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[2014] ZAWCHC 192
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Jacobs v S (A322/14) [2014] ZAWCHC 192; 2015 (2) SACR 370 (WCC) (10 December 2014)
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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Appeal No: A322/14
DATE: 10 DECEMBER 2014
REPORTABLE JUDGMENT
In the appeal of
RICHARD
JACOBS
...................................
Appellant
And
THE
STATE
...........................................
Respondent
JUDGMENT
DELIVERED ON 10 DECEMBER 2014
BLIGNAULT J and VAN ROOYEN AJ
Introduction
[1] Appellant, a male aged 49 years at
the commencement of the trial in the court a quo in 2013, was charged
with a contravention
of
section 3
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 32 of 2007
, in the
regional court for the regional division of the Cape held at Blue
Downs. According to the charge sheet he had sexual
intercourse with
the complainant (a female aged 44 years) without her consent on 17
November 2012 at or near Kalkfontein.
[2] Appellant, who was represented by a
legal representative throughout, pleaded not guilty to the charge and
stated that he had
consensual sexual intercourse with the
complainant. He was convicted on 21 August 2013 and on 23 August
2013 he was sentenced
to 15 years imprisonment.
[3] Leave to appeal against the
conviction and sentence was granted by the regional court.
[4] The following facts are common
cause: On Saturday 17 November 2012 at approximately 17h00 the
complainant was at a shebeen
when appellant arrived. They knew each
other from drinking together in groups at shebeens before. They
went to another tavern
where appellant bought two bottles of wine.
They then went to the complainant’s house where she lived with
her husband.
The door was locked and they drank the wine outside.
They had intercourse outside the house.
The complainant’s version
[5] On 17 November 2012 the complainant
and a friend shared a 750ml bottle of wine at a shebeen. When
appellant arrived at the
shebeen the complainant requested him to buy
her a drink or to give her R5, 00. He told her that he did not have
change and that
they had to buy liquor at another tavern. They
accompanied each other to the other tavern where appellant bought two
bottles of
wine. From there they went to the complainant’s
house. It was dusk.
[6] They sat next to each other on a
wooden bench outside the complainant’s house and the appellant
had just poured each of
them a glass of wine when he grabbed the
complainant by her neck. She resisted but he was too strong and she
could not scream
because the appellant’s grip on her neck was
too tight. He dragged her behind the house and threw her on the
ground. He
pulled down her pants and raped her.
[7] Appellant left with his wine and
the complainant ran, crying, to the house of her sister-in-law, D…..
A….. She
informed her sister-in-law that she had been raped
by the appellant. Her sister-in-law tidied her hair and called the
police.
The police took her to Karl Bremer Hospital where she was
examined. She was not intoxicated at the time of the incident.
The evidence of D..........
A..................
[8] At about dusk on 17 November 2012
the complainant (her sister-in-law) arrived at her house crying and
told her that she had
been raped by appellant. The complainant told
her that she and appellant had been drinking outside the
complainant’s house
when the appellant grabbed her by her neck,
threw her on the ground, pulled down her pants and raped her.
[9] The complainant’s hair was
untidy and full of sand. The outside back of her pants was covered in
faeces. There were marks
on her neck. She smelled of wine but was not
intoxicated. Ms A.….. telephoned the police who fetched the
complainant.
The medical report
[10] The complainant was examined at
Karl Bremer Hospital and the report of the medical practitioner who
examined her was handed
in as an exhibit. The contents thereof were
admitted by the appellant.
[11] The report reflects the following:
The complainant reported that a man had grabbed her by her neck and
raped her. There was
sand on her clothes. Her pants were stained
with faeces. There was a faint reddish bruise on her neck which was
fresh and consistent
with throttling. She was tearful and very
upset. Her vagina and anus were covered with sand. She smelt
lightly of liquor but
was not intoxicated.
Appellant’s version
[12] According to appellant the
complainant asked him for R5,00 at the shebeen but he did not have
change. He and the complainant
shared two beers that he had bought.
They accompanied each other to another shebeen where he bought two
bottles of wine which
they took to the complainant’s house.
They drank one bottle of wine.
[13] The complainant asked him for
R50,00 which he gave to her in exchange for intercourse. She
approached him as to kiss him and
touched his penis. They then had
intercourse on a plank which was lying on sand. The complainant
consented to intercourse and he
did not throttle her. Afterwards she
asked him for a further R20,00 to have her hair done and he gave it
to her. He left with
his wine.
Appellant’s conviction
[14] The regional magistrate delivered
a balanced and considered judgment. He remarked that the complainant
had made a good impression
as a witness. Her version was
corroborated by the contents of the medical report. He was satisfied
that she was speaking the
truth and that her evidence was reliable.
The evidence of Ms A……., he said, was also reliable and
acceptable. The
evidence of appellant, on the other hand, was open
to severe criticism. He held that appellant’s version was so
improbable
that it could simply not be accepted as reasonably
possibly true.
[15] It is settled law that the
assessment of the evidence ought to be informed by the approach
adopted by the Supreme Court of
Appeal in Stevens v The State
[2005]
1 All SA 1
(SCA) at 2 para [1]:
‘Courts in civil or criminal
cases faced with the legitimate complaints of persons who are victims
of sexually inappropriate
behaviour are obliged in terms of the
Constitution to respond in a manner that affords the appropriate
redress and protection.
Vulnerable sections of the community, who
often fall prey to such behaviour, are entitled to expect no less
from the judiciary.
However, in considering whether or not claims
are justified, care should be taken to ensure that evidentiary rules
and procedural
safeguards are properly applied and adhered to.’
[16] In respect of their conflicting
versions relating to the alleged rape, the complainant and the
appellant were single witnesses.
In Stevens v The State, supra, para
[17], the Supreme Court of Appeal emphasised that ‘the evidence
of a single witness
should be approached with caution, his or her
merits as a witness being weighed against factors which militate
against his or her
credibility.’
[17] The following principle enunciated
in S v Jackson
1998 (1) SACR 470
(SCA) at 476 e – f also
applies:
‘… the cautionary rule in
sexual assault cases is based on an irrational and out-dated
perception. It unjustly stereotypes
complainants in sexual assault
cases (overwhelmingly women) as particularly unreliable. In our
system of law, the burden is
on the State to prove the guilt of an
accused beyond reasonable doubt – no more and no less. The
evidence in a particular
case may call for a cautionary approach, but
that is a far cry from the application of a general cautionary rule.’
[18] In Stevens v The State, supra,
para [18] the Supreme Court of Appeal cautioned against a
‘compartmentalised approach’
to the assessment of
evidence, ‘namely an approach which separates the evidence
before the court into compartments by examining
the ‘defence’s
case’ in isolation from the ‘state’s case’
and vice versa.’ The court
proceeded to refer with approval to
the matter of S v Van der Meyden
1999 (1) SACR 447
(W) at 449 C –
450 B and in particular the necessity that ‘the conclusion
which is reached (whether it be to convict
or to acquit) must account
for all the evidence.’
[19] The trial court was evidently
impressed by the complainant as a witness. The transcript of her
evidence reflects no reason
to question this impression. She was
consistent in her version of events. Support for the credibility of
the complainant’s
version may be found in the fact that her
reports to her sister-in-law and the medical practitioner who
examined her were in accordance
with her version of events. The
reports are not corroboration for her version but show that she acted
in a manner consistent with
her evidence that she had been raped.
It goes to her credibility. See S v Hammond
2004 (2) SA 303
(SCA)
at 311.
[20] Moreover, the following
considerations support the version of the complainant:
(a) She was upset and crying when she
reported the incident to her sister-in-law and the medical
practitioner who examined her.
(b) Her hair was untidy and full of
sand. Her anus and vagina were covered with sand. The outside back of
her pants was covered
with faeces.
(c) There were marks on her neck
“consistent with throttling” according to the report of
the medical practitioner.
[21] The trial court criticised the
evidence of appellant in several respects. The record shows that
this criticism of appellant’s
evidence is justified. Reference
is made to the following:
(a) The court below correctly
criticised appellant’s inconsistent and garbled version of the
alleged payment that he made
to the complainant for intercourse.
(b) The same can be said for
appellant’s inconsistent and vague versions of discussions that
he and the complainant allegedly
had about intercourse.
(c) Appellant contradicted himself by
first testifying that they had intercourse on a plank that was lying
on the sand. However,
in cross-examination he testified that the
plank was resting on poles.
(d) Appellant had no explanation for
the marks on the complainant’s neck, the faeces on her pants
and the fact that she was
covered in sand.
[22] We agree with the regional
magistrate’s conclusion that appellant’s guilt had been
established beyond reasonable
doubt. He was therefore correctly
convicted.
Appellant’s sentence
[23] Appellant’s sentencing was
subject to the provisions of the Criminal Law Amendment Act 105 of
1997 (‘Act 105 of
1997’). Section 51(2)(b)(i) of Act 105
of 1997 provides that a court shall sentence a person who is a first
offender of
an offence referred to in Part III of Schedule 2 to
imprisonment for a period not less than 10 years. Section
51(2)(b)(ii) provides
that a second offender of such an offence
shall be sentenced to imprisonment for a period of not less than 15
years. The offence
of which appellant had been convicted, rape as
contemplated in section 3 of Act 32 of 2007, is listed in Part III of
Schedule 2
to Act 105 of 1997. It reads as follows:
‘3 Rape
Any person ('A') who unlawfully and
intentionally commits an act of sexual penetration with a complainant
('B'), without the consent
of B, is guilty of the offence of rape.’
The concept ‘sexual penetration’
is defined as follows in s 1 of Act 32 of 2007:
'sexual penetration' includes any act
which causes penetration to any extent whatsoever by-
(a) the genital organs of one person
into or beyond the genital organs, anus, or mouth of another person;
(b) any other part of the body of one
person or, any object, including any part of the body of an animal,
into or beyond the genital
organs or anus of another person; or
(c) the genital organs of an animal,
into or beyond the mouth of another person’
[24] Section 51(3)(a) of Act 105 of
1997 provides that, if a court is satisfied that substantial and
compelling circumstances exist
which justify the imposition of a
lesser sentence than the sentences prescribed in section 51(2), the
court shall enter those circumstances
on the record of the
proceedings and must thereupon impose such lesser sentence.
[25] Appellant did not testify in
mitigation of sentence but his legal representative placed his
personal circumstances on record.
He was aged 49 years at the time,
had no school education, was single, had no children and lived with
his mother. Before his
arrest he earned R700 per week as a cleaner.
His legal representative also raised the fact that, at the time of
sentencing, appellant
had been in custody for 10 months.
[26] The State proved previous
convictions against appellant. On 20 March 1980 he was convicted of
rape and sentenced to corporal
punishment (he was 16 years old at the
time). On 2 May 1983 he was convicted of housebreaking and attempted
rape and sentenced
to corporal punishment on both convictions
together. On 24 June 1985 he was convicted of attempted theft and
sentenced to 6 months’
imprisonment. On 10 May 1989 he was
convicted of attempted rape and sentenced to 8 years’
imprisonment.
[27] The regional magistrate considered
appellant’s personal circumstances, the circumstances under
which the offence was
committed and his previous convictions before
concluding that there were no substantial and compelling
circumstances justifying
a lesser sentence than that prescribed by
Act 105 of 1997. He regarded appellant’s conviction on 20
March 1980 as his first
offence of rape and his conviction in the
present case as a second offence of rape. He accordingly applied s
51(2)(b)(ii) of Act
105 of 1997 and sentenced appellant to a period
of 15 years’ imprisonment.
[28] Appellant’s previous
convictions are of a serious nature. It is our view, however, as we
propose to show hereunder,
that the regional magistrate erred in his
approach to the effect of appellant’s previous convictions.
[29] The judgment of the Appellate
Division of the Supreme Court (as it was known then) in S v Zondi
1995(1) SACR 18 (A) is particularly
relevant to the present enquiry.
It is necessary to consider it in some detail.
[30] Mr Zondi was convicted in the
regional court of possessing a 7,5 mm pistol and five rounds of
ammunition in contravention of
ss 2 and 36 respectively of the Arms
and Ammunition Act 75 of 1969 (‘the 1969 Arms and Ammunition
Act’). Section 2
of the 1969 Arms and Ammunition Act provided
that no person shall have any firearm in his possession unless he
holds a licence
to possess such firearm. Section 36 of the 1969 Act
provided that no person shall be in possession of any ammunition
unless he
is in lawful possession of a firearm capable of firing that
ammunition.
[31] Mr Zondi’s previous
convictions comprised the following:
(1) On 13 December 1965 he was
convicted of (i) theft of a firearm in contravention of s 4(1) of the
Arms and Ammunition Act 28
of 1937 (‘the 1937 Arms and
Ammunition Act’), (ii) unlawful possession of a firearm in
contravention of s 23(2) of
the 1937 Arms and Ammunition Act and
(iii) unlawful possession of ammunition. He was sentenced to 18
months' imprisonment on the
three counts taken as one for purposes of
sentence.
(2) On 7 May 1973 he was convicted of
assault with intent to do grievous bodily harm with a stick. He was
sentenced to R40 or 20
days' imprisonment.
(3) On 15 July 1986 Mr Zondi was
convicted of the possession of ammunition. He was sentenced to 9
months' imprisonment conditionally
suspended for 5 years.
[32] The regional magistrate had
sentenced Mr Zondi, on both counts taken together, to 18 months
imprisonment, of which one half
was conditionally suspended. He held
that his 1965 set of convictions constituted a previous conviction
for purposes of the 1969
Arms and Ammunition Act. For that reason,
he said, a sentence of imprisonment was obligatory in terms of s
39(2) of the 1969 Arms
and Ammunition Act. We shall refer more fully
to this provision hereunder.
[33] Van den Heever JA delivered the
judgment of the Appellate Division. She considered two main issues.
The first was the effect
of the provisions of s 271A of the Criminal
Procedure Act 51 of 1977 (‘the CPA’).
[34] As the history of this section is
relevant to appellant’s sentencing, we propose to quote its
various versions in chronological
order. Section 271A was introduced
into the CPA by s 12 of Act 5 of 1991, with effect from 23 December
1991, The 1991 version
read as follows:
‘271A. Certain convictions fall
away as previous convictions after expiration of 10 years
Where a court has convicted a person of
–
(a) an offence specified in Schedule 1,
[which included rape] and –
(i) has postponed the passing of
sentence in terms of section 297(1)(a) and has discharged that person
in terms of section 297(2)
without passing sentence or has not called
upon him to appear before the court in terms of section 297(3); or
(ii) has discharged that person with a
caution or reprimand in terms of section 297(1)(c); or
(b) any other offence than that
referred to in Schedule 1, that conviction shall fall away as a
previous conviction if a period
of 10 years has elapsed after the
date of conviction of the said offence, unless during that period
such person has been convicted
of an offence specified in Schedule
1.’
[35] Section 271A of the CPA was
amended by s 6 of Act 4 of 1992 with effect from 11 March 1992. Thus
amended it read as follows:
‘Section 271A - Certain
convictions fall away as previous convictions after expiration of 10
years Where a court has convicted
a person of-
(a) an offence for which the punishment
may be a period of imprisonment exceeding six months without the
option of a fine, and-
(i) has postponed the passing of
sentence in terms of section 297 (1) (a) and has discharged that
person in terms of section 297
(2) without passing sentence or has
not called upon him to appear before the court in terms of section
297 (3); or
(ii) has discharged that person with a
caution or reprimand in terms of section 297 (1) (c); or
(b) any other offence than that for
which the punishment may be a period of imprisonment exceeding six
months without the option
of a fine,that conviction shall fall away
as a previous conviction if a period of 10 years has elapsed after
the date of conviction
of the said offence, unless during that period
such person has been convicted of an offence for which the punishment
may be a period
of imprisonment exceeding six months without the
option of a fine.’
[36] The 1992 version of s 271A of the
CPA was, with effect from 6 May 2009, replaced by the present version
(‘the 2009 version’).
It reads as follows:
‘271A certain convictions fall
away as previous convictions after expiration of 10 years
Where a court has convicted a person
of-
(a) Any offence in respect of which a
sentence of imprisonment for a period exceeding six months without
the option of a fine, may
be imposed but-
(i) Has postponed the passing of
sentence in terms of section 297 (1) (a) and has discharged that
person in terms of section 297
(2) without passing sentence or has
not called upon him or her to appear before the court in terms of
section 297 (3); or
(ii) Has discharged that person with a
caution or reprimand in terms of section 297 (1) (c); or
(b) any offence in respect of which a
sentence of imprisonment for a period not exceeding six months
without the option of a fine,
may be imposed,
that conviction shall fall away as a
previous conviction if a period of 10 years has elapsed after the
date of conviction of the
said offence, unless during that period the
person has been convicted of an offence in respect of which a
sentence of imprisonment
for a period exceeding six months without
the option of a fine, may be imposed.’
[37] Van den Heever JA held that Mr
Zondi’s 1973 conviction fell away 10 years after its
commission. His offence was not
one referred to in Schedule 1 to the
CPA. The wording of s 271A, she said, was clear. It did not only
mean that a previous conviction
was not to be taken into
consideration when sentence is imposed. Its effect is that the
previous conviction falls away, ie it
loses its validity or value, it
is undone. The amendment of s 271A in 1992, she held, did not affect
Mr Zondi’s rights which
had accrued by then.
[38] Van den Heever JA proceeded to
discuss the second main issue, namely whether Mr Zondi had to be
sentenced on the basis that
he was a second offender in respect of
the offence of the unlawful possession of a firearm. She considered
Mr Zondi’s threefold
1965 conviction. This, she said, did not
fall away as it did not qualify for that result in terms of s 271A of
the CPA as it read
at that time. It should not, however, have been
regarded as a previous conviction in terms of the provisions of
section 39(2)
of the 1969 Arms and Ammunition Act. They read as
follows:
‘(2) Any person convicted of an
offence under this Act shall … … be liable-
(a) … …
(b) In the case of-
(i) A contravention of or failure to
comply with any provision of section 2 … 18, 25, 28, 29, 35 or
36 …
… …
to a fine not exceeding R12 000 or to
imprisonment for a period not exceeding three years or to both such
fine and such imprisonment,
or, in the case of a second or subsequent
conviction for an offence referred to in this paragraph, to
imprisonment for a period
not exceeding five years;’
[39] The 1969 Arms and Ammunition Act
repealed and replaced the 1937 Arms and Ammunition Act with effect
from 1 February 1972.
Sections 4(1) and 23(2) of the latter Act (of
which Mr Zondi had been convicted in 1965) created offences which
were substantially
similar to ss 2 and 36 respectively of the 1969
Arms and Ammunition Act.
[40] Van den Heever JA pointed out,
however, that it was only in respect of offences ‘referred to
in this paragraph’
that the court’s discretion to
sentence second and subsequent offenders, was restricted to
imprisonment. She held that this
phrase in s 39(2)(b) of the 1969
Arms and Ammunition Act meant that it did not apply to second and
subsequent offenders in respect
of offences other than contraventions
of the specified provisions of the 1969 Arms and Ammunition Act.
Contraventions of the corresponding
provisions of the 1937 Arms and
Ammunition Act, even if they were of a similar nature, were therefore
not offences which triggered
the prescribed punishment of three
years’ imprisonment within the meaning of s 39(2)(b) of the
1969 Act.
[41] Mr Zondi was accordingly sentenced
as a first offender in respect of his 1965 set of offences.
Section 271A of the CPA and the present
case
[42] It is our view that the reasoning
of Van den Heever JA in S v Zondi supra is in two respects relevant
to the facts of the present
case. We first consider the effect of s
271A of the CPA.
[43] Although appellant’s 1980
conviction of rape is older than 10 years it did not in terms of the
1991 version of s 271A
fall away upon the expiry of a period of 10
years after the date of the conviction. The reasons are first that
the offence did
not fall within the ambit of s 271A(b), namely ‘any
other offence than that referred to in Schedule 1’ and secondly
that he had in any event during the period of 10 years been
‘convicted of an offence specified in Schedule 1’, namely
attempted rape. Appellant’s 1980 offence of rape also did not
fall away in terms of the 1992 or 2009 versions of s 271A
of the CPA
as he was, before the expiry of the ten year period thereafter,
convicted of attempted rape, ‘an offence in respect
of which a
sentence of imprisonment for a period exceeding six months without
the option of a fine’ could have been imposed.
Appellant’s
1983 conviction of attempted rape also did not fall away upon the
commencement of the 1991, 1992 or 2009 versions
of s 271A of the CPA
as he was convicted of attempted rape in 1989.
[44] The question whether appellant’s
1989 conviction of attempted rape has fallen away is, however, more
problematic. It
depends upon a proper interpretation of the 2009
version of paragraph (b) of s 271A of the CPA.
[45] The definition of the offences
that fall away after 10 years in terms of this paragraph differs in
two significant respects
from that of the 1992 version. The first is
that the introductory words changed from ‘any other offence
than that’
in the 1992 version to ‘any offence’ in
the 2009 version. The second is that the words ‘exceeding six
months’
in the 1992 version were replaced by the words ‘not
exceeding six months’ in the 2009 version.
[46] In terms of a literal
interpretation of the 2009 version of paragraph 271A(b), its meaning
is found in the ipsissima verba
used by the legislature. A sentence
of imprisonment for a period not exceeding six months without the
option of a fine, may, depending
upon the circumstances, be imposed
for practically any offence. The 2009 version of paragraph 271A(b)
of the CPA, compared to
the 1992 version, thus radically enlarged its
ambit to include virtually all offences. Hiemstra’s Criminal
Procedure 27-3
expresses this literal meaning of paragraph 271A(b) as
follows:
‘After the amendment by Act 65 of
2008, with effect from 6 May 2009, the category under section
271A(i)(b) - includes practically
all offences. Even for a serious
offence like murder, imprisonment of less than 6 months without the
option of a fine can be imposed’.
[47] A striking feature of the 2009
version of paragraph 271A(b) of the CPA, however, is that its wording
is clumsy and confusing,
compared to that of the previous versions.
The 1991 and 1992 versions of s 271A of the CPA drew a clear and
sensible distinction
between serious and less serious offences.
Convictions in respect of serious offences did not fall away after 10
years, convictions
in respect of less serious offences did. The
period of six months effective imprisonment defined the upper limit
of less serious
offences.
[48] In terms of the 1991 and 1992
versions of paragraph 271A(b), less serious offences were excluded
from the wider category of
all offences. That made sense. Upon a
literal interpretation of the 2009 version, however, the categories
of less serious offences
and serious offences are now defined in such
a way that both comprise all offences. This does not make sense as
there is now no
longer an exclusive category of serious or less
serious offences.
[49] A third feature of the 2009
amendment of paragraph 271A(b) of the CPA is that it rendered
paragraph 271A(a) redundant. The
1991 and 1992 versions of paragraph
271A(a) excluded certain offences from the general category of
serious offences. The probable
reason for this was that the lenient
nature of the sentences in question showed that the offender’s
personal circumstances
were such that he/she should be treated as if
his/her offence were a less serious one. The 1991 and 1992 versions
of paragraph
271A(a) were therefore consistent with the contents of
paragraph 271A(b). Paragraph 271A(a) was, however, not amended in
2009.
Upon a literal interpretation of paragraph 271A(b) all
offences now fall away after 10 years and paragraph 271A(a) thus
became
redundant.
[51] As to the first feature: The fact
that the 2009 version of paragraph 271A(b), upon a literal
interpretation thereof, radically
widened the scope of previous
convictions that fall away after ten years, is in our view not
unusual. There is precedent for such
an approach in our law. In S v
Mqwathi
1985 (4) SA 22
(T) at 25A-F Van Dijkhorst J dealt with the
legal position as at 1985. He pointed out that in terms of s 303
ter, read with the
Fifth Schedule, of the Criminal Procedure Act 56
of 1955, a previous conviction should not be taken into account in
the imposition
of sentence if it was more than 10 years old. This
was the position with respect to all offences. Van Dijkhorst J
pointed out
that the legislature did not re-enact a similar provision
in the
Criminal Procedure Act 51 of 1977
with the result that the
court then had a discretion and was not bound to the 10 year period.
It would nevertheless be a salutary
and practical starting point,
although not an inflexible yardstick, to apply the ten year period.
[52] The second and third features
discussed above, however, raise the question whether the 2009
formulation of paragraph 271A(b)
correctly reflect the legislature’s
intention. Put differently, is it not the result of a legislative
mistake? We have accordingly
considered whether a purposive
interpretation of paragraph 271A(b) might not achieve the result that
the previous regime is maintained,
namely that serious offences do
not fall away after ten years while less serious offences do.
[51] Such a result might in theory be
achieved if a suitable term could be implied in paragraph 271A(b) of
the CPA. The test for
implying a provision into a statute is,
however, quite strict. In Masetlha v President of the Republic of
South Africa and Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC) the Constitutional
Court, at para [192], formulated it as follows:
“…words cannot be read
into a statute by implication unless the implication is a necessary
one in the sense that without
it effect cannot be given to the
statute as it stands. In addition, such implication must be necessary
in order to 'realise the
ostensible legislative intention or to make
the [legislation] workable.”
[52] It is accepted, furthermore, that
the content of a statutory provision which is sought to be implied,
must be clear and certain.
See The Firs Investments (Pty) Ltd v
Johannesburg City Council
1967 (3) SA 549
(W) at 557E - G:
“Moreover, a strong factor
militating against the implication of any such limitation is the
difficulty of formulating it.
In contract a term will not be implied
where considerable uncertainty exists about its nature and scope, for
it must be precise
and obvious.... I think that the same must apply
to implying a term in a statute, for the process is the same....”
[53] We have considered whether it is
feasible to import an implied term in paragraph 271A(b) of the CPA in
order to give effect
to the assumed intention of the legislature. It
is our view, however, that it is not. The reasons, in short, are
first that we
are unable to determine what the true intention of the
legislature was and secondly that we are unable to formulate the
wording
of an implied term that would reflect such an intention.
[53] We are accordingly constrained to
give effect to a literal interpretation of paragraph 271A(b). Upon
that interpretation appellant’
s 1989
conviction of attempted
rape fell away upon the commencement of the 2009 version of
s 271A
of
the CPA on 6 May 2009. Attempted rape is an offence in respect of
which a sentence of less than six years’ imprisonment
may,
depending upon the circumstances, be imposed and appellant had not
been convicted of any offence after 1989.
[54] We wish to point that if we are
wrong in our interpretation of paragraph 271A(b) of the CPA, the same
result would be achieved
as we are in any event of the view that
appellant’
s 1989
conviction of attempted rape lost its force
through the passage of time, a topic to which we turn next.
The passage of time
[55] Apart from the effect of
s 271A
of
the CPA with respect to the present case, it is also necessary to
consider the implications of the mere passage of time with
regard to
the force of previous convictions. Appellant’s previous
convictions are 33, 30 and 24 years old. Although
section 271A
provides that certain previous convictions fall away in certain
circumstances, this does not mean that a court is bound to continue
to take such a conviction into account, whatever its age. The courts
have therefore in principle attached less weight to a previous
conviction, the longer the period that had elapsed since the date of
such conviction. See Terblanche Guide to Sentencing in South
Africa
second edition 189 and the cases cited in footnote 45, including S v
Mqwathi supra. The remarks in Hiemstra’s Criminal
Procedure
27-3, with reference to
s 271A
of the CPA, are to the same effect:
‘The usefulness of this provision
is limited. Judicial officers would in any event attach no weight to
such an old conviction’.
[56] Given the age of each of
appellant’s previous convictions, we are of the view that all
of them, including the 1989 conviction
of attempted rape, are so old
that they should not have been taken into account at all in the
sentencing of appellant.
The interpretation of
s 51(2)(b)
of Act
105 of 1997
[57] The second relevant aspect of the
judgment of Van den Heever JA in S v Zondi supra, is her
interpretation of the concept ‘second
offender’ where it
appears in s 39(2) of the 1969 Arms and Ammunition Act. It is in our
view relevant to the interpretation
of s 51(2)(b) of Act 105 of 1997
which reads as follows:
‘(2) 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;’
[58] Appellant was convicted in the
present case of the offence described in Part III of Schedule 2 as
‘Rape or compelled
rape as contemplated in
section 3
or
4
of
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act,
2007
..’ In1980, however, appellant was convicted of rape, a
common law offence, which is not mentioned in
Part III
of Schedule 2
to Act 105 of 1997. It is indeed a different offence with different
elements and it does not exist anymore. In
terms of
s 68(1)(b)
of
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007
, the common law relating to certain crimes including rape
was repealed.
[59] On the face of it appellant was
therefore a ‘first offender’ for purposes of the
application of
s 51(2)(b)
of Act 105 of 1997. We have, however,
considered whether it is not possible to imply a suitable term in
paragraph 51(2) (b) (ii)
of Act 105 of 1997, read with the offence
defined in Part III of Schedule 2 as ‘Rape or compelled rape as
contemplated in
section 3
or
4
of the
Criminal Law (Sexual Offences
and Related Matters) Amendment Act, 2007
’, in order to include
an offender such as appellant within the ambit of that paragraph.
[60] We have pointed out above,
however, that the test for implying a provision into a statute is
strict. We quoted in this regard
the test as it was formulated in
Masetlha v President of the Republic of South Africa and Another
supra para [192]. It seems to
us that the suggested implied term is
not ‘a necessary one in the sense that without it effect cannot
be given to the statute
as it stands’. In our view there is no
necessity to change the plain literal wording of
s 51(2)(b)
of Act
105 of 1997.
[61] We have also drawn attention above
to the requirement that the content of a statutory provision which is
sought to be implied
must be clear and certain. We quoted in this
regard from See The Firs Investments (Pty) Ltd v Johannesburg City
Council supra
at 557E – G.
[62] In our view ‘considerable
uncertainty’ would exist with respect the formulation of the
suggested implied term.
It would not be ‘precise and obvious’.
[63] We conclude therefore that
appellant’s sentencing was governed by the provisions of s
51(2)(b)(i), read with Part III
of Schedule 2 to Act 105 of 1907, for
which the prescribed minimum sentence is 10 years imprisonment. It
was not governed by the
provisions of s 51(2)(b)(ii) of Act 105 of
1997.
[64] We may add that if we were wrong
in our interpretation of s 51(2)(b)(ii) of Act 105 of 1997 and
appellant was correctly regarded
as a ‘second offender’,
then it seems to us that the age of appellant’s 1980 conviction
of rape should on its
own have been regarded as a substantial and
compelling circumstance justifying a lesser sentence than the minimum
of 15 years’
imprisonment.
Appellant’s actual sentence
[65] It is apparent from the regional
magistrate’s reasoning that he attached much weight to
appellant’s record of previous
convictions. In our view he
erred in doing so. Appellant’s 1980 conviction of rape should
have been disregarded for the
alternative reasons discussed above.
The first is that his sentencing was governed by the provisions of s
51(2)(b)(i) to Act 105
of 1907, for which the prescribed minimum
sentence is 10 years imprisonment. The second is that the age (more
than 33 years) of
appellant’s 1980 conviction of rape should on
its own have been regarded as a substantial and compelling
circumstance justifying
a lesser sentence of not more than 10 years’
imprisonment. In that event the difference of 5 years imprisonment
between the
periods of 15 and 10 years respectively in the two
paragraphs of s 51(2)(b), would, on its own, on logical and practical
grounds,
justify a reduction of 5 years from the prescribed minimum.
[66] A period of more than 30 years has
elapsed since appellant’s conviction of attempted rape in 1983.
It should have been
disregarded by reason of its age. Appellant’s
1989 conviction of attempted rape was more than 24 years old at the
time when
he was sentenced in the present case. If it did not fall
away in terms of s 287A of the CPA it should also have been
disregarded
because of its age.
[67] We are accordingly of the view
that appellant’s previous convictions should not have played a
role in his sentencing.
The regional magistrate should have treated
him as a de facto first offender. On that basis there are in our
opinion additional
substantial and compelling circumstances which
justify a lesser sentence than 10 years imprisonment. The first is
the period of
10 months that appellant spent in custody prior to the
imposition of his sentence. See S v Radebe
2013 (2) SACR 165
(SCA)
paragraphs [13] and [14]:
‘[13] In my view there should be
no rule of thumb in respect of the calculation of the weight to be
given to the period
spent by an accused awaiting trial.
… …
A better approach, in my view, is that
the period in detention pre-sentencing is but one of the factors that
should be taken into
account in determining whether the effective
period of imprisonment to be imposed is justified: whether it is
proportionate to
the crime committed. Such an approach would take
into account the conditions affecting the accused in detention and
the reason
for a prolonged period of detention.’
[68] The second factor is that
appellant was probably to some extent intoxicated when he committed
the offence. It is settled law
that intoxication may be regarded as
a mitigating factor if it is shown that it impaired the mental
faculties of the offender.
See S v M
1994 (2) SACR 24
(A). It
appears from the evidence that a substantial amount of alcohol was
consumed by appellant prior to the incident. In these
circumstances
it seems to me that it is a fair inference that appellant’s
responsibility was to some extent impaired as a
result of his
consumption of alcohol.
[69] It is our view that the
combination of the period spent by the appellant in custody before he
was sentenced and his intoxication
constitute substantial and
compelling circumstances which justify the imposition of a lesser
sentence than 10 years’ imprisonment.
In our opinion a period
of imprisonment of 8 years would be fair and appropriate.
[70] In the result, we grant the
following orders:
(1) Appellant’s appeal against
his conviction is dismissed. His conviction is confirmed.
(2) Appellant’s appeal against
his sentence is upheld. His sentence of 15 years’ imprisonment
is set aside and replaced
with a sentence of 8 years’
imprisonment which is backdated to 23 August 2013 in terms of
s 282
of the
Criminal Procedure Act 51 of 1977
.
A P BLIGNAULT J
R F VAN ROOYEN AJ