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[2016] ZASCA 8
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Director of Public Prosecutions, Gauteng v Mphaphama (20450/2014) [2016] ZASCA 8; 2016 (1) SACR 495 (SCA) (3 March 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 20450/2014
In
the matter between:
DIRECTOR
OF PUBLIC PROSECUTIONS,
GAUTENG APPELLANT
and
MOLEFE
JOSEPH
MPHAPHAMA RESPONDENT
Neutral
citation:
Director
of Public Prosecutions, Gauteng v Mphaphama
(20454/14)
[2016] ZASCA 8
(3 March 2016)
Coram:
Majiedt
and
Willis
JJA
and
Baartman AJA
Heard:
24 February 2016
Delivered:
3 March 2016
Summary:
Criminal Law and Procedure
– application for special leave to appeal under s 16(1)
(b)
read with
s 17(3)
of the
Superior Courts Act 10 of 2013
–
High Court having reduced sentence of the regional court from life
imprisonment to 20 years – State has no
right to appeal further
to the SCA – appeal struck from the roll.
ORDER
On
appeal from
:
Gauteng Division of
the High Court,
Pretoria
(
Khumalo
J and Mushasha AJ
sitting
as
a
court of
appeal
)
:
The
appeal is struck from the roll.
JUDGMENT
Willis
JA (Majiedt JA and Baartman AJA concurring):
[1]
This appeal is concerned with the question: whether the State
represented by the Director of Public Prosecutions (DPP) has a
right
to appeal to this court against an order of the High Court on appeal
to it from the regional court, reducing a sentence of
imprisonment
from that of life to one of 20 years.
[2]
The respondent (the accused), who was 51 years of age at the time,
was arraigned before the regional court in Springs on four
counts of
contravening s 3 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 (the Act). The counts
related to
the rape of an 11-year old girl. The accused, who enjoyed the benefit
of legal representation, pleaded not guilty. He
denied having had any
sexual relationship with the girl and professed to having no idea why
she would falsely have implicated him.
When he gave evidence in his
defence, he claimed that he was the father of the girl.
[3]
The first three counts related to incidents that occurred in 2009,
the fourth in 2011. The accused had been a family friend.
The
complainant testified through an intermediary, who was a registered
social worker. On 11 February 2013 the accused was convicted
on all
four counts and sentenced to life imprisonment. The incident relating
to count one took place at the home of the complainant
and her
mother, and those relating to counts two, three and four at the
accused’s home. The accused applied for leave to
appeal the
trial court’s conviction and sentence. This was refused by the
magistrate but leave was granted, in respect of
both conviction and
sentence, on petition to the relevant division of the High Court.
[4]
The appeal before the
Gauteng
Division of the High Court,
Pretoria
was heard by Khumalo J
and Mushasha AJ. On 25 July 2014 they dismissed the appeal on
conviction but reduced the sentence to an effective
term of 20 years’
imprisonment. During the course of his judgment, Mushasha AJ, with
whom Kumalo J concurred, said the following,
inter ali
a:
(a)
‘
It
was submitted on behalf of the appellant that…the complainant
had consented to sexual intercourse.’
(b)
‘
Regard
being had to the facts of this case I am persuaded to accept
counsel’s submissions in this regard.’
(c)
‘
The
appellant obtained easy access into the house with the co-operation
of the complainant…
(d)
‘
During
all the sexual encounters with the appellant the complainant had
always showed her unwillingness by merely closing her thighs.’
(e)
‘
There
is no evidence that complainant experienced any psychological
problems.’
(f)
‘
I
have given a full consideration of the fact that the somewhat
acquiescent conduct of the complainant was the result of the grooming
effect
.’
[5]
The high court referred to the fact that, in terms of s 57(1) of the
Act, a person under the age of 12 years is incapable of
consenting to
a sexual act but nevertheless found that the circumstances, which
included those in para 4 above, constituted ‘substantial
and
compelling circumstances, which justified a departure from the
prescribed minimum sentence of life imprisonment’ in terms
of
the
Criminal Law Amendment Act 105 of 1997
.
[6]
The DPP, who is the appellant, then petitioned this court for special
leave to appeal hereto against the reduced sentence of
the high court
in terms of
s 16(1)
(b)
read with
s 17(3)
of the
Superior
Courts Act 10 of 2013
. The basis of the petition was that the high
court had erred, as a matter of law, in having regard to the
so-called consent of
the complainant, when she was legally incapable
of giving it. This court directed that the DPP should first argue
whether this
matter was appealable and only if such preliminary issue
was decided affirmatively, could the appeal be heard on the merits.
In
parallel with her submissions relating to
s 16(1)
(b)
read
with
s 17(3)
of the
Superior Courts Act, Ms
Mahomed, counsel for the
DPP, argued further, in response to this court’s directive,
that the question was, in any event,
appealable in terms of
s 311(1)
of the CPA as ‘a question of law’. The section reads as
follows:
‘
(1)
Where
the provincial or local division on appeal, whether brought by the
attorney-general
[1]
or other
prosecutor or the person convicted, gives a decision in favour of the
person convicted on
a
question of law
,
the attorney-general or other prosecutor against whom the decision is
given may appeal to the Appellate Division of the Supreme
Court,
[2]
which shall, if it decides the matter in issue in favour of the
appellant, set aside or vary the decision appealed from and, if
the
matter was brought before the provincial or local division in terms
of –
(a)
section
309(1)
, re-instate the conviction, sentence or order of the lower
court appealed from, either in its original form or in such a
modified
form as the said Appellate Division may consider desirable;
or
(b)
section
310(2)
, give such decision or take such action as the provincial or
local division ought, in the opinion of the said Appellate Division,
to have given or taken (including any action under
section 310(5)
,
and thereupon the provisions of
section 310(4)
shall
mutatis
mutandis
apply
.’ (Emphasis
added.)
[7]
The DPP applied for condonation for the late filing of its heads of
argument. This was not opposed by the accused. That application
has
been granted. In the meantime, this court drew the attention of the
parties to the recent unanimous judgment of five judges
in this court
in
Director of Public
Prosecutions, Western Cape v Kock
,
[3]
inviting them to prepare argument accordingly.
[8]
Section 316B of the Criminal Procedure Act 51 of 1977 (CPA) provides
that:
‘
316B
Appeal by attorney-general against sentence of superior court
(1)
Subject to subsection (2), the attorney-general
[4]
may appeal to the Appellate Division
[5]
against a sentence imposed upon an accused in a criminal case in a
superior court.’ (Own footnotes inserted.)
In
Director of Public
Prosecutions v Olivier
,
[6]
Navsa JA, delivering the unanimous judgment of this court, said:
‘
This
section provides for appeals to this court from a sentence imposed by
a superior court. This does not mean a superior court
sitting as a
court of appeal. It clearly means a superior court sitting as a court
of first instance.’
[7]
Olivier
was followed in
Kock
and referred to with
approval by the Constitutional Court in
S
v Nabolisa
.
[8]
[9]
Ms Mahomed argued in response to these clear statements in
Olivier
that what was sought was not an appeal against sentence per se
but rather an appeal on a legal question, as formulated above. She
relied on
s 16(1)
(b)
of the
Superior Courts Act which
provides
that:
‘
[A]n
appeal against any decision of a Division on appeal to it, lies to
the Supreme Court of appeal upon special leave having been
granted to
the Supreme Court of Appeal;’
As
was noted in
S v Van Wyk &
another
[9]
and
Kock
,
however, this general provision had to be read in conjunction
with
s 1
of the
Superior Courts Act which
specifically defines an
appeal for the purposes of the Act as excluding ‘an appeal in a
matter regulated in terms of the
Criminal Procedure Act
. . . or in
terms of any other criminal procedural law.’
[10]
[10]
Ms Mahomed also relied on
ss 17(1)
(a)
(i) and (ii) of the
Superior Courts Act which
provide that:
‘
Leave
to appeal may only be given where the judges concerned are of the
opinion that –
(a
)
(i) the appeal would have a reasonable prospect of success; or
(ii)
there is some compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration’.
She
submitted that the judgment of the high court brought the
administration of justice into disrepute as it undermined the clear
intention of the Legislature – endorsed by this court in
S
v Malgas
[11]
– to protect children from sexual offences through the
deterrence, the extended removal from society and the display of
social opprobrium that severe sentences entail. Accordingly, so the
argument went, there was a compelling reason why the appeal
should be
heard and, correspondingly, a reasonable prospect of success of the
appeal.
[11]
In addition to
Kock
,
Mr Alberts, for the accused, relied on
S
v Mosterd,
[12]
in which it was held that sentence can never be a question of
law decided in favour of a convicted person.
[13]
Certainly, when it comes to the exercise of a judicial discretion in
favour of a convicted person in regard to sentence, that cannot
be a
question of law decided in his or her favour. The definition of
an appeal in the
Superior Courts Act, however
, overrides a
consideration of
s 311
of the CPA, in terms of the decision in
Kock
.
This has to prevail, even if Ms Mahomed’s argument that there
is indeed a question of law were to be correct.
[12]
While the approach of the high court in this matter is to be strongly
deprecated, our hands are tied. This court’s jurisdiction
is
circumscribed by the Constitution and legislation.
[14]
As was held in
Kock
,
the definition of an appeal in the
Superior Courts Act precludes
our
coming to the assistance of the DPP.
[15]
As was also pointed out in
Kock
,
the facts in
Van Wyk
were distinguishable in so far as it dealt with the rights of a
convicted person to appeal further to this court and the manner
in
which leave had to be sought from a division of the high court
sitting as a court of appeal.
[16]
As was found in
Olivier
,
the
Criminal Procedure Act does
not allow the DPP a right of appeal
from the High Court, where that court has sat as a court of
appeal.
[17]
[13]
The court is much indebted to counsel for both the DPP and the
accused for their fine, helpful and thoroughly prepared arguments.
[14]
The following order is made:
The
appeal is struck from the roll.
_________________________
N
P WILLIS
JUDGE
OF APPEAL
A
PPEARANCES:
For the
Appellant:
S Mahomed
Instructed
by:
Director of Public
Prosecutions, Pretoria
Director of Public
Prosecutions,
Bloemfontein
For the
Respondent:
H L Alberts
Instructed
by:
Justice
Centre, Pretoria
Justice Centre,
Bloemfontein
[1]
The DPP now takes
the place of the former Attorney-General.
[2]
Now the Supreme
Court of Appeal.
[3]
Director of
Public Prosecutions, Western Cape v Kock
[2015]
ZASCA 197
(1 December 2015)
.
[4]
As mentioned in fn
1 above, the DPP now takes the place of the former Attorney-General.
[5]
Now the Supreme
Court of Appeal (SCA).
[6]
Director of Public Prosecutions v
Olivier
[2006]
ZASCA 121; 2006 (1) SACR 380 (SCA).
[7]
Paragraph 15.
[8]
S v Nabolisa
[2013]
ZACC 17
;
2013 (2) SACR 221
(CC) para 81.
[9]
Van Wyk v S , Galela v S
[2014] ZASCA 152;
2015 (1) SACR 584 (SCA).
[10]
Van Wyk
(above)
para 18;
Kock
(above) para 14.
[11]
S v Malgas
[2001]
ZASCA 30
;
2001 (2) SA 1222
(SCA), especially paras 9 and 25.
[12]
S v Mosterd
1991
(2) SACR 636 (T).
[13]
At 640c-d.
[14]
S v Tonkin
[2013] ZASCA 179
;
2014 (1) SACR 583
(SCA) para 6. See also
Snyders
v De Jager
[2015]
ZASCA 137
para 8.
[15]
Paragraph 20.
[16]
Paragraphs 16 to
18.
[17]
Paragraph 15.