions of the Prescribed Sentencing
Legislation to the accused. There was also no other indication
from the
record that the accused had been informed of the provisions
of the Act.
[67]
The court followed the
dictum
in
S v Makatu
2006 (2) SACR 582
where at paragraph 5
Lewis JA
,
held ..."
Following Legoa this court
in S v Ndlovu held that the relevant sentence provisions of the Act
must be brought to the attention
of an accused in such a way that the
charge can be properly met before conviction
".
[68]
The mere absence of an indication either in the charge sheet or at
the commencement of the trial that the State will rely on
a scheduled
offence does not per sé result in substantial unfairness.
In deciding whether a trial was substantially
unfair the Court should
have “
vigilant examination
of the relevant circumstances
”
of the case. In some cases after a vigilant examination of the
relevant circumstances that prevailed in a case, a
trial may well be
deemed to be unfair if an accused person had not been informed in the
charge sheet of a scheduled offence.
[69]
A trial may well be substantially unfair to an accused in the
following circumstances: a) He or she is undefended, and had
not been
informed by the presiding officer of the applicable minimum
sentencing provisions, (and the charge sheet makes no mention
thereof) (b) He or she is “
misled
”
[2]
into believing that the penalty provisions referred to in the charge
sheet will apply and (c) where reference is made to certain
penalty
provisions of a specific Act in the charge sheet and where such
reference was “
calculated
to convey the impression that the State would seek the penalty
provided for in the Act
”
[3]
(d)
where there is no other information, circumstances or indication
given to an accused which would lead him to believe that
the only
sentencing provisions that could be applicable is prescribed in terms
of Act 105 of 1997. In my view, this approach
is consistent
with the
dictum
as
set out in
Legoa
and
Ndlovu
.
[70]
In the present matter I am of the view that the Appellant’s
fair trial rights were not substantially impaired because
of the fact
that the applicable scheduled provisions of the Act were not
mentioned in the charge sheet.
[71]
My conclusion is based on the following reasons:
(a)
The Appellant and his co-accused were all
legally represented during the trial. There can be no question
as to the competence
of his legal representative. The manner in
which he conducted the defence on behalf of the Appellant does not
warrant such
a conclusion.
S v
Halgryn
2002 (2) SACR 211
at 211 e – f
.
(b)
The Appellant and his legal representative
were at least given copies of the statement of Maureen [S.......] (,
wherein she in detail
describes that she was raped by the Appellant
and the co-accused. She also describes how many times she was
raped.
This information was at the disposal of the Appellant’s
attorney. It was used to cross-examine the complainant.
In fact, the Appellant’s attorney was able to put to the
witness [S.......] ( that the Appellant indeed had sexual intercourse
with her, not four times as she claimed, but only twice. Any
competent attorney representing an accused person in the Regional
Court on such a serious charge must have known that having regard to
the facts of this case, upon conviction there might be a possibility
that a sentence as prescribed in Act 105 of 1997 would be imposed.
(c)
The Appellant, his co-accused, and his attorney must have been aware
of the fact, when the presiding Regional Magistrate warned
accused
no.3 after the same attorney appearing for all three of them had
withdrawn for accused no.3 due to a conflict of interests,
that there
was a possibility that upon conviction a prescribed sentence of life
imprisonment could be imposed
[4]
.
(d)
At that stage the Appellant and his
attorney did not protest or inform the court that they were not aware
of the applicability of
the minimum sentencing provisions.
Although the explanation was given to accused no.3, the Appellant and
his attorney must
have been aware of it, even if this happened at a
very late stage.
(e)
If they only became aware of it at that
time, it should have been brought to the notice of the presiding
officer so that appropriate
action could be taken to prevent the
violation of the accused’s right to a fair trial. Such
action could have included,
for example, the recalling of the State
witnesses, the re-opening of his case, a request to call further
witnesses, a request to
start the trial
de
novo
. This could all have been
done before conviction.
(f)
Even after the conviction stage the
Appellant or his representative, when the Regional Magistrate
informed them of his decision
to refer the matter to the High Court
for sentencing, could have raised their concern by saying they were
not aware of the fact
that the prescribed sentences were applicable.
In fact, even in the High Court before
Nel
J
when they initially appeared, this
point was never raised.
[72]
I am therefore of the view after having regard to the surrounding
facts and circumstances that the Appellant had the requisite
knowledge that the scheduled offences are applicable in this case.
[73]
The next question to consider is whether the sentence of life
imprisonment by
Nel J
is an appropriate one.
Miss
de Jongh
for the Appellant argued that the High Court in sentencing the
accused did not consider his personal circumstances, especially
his
age. I am unable to agree that the sentencing court did not
properly consider all the relevant circumstances of this
case.
[74]
There is no indication that the sentencing court did not properly
apply its mind or failed to have regard to the personal circumstances
of the Appellant. The Appellant although relatively young, was
not an innocent child or naive young adult when he committed
the
offence. He had previous convictions, one of which is robbery
which can be regarded as a violent offence.
[75]
The Appellant took the leading role. He was the one who threatened
the complainant with a knife. He was the one who,
apart from
raping [S.......] ( himself, no less than four times, encouraged
accused no.2 and accused no.3 to rape her to the extent
that she was
raped 7 times. His age in itself, when he committed the
offence, is merely a neutral factor in this specific
case and cannot
be regarded as substantial and compelling.
[76]
The offence that was committed and the surrounding circumstances
thereof were without a doubt very serious.
In
S
v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA)
at
5A
– E
it
was held that ... “
Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim. The rights to dignity, to privacy and the
integrity of every person are basic to the ethos of the
Constitution
*
and
to any defensible civilisation. Women in this country are
entitled to the protection of these rights. They have a legitimate
claim to walk peacefully on the streets, to enjoy their shopping and
their entertainment, to go and come from work, and to enjoy
the peace
and tranquillity of their homes without the fear, the apprehension
and the insecurity which constantly diminishes the
quality and
enjoyment of their lives. The appellant showed no respect for their
rights. He prowled the streets and shopping malls
and in a short
period of one week he raped three young women, who were unknown to
him. He deceptively pretended to care for them
by giving them lifts
and then proceeded to rape them callously and brutally, after
threatening them with a knife. At no stage,
did he show the slightest
remorse. The Courts are under a duty to send a clear message to
the accused, to other potential
rapists and to the community: We are
determined to protect the equality, dignity and freedom of all women,
and we shall show no
mercy to those who seek to invade those rights.
We communicate that message in this case by an order that the appeal
of the
appellant against his convictions and sentences is dismissed”.
[77]
The complainants Maureen [S.......] ( and Lorraine De Wee were
abducted and threatened with a knife. Maureen [S.......] (,
was
treated with utter disrespect and contempt and was further violated
and humiliated in the worst possible manner. She was subjected
to
prolonged and continuous acts of rape by the Appellant who cowardly
forced himself on her by threatening her with a knife throughout
her
hellish ordeal.
[78]
There is no doubt that the ordeal she was subjected to, mostly at the
hands of the Appellant, would have a long lasting psychological
effect on her. It is exactly for these types of reprehensible
behaviour that the legislature in its wisdom has prescribed that
mandatory sentence should be imposed, so that vulnerable members of
society can be protected against people such as the Appellant.
I am therefore of the view that given the circumstances of this case
the sentence of life imprisonment was appropriate.
In
the result therefore, I propose that the following order be made.
ORDER
That
the appeal against conviction and sentence be dismissed.
HENNEY,
J
I
agree and it is so ordered.
TRAVERSO,
DJP
I
agree.
ZONDI,
J
[1]
Currently
amended. Sec 1 of 38 of 2007 – which came in operation on 31
December 2007. This had the effect to
provide
the Regional Courts with powers to impose a sentence of life
imprisonment for offences committed in Part 1 of Schedule
2 of the
Act.
[2]
Legoa
supra para 26
[3]
Ndlovu
at 335 e - f
[4]
Record
page 297