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[2014] ZAWCHC 174
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Johannes v S (A14/14) [2014] ZAWCHC 174 (24 November 2014)
SAFLII
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Certain
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IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
CASE
NO.: A14/14
DATE:
24 NOVEMBER 2014
In the matter
between
MANUEL
JOHANNES
.............................................................
Appellant
And
THE
STATE
..........................................................................
Respondent
JUDGMENT
DELIVERED: 24 NOVEMBER 2014
SAMELA, J
[1] The Appellant
was charged with one count of rape in the Mitchells Plain Regional
Court, Cape Town, alternatively with the contravention
of Section 14
(1) (a) of Act 23 of 1957 on the 2 November 2001. He pleaded not
guilty to both charges. He exercised his constitutional
right
regarding the plea explanation, and elected to remain silent. He was
legally represented throughout his trial. After evidence
was led he
was found guilty of rape on the 12 April 2002 and referred to the
court a quo for sentencing under the Criminal Law
Amendment 105 of
1997 (“the Act”).
[2] Van Der
Westhuizen AJ in the court a quo confirmed the conviction by the
Regional Magistrate. On the 25 March 2003, after finding
that there
were no substantial and compelling circumstances, the court a quo
sentenced the Appellant to life imprisonment in terms
of Section 51
(1) of the prescribed minimum Act.
[3] On the 23 May
2003, the court a quo refused the Appellant leave to appeal against
both his conviction and sentence. On petitioning
the Supreme Court
of Appeal, the Appellant was granted leave to appeal against his
sentence on 28 January 2013.
[4] The factual
findings by the Regional Magistrate are uncomplicated. A….
P……, the Complainant, lived with
her father at M…..
P…... in the C…. F…., Cape Town. The parents
were divorced when she was 10 years
old. She was in Grade 10 at
school at the time of the incident. She testified through
intermediary Ms L….. W…...
in terms of Section 170 A of
the Criminal Procedure Act 51 of 1977 (as amended). She testified
that she was 16 years old, born
on 20 March 1985. She knew the
Appellant as Johannes Manuel or Manuel Johannes, who was introduced
to her by her boyfriend, during
January 2000. She saw the Appellant
daily, and they became friends. On the 23 September 2000 she was at
her boyfriend’s
house. Later, that same day, as her boyfriend
was not at home, she was accompanied home by her boyfriend’s
sister and her
boyfriend. They had walked through the park, where
they met the Appellant who offered to walk her home as he was going
towards
that direction. The Appellant on the way took out a knife,
threatened and forced her to go with him to his house. The Appellant
had threatened to kill her if she refused to go with him. She
complied because she was scared. She was taken to the Appellant’s
house which was dark as the lights were not on. At one stage the
Appellant left and came back after a while having locked her
inside
the house. She informed the Appellant’s brother that the
Appellant wanted to rape her, however, the Appellant had
ordered his
brother to leave the room.
[5] The Appellant
pressed the knife against her side, grabbed and pulled her to the
bedroom. Inside the bedroom he threw her onto
the bed, took off her
jeans and panties. He took a plastic bag, put it over his penis and
had sexual intercourse with her. The
complainant testified that when
she cried the Appellant ordered her to keep her mouth shut. When he
had finished raping her, he
instructed her to get dressed and
informed her that he would walk her home. According to the
Complainant when the door was opened,
she ran away and the Appellant
chased and grabbed her and threatened to have sexual intercourse with
her again. The Complaint
stated that the Appellant eventually
accompanied her home at 3 a.m. (the next day). He further
instructed her not to disclose
to anyone what had happened.
Notwithstanding the instructions, she testified that she decided to
tell her best friend W….
W…... who in turn informed her
mother. W…..’S mother phoned the police.
[6] The Appellant
was 39 years old at the time of the trial. He testified that on the
day of the incident, he was drinking beer
at his house when he saw
the Complainant and two other persons in front of his gate. He had
noticed that there was a problem as
the two people tried to walk the
Complainant to her home and she was refusing to go home. He offered
to accompany her half way
home and the two people left them. They
went to P…….. place where they bought liquor (beers),
and went back to his
(the Appellant) house. Whilst he fetched a
track suite for her, he noticed that she had taken her pants off.
They kissed each
other and had sexual intercourse. After they had
finished they drank one more time before he accompanied her halfway
home as she
was afraid that her father would see him. In a nutshell,
his defence is that sexual intercourse was consensual.
[7] The crux of this
appeal concerns the age of the victim. This court is required to
establish whether the court a quo was correct
in sentencing the
Appellant in terms of Section 51 (1) read with Part 1 of Schedule 2
of the prescribed minimum sentence Act.
Such application by the
court a quo attracted a life imprisonment sentence.
[8] Mr M. Calitz for
the Appellant made the following submissions:
(a) viewed
objectively the rape does not fall within the category as reserved by
the Supreme Court of Appeal for life sentences;
(b) although a knife
was used to subdue the Complainant, she nevertheless did not sustain
serious injuries in the process;
(c) the incident
took place six (6) months short of her 16th birthday, a factor that
brought the rape within the purview of the
Criminal Amendment Act 105
of 1997;
(d) the court unduly
considered the Appellant’s previous convictions (which were
committed in 1982, 1984, 1985 and 1991 respectively),
which were
older than 10 years and bore no similarities to the offence before
the court;
(e) the court a quo
failed to consider the eight (8) months the Appellant had already
served incarceration;
(f) the Appellant’s
brother had testified that the Appellant had expressed remorse for
what he had done;
(g) the court a quo
took the view that remorse was diminished by putting the Complaint
through a trial, and that the Appellant had
a constitutional right to
plead not guilty and test the state’s case and that the
exercise of that right should not be held
against him; and
(h) That since
twelve (12) years of incarceration, the Appellant started a gym in
F……, and that was indicative of
the fact that the
Appellant intended to better himself and to contribute to the
society.
[9] Ms P.A. Thaiteng
argued on the state’s behalf that the Appellant’s
argument was flawed and could not be regarded
as a substantial and
compelling factor to deviate from the prescribed minimum sentence.
She referred to the record and conceded
that age indeed was not fully
established.
[10] Where it is
pivotal that the victim’s age should be ascertained for the
purposes of sentencing in a rape case or any
other offence/s, it is
incumbent on the state to establish the victim’s age beyond
reasonable doubt.
[11] In S v Vilakazi
2009 (1) SACR 552
(SCA) at 564, para 25 and 26, the court said the
following:
“[25] It is
convenient at the outset to deal with the three features relating to
the complainant that the court below took
account of in weighing what
sentence to impose.
[26] The Complainant
was not 11 years old when the offence was committed. According to
the complainant she was 15 when she gave
evidence, which places her
age at between 14 and 16 when the offence was committed. (In answer
to a question the complainant,
who had no formal schooling, said that
she could not remember the date of her birth). A witness who
encountered the complainant
for a short time on the day the incident
occurred said that he estimated her age to be about 11 or 12 years
but that evidence naturally
carries no weight. The district surgeon
who examined the complainant on the day of the incident recorded her
age as 13 years.
The source of that information was not disclosed
and nobody bothered to enquire nor to query its inconsistency with
the evidence
of the complainant. The Magistrate estimated her age to
be below 16 years and her own evidence of her age was accepted by the
prosecution and the defence alike, both at the trial and in the
proceedings before us. The age of the Complainant at the time
the
offence occurred was clearly a material factor to be taken account of
in sentencing. To take account of the fact that she
was 11 when in
fact she was at least 14 and might have been over 15 was
misdirection”.
In the above case
the following factors are clear:
(i) the Complainant
testified that she was 15 years when she gave evidence. Later in the
trial, answering a question, the Complainant
who had no formal
schooling, said she could not remember her birth date;
(i) the district
surgeon who had examined the Complainant on the day of the incident
had recorded her age as being 13 years;
(ii) the Magistrate
had estimated her age to be below 16 years as the Complainant’s
testimony as to her age was accepted
by both the state and the
defence;
(iii) the court
pointed out that taking into account that the Complainant was eleven
(11) years, when in fact she was at least fourteen
(14) years and
might had been over 15 years was a misdirection; and
(iv) the Appellant
was sentenced to 15 years imprisonment.
[12] Similarly in
Mapule v S
[2012] JOL 29242
(SCA) at 3 paras 6,7 and 8. The court
said the following:
“[6] The
magistrate convicted the appellant of rape, “as charged”.
The charge-sheet reads:
The accused is
guilty of the of the offence of rape in that upon or about the 1st
day of January 1999 and at or near Madodonga Village
in the
Tshilwavhusiku district in the Regional Division of Northern
Province the said accused did unlawfully and intentionally
have
sexual intercourse with . . . a female person, without her consent.
No mention is made
of the complainant’s age or the provisions of the minimum
sentence legislation. The obviously hearsay and
unreliable evidence
by the complainant that she was (twelve) 12 years old at the time of
the incident, was gainsaid by the doctor
who examined her. His
impression from her physical development was that she might well have
been older. The State failed to tender
reliable evidence to resolve
the uncertainty regarding the complainant’s age.
[7] Therefore, when
subsequent to conviction, the magistrate advised the appellant of his
rights and said that because the complainant
was twelve (12) years
old at the time of the incident, the provisions of the minimum
sentence legislation compelling the imposition
of life imprisonment
had to be applied, he erred in two aspects. First, the complainant
was not proved beyond reasonable doubt
to have been under the age of
16 years at the time of the incident. Second, the State did not
prosecute the appellant for the
rape of a girl under the age of
sixteen (16) years in terms of section 51(1) read with Part 1
Schedule 2 of the minimum sentence
legislation. When the court below
sentenced the appellant, it erred in the same respects.
[8] The wording of
the minimum sentence legislation makes it clear that it applies to
persons convicted of the offences listed in
the schedules. The
particular crime a person is convicted of is therefore a
jurisdictional fact essential to the application of
the various
sentences prescribed in the minimum sentence legislation. The rape
of a child under the age of 16 years resorts
under Part 1 Schedule
2 in terms of section 51 (1) attracts a minimum sentence of life
imprisonment, unless substantial and compelling
circumstances are
shown to exist that justify the imposition of a lesser sentence”.
In the above matter
the following was illustrated:
(a) the hearsay and
unreliable evidence by the complainant that she was 12 years at the
time of the incident;
(b) the doctor who
had examined her was of the impression from her physical development
that she was well older than what she had
testified concerning her
age;
(c) the state failed
to tender reliable evidence to resolve the uncertainty regarding the
victim’s age;
(d) the Appellant
was convicted of rape (and not rape of a girl under the age of 16
years);
(e) the court
pointed out that in terms of section 51 (2) (b) of the Criminal Law
Amendment Act, such a conviction attracted a minimum
sentence of 10
years’ imprisonment in the absence of substantial and
compelling circumstances; and
(f) the court was of
the view that a discretionary sentence of 10 years imprisonment would
be appropriate in the circumstances.
[13] In Rammoko v
Director of Public Prosecutions
2003 (1) SACR 200
(SCA) the court had
this to say in paras 1,4,9,12,13 and 14:
“[1] Since the
complainant was under the age of 16 years a sentence of imprisonment
for life had to be imposed on the appellant
(section 51 (1) unless
substantial and compelling circumstances existed which justified the
imposition of a lesser sentence (section
51(3)). The regional
magistrate accordingly committed the appellant for sentence in the
High Court.
[4] In S v Malgas
[2000] ZASCA 156
;
2001 (1) SA 1222
(SCA);
2001 (1) SACR 469
, this Court held that the
imposition of the prescribed sentence need not amount to a shockingly
injustice (“skokkende onreg”)
before a departure from it
is justified. That such a sentence would be an injustice is enough
(paragraph [23]). The suggestion
that for circumstances to qualify
as substantial and compelling they must be exceptional was also
rejected (paragraphs [10], [30]
and [31]. It follows that the
interpretation given by Cillié J to the concept “substantial
and compelling”
circumstances is erroneous and amounts to a
misdirection. This Court is thus at large to consider the question
of sentence afresh.
[9] From a perusal
of the record in this matter one cannot but conclude that the case
for the State was presented casually, both
in the regional court and
in the court a quo. As I have already stated no evidence was led
before Cillié J. The evidence
reveals that following the rape
the complainant’s grandfather sent the complainant away to live
with her mother. Her mother
was called as a witness but was never
asked how and to what extent the complainant had been affected by the
rape. Dr Storm was
never invited to comment on the likely effect the
ordeal will have on the complainant as she grew older.
[12] For the rape of
a girl under the age of 16 years (as in the present case) the
prescribed sentence is life imprisonment. However,
the court’s
discretion to impose a different sentence has not been eliminated by
the Act, but in the absence of weighty
justification the prescribed
sentence must be imposed (Malgas, paragraph [25]). In the matter of
The State v Boesman Mahamotsa
(case 85/2001, 31 May 2002, yet to be
reported), a case where the respondent, a 23 –year-old man,
had raped two 15-year-old
girls, I had occasion to say the
following:
“[17] The
rapes that we are concerned with here, though very serious, cannot
be classified as falling within the worst category
of rape. What
emerges from this is that a victim may be under the age of 16 years
is not the only criterion necessary for the
imposition of a sentence
of life imprisonment. Further in the Boesman Mahamotsa case:
“Even in cases
falling within the categories [of rape] delineated in the Act there
are bound to be differences in the degree
of their seriousness.
There should be no misunderstanding about this: they will all be
serious but some will be more serious
than others and, subject to the
caveat that follows, it is only right that the differences in
seriousness should receive recognition
when it comes to the meting
out of punishment. As this Court observed in S v Abrahams
2002 (1)
SACR 116
(SCA) ‘some rapes are worse than others and the life
sentence ordained by the Legislature should be reserved for cases
devoid of substantial factors compelling the conclusion that such a
sentence is inappropriate and unjust’ (paragraph 29).
[13] Life
imprisonment is the heaviest sentence a person can be legally
obliged to serve. Accordingly, where section 51 (1) applies,
an
accused must not be subjected to the risk that substantial and
compelling circumstances are, on inadequate evidence, held to
be
absent. At the same time the community is entitled to expect that
an offender will not escape life imprisonment – which
has been
prescribed for a very specific reason – simply because such
circumstances are, unwarrantedly, held to be present.
[14] And the placing
of this important information before the sentencing court is not the
responsibility of State counsel alone.
The presiding officer, who
must satisfy himself before imposing the prescribed sentence that no
substantial and compelling circumstances
are present, also bears some
responsibility”.
[14] In the above
matter the court clearly pointed out the following:
(i) raping a person
who was under the age of 16 years, a sentence of life imprisonment
has to be imposed on an Appellant (section
51 (1) unless substantial
and compelling circumstances exist which justify the imposition of a
lesser sentence (section 51 (3));
(ii) where the
Appeal court find a misdirection by a sentencing court, it is at
large to consider the question of sentence afresh;
(iii) for the rape
of a girl under the age of 16 years, the prescribed sentence is life
imprisonment. The court’s discretion
to impose a different
sentence had not been eliminated by the Act, however, where there is
absence of weighty justification, the
prescribed minimum sentence
must be imposed (para 12);
(iv) that life
imprisonment is the heaviest sentence on anyone the sentence has to
be imposed on;
(v) placing of an
important information before sentencing is not only the
responsibility of the state also judicial officer/s bear
some
responsibility;
(vi) some rapes are
worse than others and that life imprisonment should be reserved for
cases devoid of substantial factors; and
(vii) the matter was
remitted to the court a quo for reconsideration of the sentence.
[15] The seriousness
of rape and the challenges the courts are facing was clearly stated
by Mahomed CJ in S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at d-f where the
court said:
“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 South Africa 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 Courts are under a duty to send a
clear message to the accused in the
present case, to other potential
rapists and to the community that the Courts are determined to
protect the equality, dignity and
freedom of all women, and they will
show no mercy to those who seek to invade those rights”.
[16] Our courts
continue condemning sexual violence to women and children see DPP v
Prins (Minister of Justice and Constitutional
Development & two
amici curiae intervening) (369/12) [2012] 106 ZASCA (15 June 2012),
the court said:
“No judicial
officer sitting in South Africa today is unaware of the extent of
sexual violence in this country and the way
in which it deprives so
many women and children of their right to dignity and bodily
integrity and, in the case of children, the
right to be children; to
grow up in innocence and, as they grow older, to awaken to the
maturity and joy of full humanity. The
rights and bodily integrity
are fundamental to our humanity and should be respected for that
reason alone. It is a sad reflection
on our world, and societies
such as our own, that women and children have been abused and that
such abuse continues, so that their
rights require legal protection
by way of international conventions and domestic laws, as South
African has done various provisions
of our Constitutional and in the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007 (the Act)”.
[17] In the present
matter, the state in establishing the Complainant’s age dealt
with it in the following manner:
“State
Prosecutor: [A…..] how old are you?
Complainant: 16
years old;
State Prosecutor:
What is your date of birth [A…]?
Complainant: The
20th of the third month 1985”.
[18] When Mr W…..
P….. (Complainant’s father) was led by the State
Prosecutor regarding the Complainant’s
age, he replied in the
following manner:
“State
Prosecutor: Mr P…… is it correct that A….. P…..,
the Complainant in this case is your daughter?
Mr P…... It
is correct yes.
State Prosecutor:
How old is she sir?
Mr P……: She
is now 16 years old.
State Prosecutor:
Can you tell the court what her birth date is?
Mr P…... It
is her birthday the 2….th of the third month.
Court: Sorry will
she be 17 this year?
Mr P……: She
will be 17.
Court: So is it
1…..?
Mr P…..: That
is correct, yes”.
[19] Ms A……
K…..’s evidence (Complainant’s mother), was in
complete variance with that of Complainant’s
father. She
testified as follows:
“State
Prosecutor: Ma’am is it correct that you are a biological
mother of the Complainant in this matter, A……
P……?
Ms K……: Yes
State Prosecutor:Can
you tell the court what her date of birth is?
Ms K………:
The 20th of the third 1…... She will be 17. So it’s
1….. Sorry sir.
State Prosectutor:
How old was she in the year 2000:
Ms K…... 15.
State Prosecutor:
Okay. Ma’am the date of birth. Are you certain about the date
of birth you gave earlier?
Ms K…….:
1985 or 1984 but she will be 17 next week. Please excuse me for that
because I get very confused with that.
State Prosecutor:
Are you in possession of her date of birth?
Ms K……….:
No I haven’t got it on me.
State Prosecutor:
Pardon your Worship I’m incorrect. He said ’85. She
said ’84 _ _ _ But she’s got an
ID but I don’t know
if she’s got it on her.
Court: But you say
she will be 17 this year?
Ms K…... No
next week she will be 17.
Court: Next week.
So according to my calculations then it will be – if you say
she’s 17 then it must have been 1985.
Ms K……….:
Ja”
[20] From the above,
it is evident that the question of the Complainant’s age was
dealt with casually, as there was no evidence
beyond reasonable doubt
placed before the court as to the exact birth date of the
Complainant. There was no birth certificate
or any documentation
proving the Complainant’s age. There was no medical evidence
produced in court regarding the Complainant’s
age. She was not
examined by the district surgeon to establish her age (J88 form
absent). Also the Complainant’s parents
seem not to be ad idem
regarding the Complainant’s birth date. The issue of the
Complainant was indeed casually discussed
by the court a quo, which
in my view amounted to a misdirection.
[21] The Appellant’s
personal circumstances were as follows:
(a) the Appellant
was 41 years;
(b) he was married
and was the sole breadwinner;
(c) had previous
convictions committed more than ten years as stated in the SAP 69;
(d) the Appellant
was involved in community work, for example, he had established a
body building club in F…….;
Aggravating factors
were amongst other things:
(i) the Appellant
showed no remorse, only his brother testified that the Appellant was
remorseful;
(ii) Appellant
breached the Complainant’s trust as well as her friends who had
entrusted with taking care of the Complainant
to safely walked her to
her home;
(iii) threatened the
Complainant with a knife and raped her at his own house; and
(iv) Appellant was
not moved by the Complainant’s cries when he forced himself
onto her sexually.
The court a quo
further remarked that :
(a) the Complainant
was of big built and according to the Appellant’s wife, she
looked like an adult;
(b) the Complainant
sometimes served alcohol at a private bar;
(c) she was 15½
years old at the time of the incident;
(d) the J88 form
which should have been completed by a district surgeon or surgeon was
absent;
(e) the court
accepted that the Complainant sustained no serious physical injuries
during the incident;
(f) regarding
psychological injuries the court said:
“The
psychological side however, is a different story. The social
worker’s report in this regard shows that the plaintiff
has to
a large extent be psychologically damaged by this crime, to such an
extent that she was unable to successfully continue
her schooling and
that she had to repeat a year as a result of that. Her inter-personal
relationship with her friends and family
has been adversely affected
and she feels rejected. Your conduct caused her to be admitted to
hospital for a period, in order
for her to calm her mind and getting
her emotions under control. It is clear that you had, in more than
one respect broken her
spirit”
[22] In sentencing
the Appellant, the court a quo did not find any substantial and
compelling circumstances and sentenced the Appellant
to life
imprisonment in terms of section 51 (1) of the Criminal Law Amendment
Act 105 of 1997 (“the Act”).
[23] Section 51 (1)
of the Act provides:
“Notwithstanding
any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a
person it has convicted of an
offence referred to in Part 1 of Schedule 2 to imprisonment for
life”.
Section 3 of the Act
provides:
“If any court
referred to in subsection (1) or (2) is satisfied that substantial
and compelling circumstances exist which
justify the imposition of a
lesser sentence than the sentence prescribed in those subsections,
it shall enter those circumstances
on the record of the proceedings
and must thereupon impose such lesser sentence: Provided that if a
regional court imposes such
a lesser sentence in respect of an
offence referred to Part 1 of Schedule 2, it shall have jurisdiction
to impose a term of imprisonment
for a period not exceeding 30 years.
(Aa) When imposing a
sentence in respect of the offence or rape the following shall not
constitute substantial and compelling circumstances
justifying the
imposition of a lesser sentence:
(i) the
complainant’s previous sexual history;
(ii) an apparent
lack of physical injury to the complainant;
(iii) an accused
person’s cultural or religious beliefs about rape; or
(iv) any
relationship between the accused person and the complainant prior to
the offence being committed”.
Part 1 of Schedule 2
of the Act, referring to rape provides:
“Rape as
contemplated in section 3 of the Criminal Law (Sexual Offences 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
by any 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;
(iii) by a person
who has been convicted or two or more offences of rape or compelled
rape, but has not yet been sentenced in respect
of such convictions;
or
(iv) by a person,
knowing that he has the acquired immune deficiency syndrome or the
human immunodeficiency virus;
(b) where the victim
–
(i) is a person
under the age of 16 years;
(ii) is a physically
disabled person who, due to his or her physical disability, is
rendered particularly vulnerable; or
(iii) is a person,
who is mentally disabled as contemplated in
section 1
of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act, 2007
; or
(c) involving the
infliction of grievous bodily harm.
[24] The above
sections clearly indicates that where the rape victim was under the
age of 16 years, a life imprisonment had to be
imposed in terms of
section 51
(1) read with
Part 1of
Schedule 2 of the Act, unless
substantial and compelling circumstances existed which justified the
imposition of a lesser sentence,
in terms of section 51 (3) of the
Act.
[25] It follows that
the following was of concern in this matter:
(a) there was no
birth certificate or identity document or any form of documentation
which illustrated the Complainant’s age
placed before court;
(b) both parents
were not unanimous when testifying in court regarding the
Complainant’s birth date, as shown above; and
(c) no medical
evidence was placed before the court regarding the Complainant’s
age.
[26] As a result of
the above evidence absence in court, I am of the view that the
prosecution failed to prove the Complainant’s
age beyond a
reasonable doubt. It follows that the state’s failure amounted
to a misdirection. The misdirection led to
the Appellant being
charged with a wrong section of the minimum sentence Act, and
sentenced incorrectly.
[27] The correct
section which the court a quo should have applied is section 51 (2)
(b) read with Part III of Schedule 2.
Section 51 (2) b of
the Act provides:
“Notwithstanding
any other law but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a
person who has been convicted
of an offence referred to in –
(b) Part III of
schedule 2, in the case of –
(i) a first
offender, to imprisonment for a period not less than 10 years;
(ii) a second
offender of any such offence, to imprisonment for a period not less
than 15 years; and
(iii) a third or
subsequent offender of any such offence, to imprisonment for a period
not less than 20 years”.
Part III of Schedule
2 provides:
“Rape or
compelled rape as contemplated in
section 3
or
4
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 2007
,
respectively in circumstances other than those referred to in
Part
1.
Sexual exploitation
of a child or sexual exploitation of a person who is mentally
disabled as contemplated in
section 17
or
23
or using a child for
child pornography or using a person who is mentally disabled for
pornographic purposes, as contemplated in
section 20
(1) or
26
(1) of
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act,
2007
, respectively”.
The application of
the above section, on conviction, would have attracted a minimum
period of 10 years imprisonment, in the absence
of substantial and
compelling circumstances.
[28] It is suggested
that the following guidelines should assist the court where age of a
Complainant is an issue in a rape case
or any offence. The following
evidence should be placed before court:
(a) birth
certificate or identity document issued by the Department of Home
Affairs or any document issued by any country recognised
as proving
birth date of a person by the Department of Home Affairs;
(b) baptismal
certificate or any religious document issued by an accredited
religious institution indicating the birth date of a
person,
recognised by the Department of Home Affairs;
(c) any foreign
document, issued by any country, indicating birth date of a person
recognised by Department of Home Affairs;
(d) medical evidence
by a district surgeon indicating the age of the person; and
(e) evidence
produced or elicited by parents of the victim, which must be
unanimous, not contradictory like in our present matter.
[29] The imposition
of an appropriate sentence falls within the discretion of the trial
court. It is only where the trial court
has misdirected itself,
which misdirection should appear ex facie the record that a court of
appeal would intervene. The appeal
court would not lightly interfere
with the sentence, see R v Dhlumayo and Another
1948 (2) SA 677
(A).
In S v Rabie
1975 (4) SA 855
(A) at 857 D-E the court went further
and said:
“1. In every
appeal against sentence, where imposed by a magistrate or a Judge,
the Court hearing the appeal –
(a) should be guided
by the principle that punishment is “pre-eminently a matter for
the discretion of the trial Court”;
and
(b) Should be
careful not to erode such discretion: hence the further principle
that the sentence should only be altered if the
discretion has not
been “judicially and properly exercised”.
2. The test under
(b) is whether the sentence is vitiated by irregularity or
misdirection or is disturbingly inappropriate”.
After carefully
perusing at the records in this case, the imposition of life
imprisonment in the circumstances in my view is improper.
In the
light of this finding, this court is fully entitled to impose a fresh
sentence.
[30] As earlier
alluded to, the Appellant was sentenced to life imprisonment on the
25 March 2003. He has been incarcerated since
that date. I have in
this judgment held that a sentence of life imprisonment ought not to
have been imposed as there is no proper
basis on which it can be said
that the age of the complainant was proved beyond reasonable doubt.
Notwithstanding that, the offence
which the Appellant is by its very
nature serious. What I find aggravating is that the complainant is
by its very nature serious.
What I find aggravating is that the
complainant was threatened with a knife. Not only that, she had
placed her trust on the Appellant,
who was well-known to her. I am
of the view that a discretionary sentence of 15 years would be
appropriate in these circumstances.
[31] In the result,
I would propose the following:
1. The appeal
succeeds to the extent that the sentence of life imprisonment imposed
on the Appellant is set aside;
2. The Appellant is
sentenced to 15 years imprisonment antedated to the 25 March 2003, in
terms of s282 of the Criminal Procedure
Act 51 of 1977 (as amended).
M.I. SAMELA
Judge of the High
Court
I agree.
V. SALDANHA
Judge of the High
Court
I agree and it is
so ordered.
T. NDITA
Judge of the High
Court