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[2015] ZAWCHC 114
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Gwarubana v S (A 132/2015) [2015] ZAWCHC 114 (17 August 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
CASE NO: A 132/2015
DATE: 17 AUGUST 2015
Reportable
In the matter between:
SIYABULELA
GWARUBANA
................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT: 17 August 2015
DAVIS J
Introduction
[1] Appellant was convicted of
housebreaking with the intent to commit rape and rape by the Regional
Court on 28 November 2001.
The trial was thereafter transferred to
the High Court for the purposes of sentence in terms of s 52 (1) (b)
of the Criminal Law
Amendment Act 105 of 1997 (‘the Act’).
On 20 June 2002 appellant was sentenced to life imprisonment by
Erasmus J.
[2] The appellant notified the High
Court in February 2003 that he wished to appeal against conviction
and sentence. On 15 May
2014 he was granted leave to appeal against
sentence only.
Factual Matrix
[3] Although this appeal is against
sentence only, it is relevant to examine the evidence which gave rise
to the conviction. On
13 October 1999 the victim’s mother and
her two daughters had retired for the night. At 02h00 am on 14
October 1999 they
were awoken by a knock on the window in the
bedroom. Complainant’s mother heard a man asking her to open
the door. After
asking the reason for this request as she did not
recognise the man, the man broke the window and entered the house.
When she
switched on a light, she saw that the man who had entered
the house, was the appellant. Without more, the appellant cut the
house’s
telephone wire. Her one daughter then hit the panic
button to trigger the alarm. This act afforded the victim’s
mother
the opportunity to run out of the house to her neighbours in
order to phone the police.
[4] When the police arrived they found
the accused in the act of raping the complainant. Sergeant Folding
testified that when he
entered the house, he saw the appellant lying
on top of a young woman who was in bed. He then said:
‘Ek het beskuldigde voor die Hof
bo-op die dame aangetref waar hy besig was on op-en-af bewegings op
haar the maak. Ek het
die beskuldigde gevra om af te klim van die
dame af waarop hy geweier het. Ek kon ook sien, Edelagbare dat die
beskuldigde se
penis in die slagoffer se vagina was. Toe hy nie wil
afklim nie, Edelagbare het ek hom self afgetrek van die dame af.’
[5] Shortly before the state closed its
case, a report from the clinical psychologist Ms Susan Manson was
handed into court. On
the basis of this report, the prosecutor
considered that it revealed ‘basically that the complainant is
unable to testify.
She is not a competent witness and she is also
unable to consent to sexual intercourse due to her mental
impairment.’
From the record it appeared that page 2 of the
report had not been included in and accordingly was not accessible to
the legal
representative of the appellant. The final page however of
the report which was available reads thus:
‘Ms Ayanda Somi, aged 24, is a
young woman with a history of development delay and training centre
placement who was allegedly
raped by Mr Siyabulela Gwarubana. On
interview she was found to be functioning predominantly in the range
of severe mental handicap.
Ayanda showed no understanding of
sexual matters and was found to be unable to consent to sexual
intercourse. Her inability to
provide an account of the alleged rape
and her lack of understanding of the difference between truth and
falsehood as well as the
purpose and proceedings of a trial suggest
that she will not be competent to act as a witness.’
[6] The appellant’s version was
in the form of an alibi, namely that he was at work when the crime
was committed. Hence,
he denied any involvement in the housebreaking
or rape.
[7] The court rejected the appellant’s
version and held, beyond a reasonable doubt, that it was the
appellant who had illegally
entered into the house and committed the
rape. Upon conviction the court determined that the crime of which
the appellant had
been convicted fell without the minimum sentence
legislation. The matter was transferred to the High Court for
sentence. In
sentencing the appellant to a term of life
imprisonment, Erasmus J highlighted a number of aggravating
circumstances: the victims
were women, the mother was a 57 year old
woman, her one daughter was a minor and the complainant was mentally
handicap. The attack
had been launched in the middle of the night
in their own home. Finally, there was no evidence of any form of
remorse on the part
of the appellant.
Appellant’s case on appeal
[8] Mr Calitz, who appeared on behalf
of the appellant, submitted that there were two central grounds which
justified the appeal.
In the first place, the charge sheet did not
contain any reference to the Act and, in particular, to the fact that
the mental
disability of the complainant triggered the minimum
sentence regime in terms of s 51 (1) read with Part one of Schedule 2
of the
Act. Secondly, to the extent that a psychologist’s
report had been handed in prior to the commencement of the
appellant’s
case to the effect that the complainant was
mentally disabled is defined in terms of s 1 of the Criminal Law
(Sexual Offences Related
Matters) Amendment Act 32 of 2007, the
initial report had been incomplete in that the second of the three
pages was absent from
the report which was placed into evidence. The
full report was only handed in prior to the respondent presenting
argument before
the court.
[9] These arguments necessitate an
examination of the applicable law relating to the requirements for
the compilation of the charge
sheet pursuant to the Act. In S v
Legoa
2003 (1) SACR 13
(SCA) Cameron JA (as he then was) examined the
question of whether the charge sheet should include reference to the
elements of
the specific form of the offence with which the accused
is charged; in particular, whether reference should be made expressly
to
the Act. Cameron JA found that, in developing an enhanced
jurisdiction for sentencing in respect of particular offences, the
legislature
had not created new offences. However this enhanced
penalty jurisdiction can only be applied if the evidence regarding
all the
elements of the form of the scheduled offence contained in
the Act is led before conviction. A trial court must then determine
whether all the elements are present as specified in the applicable
legislation.
[10] Turning to criminal law under the
shadow of the Constitution of Republic of South Africa Act 108 of
1996, Cameron JA found
that an accused person has the right to be
informed of the charge against him or her with sufficient detail to
answer it, albeit
that the test in this case is one of substance and
not form. See para 21 of Legoa, supra. Although he was reluctant to
set out
a general rule that a charge must in every case must recite
either the specific form of the scheduled defence of which the
accused
is charged or the facts which the State intends to prove,
Cameron JA went on to say:
‘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.’ (para 21)
[11] Writing for a full bench of this
Division, Henney J in Matthys v S (unreported decision of the Western
Cape High Court: Case
No. A 607/11) developed upon the dicta
contained in Legoa. In this case, the appellant was convicted of
rape. The relevant charge
was that he and two other accused
unlawfully and intentionally had sexual intercourse with the
complainant without her consent.
After conviction, the magistrate
referred the matter to the High Court for sentence due to the fact
that he considered himself
obliged to do so in terms of the Act. On
appeal against conviction and the sentence of life imprisonment, the
appellant argued,
inter alia, that he had been charged on one count
of rape and that the charge sheet did not specifically indicate the
prescribed
sentence in terms of the Act. Only after conviction was
he informed that the matter was to be referred to the High Court for
sentence.
[12] Henney J formulated the critical
question as ‘whether upon a vigilant examination of the
circumstances of the particular
case such an omission or failure (to
inform the accused of the scheduled offences in the charge sheet or
indictment) resulted in
the fair trial rights of the accused being
impaired’. (para 64) In answering these questions, the
learned judge noted that
effective and competent legal representation
is a weighty factor which has to be considered in the determination
of whether the
accused had the benefit of a fair trial.
[13] Henney J at para 69 then set out a
number of further circumstances which could result in a trial being
substantially unfair
to an accused:
a. if the accused is undefended and has
not been informed by the presiding officer of the relevant minimum
sentence legislation.
b. the accused is misled into believing
that the penalty provisions referred in the charge sheet will apply.
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.
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 could be applicable
are those prescribed in terms of the minimum sentence legislation.
Applying these considerations to the
facts of Matthys, supra, the court concluded that the appellant had
been legally represented,
there had been no question raised as to the
competence of his legal representative, the appellant and his legal
representative
had been given copies of the statement of the
complainant wherein she had described in detail how she had been
raped by the appellant
and his co-accused, together with how many
times she had been raped. All this information was therefore at the
disposal of appellant’s
legal representative.
[14] Accordingly the appellant and his
co-accused and attorney must have been aware that, when the
magistrate warned one of the
co-accused after the attorney had
withdrawn due to a conflict of interest, that there was a
possibility that, upon conviction,
a prescribed minimum sentence
could be imposed. There had been no protest emanating from the
appellant or his attorney nor did
either inform the court that they
were not aware of the applicability of the provisions of the Act.
Even after conviction there
had been a failure to raise any concern
in this regard. These findings have significant resemblance to the
facts in the present
case, to which I shall turn shortly. However
there is further applicable case law to consider.
[15] In S v Kolea
2013 (1) SACR 409
SCA
this question received further consideration from the Supreme Court
of Appeal. The main question in this appeal was whether,
on a charge
of rape, a sentencing court is precluded from imposing a life
sentence solely on the basis that the charge sheet referred
to s 51
(2) instead of s 51 (1) of the Act.
[16] In this case the evidence
established that the victim was raped more than once by more than one
person. Section 51 (2) of
the Act provided for the imposition of a
minimum sentence of 10 years imprisonment in respect of a first
offender while s 51 (1)
prescribed a minimum sentence of life
imprisonment. The appellant, who was charged in the Regional Court
on one count of rape
read with the provisions of s 51 (2) of the Act,
pleaded not guilty. After hearing evidence the magistrate convicted
him as charged.
In convicting the appellant, the magistrate accepted
the complainant’s evidence that she was raped more than once by
both
the appellant and the co-perpetrator who managed to evade
arrest.
[17] After conviction the magistrate
informed the appellant that, as he was liable for a sentence of life
imprisonment, which sentence
fell beyond jurisdiction of the court,
the case was transferred to the High Court in terms of s 52 of the
Act.
[18] When the case eventually went on
appeal to the Supreme Court of Appeal Mbha AJA (as he then was) posed
the key question thus:
‘Did the appellant have a fair
trial and, more specifically, was the appellant sufficiently apprised
of the charge he or she
was facing, and was he or she informed, in
good time, of any likelihood of his or her being subjected to any
enhanced punishment
in terms of the applicable legislation. This, of
necessity, entails a fact-based enquiry into the entire proceedings
of the trial.’
[19] The court held that the appellant,
who was legally represented throughout the trial, knew well of the
case that he was required
to meet. Given the nature of the charge he
was aware that the State had sought to rely on the minimum sentencing
regime which
had been created by the Act. On the substance of the
case, the fact that the charge sheet referred to s 51 (2) of the Act
as opposed
to s 51 (1) was not sufficient to justify the conclusion
that the appellant’s right to a fair trial had been
compromised.
Of significance, the court referred to a dictum of the
Constitutional Court in S v Jaipal
[2005] ZACC 1
;
2005 (4) SA 581
(CC) at para 29:
‘The right of an accused to a
fair trial requires fairness to the accused, as well as fairness to
the public as represented
by the State. It has to instil confidence
in the criminal justice system with the public, including those close
to the accused,
as well as those distressed by the audacity and
horror of crime.’
[20] In Kolea, supra the essence of the
finding was a rejection of technical objections to procedural
fairness and an investigation
of whether the court could discern any
prejudice to the appellant.
[21] In my view, a common sense
approach to the determination of prejudice holds the key to the
problems raised in these cases and,
in particular in the present
appeal. In order to determine whether an accused can be said to have
a fair trial, where the State
intends to rely upon the provisions of
the Act, this fact should pertinently be brought to the attention of
the accused at the
outset of the trial. But failure to do so is in
itself not fatal. As Cameron JA noted in Legoa the accused might
still acquire
the requisite knowledge in a manner which would not
impair his rights to a fair trial. Thus the facts of each case
require careful
attention.
Evaluation
[22] With this background it is now
possible to interrogate the key facts in this case. The appellant
was legally represented.
There is no suggestion, either on the
record or in argument, that the legal representation with which he
was provided was in any
way incompetent. Although the minimum
sentence legislation was not referred to in the charge sheet, in her
evidence in chief
the complainant’s mother referred to the fact
that the complainant was mentally handicapped.
[23] Before the appellant opened his
case, his legal representative had a copy of the psychologist’s
report. Even if page
two had not been available to the legal
representative when the report was handed up, the conclusion of the
report was available
and from this it was clear that the complainant
was found to be functioning predominantly in the range of severe
mental handicap.
While it must be accepted that this report was
handed in to justify the absence of testimony by the complainant
given her mental
handicap, the fact that her condition was revealed
to appellant’s legal representative during the course of the
trial and,
certainly before the opening of appellant’s case,
would have sufficed, absent any plausible explanation to the
contrary,
to trigger knowledge that the minimum sentence regime was
now applicable, in that mental disability of the complainant fell
within
s 51 read with part 1 of the Schedule 2 of the Act.
[24] The test as to whether in
substance the appellant’s right to a fair trial was compromised
in this case can be located
in the counterfactual which was put to Mr
Calitz. The question which was asked was what would have occurred if
the charge had
contained a reference to mental disability. Mr
Calitz submitted that the appellant would then have had an
opportunity of challenging
the mental status of the complainant; that
is by producing medical evidence to contest that she suffered from a
medical disability.
The implausibility of this counterfactual is
however revealed in the defence which was offered by the appellant.
Bluntly stated,
he contended that he was not present on the night of
the crime nor that he had entered the home of the complainant and her
mother.
He persisted with this version throughout.
[25] But even with this denial, aware
that the complainant suffered from a medical disability pursuant to
the psychological report
having been handed into court, the appellant
could have chosen to request a postponement in order to procure the
necessary psychological
evidence to support a different version of
the complainant’s mental state of mind. (para 64) That,
however, on any reasonable
inference was never sought because of his
persistence that he had not committed the crime. All of these
considerations invite
a similar application of the considerations
laid out by Henney J in Matthys, supra.
[26] In summary, if the inquiry is a
fact-based investigation into the entire proceedings of the trial and
if the ultimate test
is whether the appellant enjoyed a fair trial
based on this enquiry, which examination is a substantive as opposed
to a formalistic
process of reasoning investigation then, in this
case, it cannot be said that the trial was unfair.
The merits of the sentence
[27] Relying on S v SMM
2013 (2) SACR
292
(SCA), Mr Calitz contended that there are categories of severity
of rape and that, viewed objectively, the rape in the present case
did not fall within the category as reserved for life sentences. In
S v SMM, supra Majiedt JA emphasised that, even in the context
of
minimum sentence legislation the importance of assessing each case on
its own particular facts and circumstances and the need
for courts to
take into account proportionality can never be overlooked. (para 18)
Majiedt JA then addressed the imposition
of a life sentence:
‘Whether it is an appropriate
sentence, particularly in respect of its proportionality to the
particular circumstances of
a case, requires careful consideration.
A minimum sentence prescribed by law in which, in the circumstances
of a particular
case, would be unjustly disproportionate to the
defence, the offender and the interest of society, would justify the
imposition
of a lesser sentence than the one prescribed by law.’
(para 19)
[28] Majiedt JA found in SMM, supra
that the crime had not been the most severe form of rape. The
appellant had resisted from continuing
with the sexual act when he
realised that the child was crying. There was no evidence that the
child suffered any on going trauma
over and above the trauma that she
inevitably experienced as a result of what has happened. En
passant, it is hard to envisage
a case where a child is raped but
would not suffer ‘on going’ trauma. Admittedly, the
court In SMM had not the benefit
of the victim impact report,
notwithstanding the importance thereof. Further, the court found
that the examining doctor had not
found any serious physical injuries
and no further violence in addition to the rape had been committed.
[29] On the basis of this reasoning, Mr
Calitz pressed the absence of any evidence of any trauma outside of
the immediate trauma
of the rape. I am extremely troubled by this
submission and the legal authority which appears to support it.
Already in 1976
a most significant study by A W Burgess and L
Holmstrom “Coping Behaviour of the Rape Victim” 1976
American Journal
of Psychiatry 133 contained compelling evidence to
suggest that the overwhelming majority of rape victims exhibited
maladaptive
coping mechanisms after rape. Outward adjustment may
last for several months to many years after a rape but inevitably
this would
give way to a range of pathologies which can be captured
under the idea of trauma. See also Bessel Van der Kalk, Susan Roth,
David Pelcovitz, Susanne Sunday and Joseph Spinazzola “Disorders
of Extreme Stress: The empirical foundation of a complex
adaptation
to trauma” 2005 Journal of Traumatic Stress 389, for more
recent research.
[30] In this case, the rape was
conducted after the appellant broke into a house, in which 3 women
were sleeping. Were it not
the fact that the complainant’s
mother was conscious of the need for security and set off an alarm,
one can only wonder about
the consequences for the mother and her
other daughter. The complainant was mentally impaired; hence she
was extremely vulnerable.
The uncontested evidence of Sergeant
Folding was that the appellant did not stop raping the victim when he
entered the bedroom.
It required him to forcibly remove the
appellant from the bed in order to protect the complainant.
[31] This was a violent and barbaric
act perpetrated on a most vulnerable individual. To repeat: the
appellant broke into a
home where a mother and her two daughters were
fast asleep at 02h00 am with the sole purpose of committing rape
viewed accordingly.
I have no difficulty in concluding that this
form of rape justifies the sentence that was imposed by Erasmus J
upon the appellant
who, I might add, showed no remorse for the crime
that he had committed.
[32] Mr Calitz, in seeking to suggest
that a term of life imprisonment should only be imposed for the most
egregious form of rape,
invoked the idea of a counterfactual. In
effect what he invited the Court to do was to conceive of the worst
possible rape that
this court could imagine and then work backwards
therefrom in order to test whether the crime which was the subject
matter of this
case, fell within this category. I do not think that
this is the appropriate way to deal with the crime of rape,
particularly
in a case, such as the present, where the facts are
already as extreme as I have described them.
[33] For all of these reasons, the
appeal is dismissed and the sentence of life imprisonment imposed by
the court a quo is hereby
confirmed.
DAVIS J
DLODLO J and HENNEY J concurred