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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO.:163/04

In the matter between:

KAGISO STANLEY PLAATJIE APPELLANT

AND

THE STATE RESPONDENT

MMABATHO

FULL BENCH APPEAL

HENDRICKS J, GURA J & TLHAPI AJ

JUDGMENT

TLHAPI AJ:

INTRODUCTION

[1] The appellant was convicted of indecent assault in the District Court of Molopo and was referred to the Regional Court, sitting at Mmabatho, for sentence. He was sentenced to eight years imprisonment. His application for leave to appeal against conviction and sentence was dismissed. He petitioned this Court. Leave to appeal to the full bench against sentence only was granted.

FACTS

The facts are briefly summarized below:

[2] On the evening of the 29^th March 2004 the complainant, one S.M.Sally Motseakae, accompanied by her friend Margaret visited Moshe’s shebeen in the village of L…Logageng. Later the complainant decided to leave. She left her friend behind.

[3] On arrival at her place of residence she went to sleep. She was only clad in her panties. During the night Margaret arrived and knocked at the door. After Margaret had identified herself she unlocked the door but did not open it. She was awoken when she realized that someone was on top of her and that he had inserted his penis into her anus. She identified the appellant, a co-employee of hers, as her assailant. She awoke Margaret who was sleeping next to her in order that she should witness what the appellant was doing to her.

The appellant had penetrated her anus and had ejaculated. She sustained injuries which she described as a discomfort in her stomach. She was not able to pass faeces. She was treated at Bophelong Hospital and, as at the time of her testimony, she was still taking medication.

She did not notice the state of sobriety of the appellant. She testified that after the incident the appellant asked for forgiveness and tried to persuade her not to report the matter. He promised to pay her instead.

[4] The complainant immediately reported the incident to her grandmother who lived nearby. When the grandmother failed to give advice, she decided to report the matter to the appellant’s parents.

[5] Margaret testified that she had accompanied the complainant to Moshe’s shebeen. Earlier on they had consumed some Brutal Fruit drinks and had taken the remainder of the same drinks to the shebeen. The appellant was also at the shebeen. She confirmed that the complainant later left for her home while she remained behind consuming liquor in the company of the appellant and others. At about 03H00 she also left in the company of the appellant and one Ernest. The keys to her residence were with the complainant. They all proceeded to the complainant’s home to fetch her keys, alternatively that she would sleep over there. On their arrival she knocked and the complainant opened the door. Margaret and her companions sat for a while chatting until she fell asleep. She was awoken by the complainant calling out to her that the appellant was “raping” her. When she got up she found Ernest attempting to unbutton her trousers and at the same moment she saw the appellant jump off the complainant’s bed zipping up his trousers.

[6] Margaret confirmed that the incident was first reported to the complainant’s grandmother and thereafter to the appellant’s family. His parents were not present and the report was made to the appellant’s sisters and aunt. There was a meeting between the families and the appellant admitted in the presence of his parents to having indecently assaulted the complainant. There was a further meeting between the appellant’s parents and relatives of the complainant. The possible payment of some money to prevent the matter going to court was discussed.

[7] The appellant denied “raping” the complainant. He alleges that he was in the company of Margaret and his friend Ernest. He accompanied her to the residence of the complainant where he slept. He awoke at 06H00 the following day and went to his home. Later the complainant and Margaret approached him at his home and demanded payment or else they were going to lay a charge against him. His witness Ernest confirmed the appellant’s version.

SUBMISSIONS

The following submissions were made on behalf of the appellant:

[8] The State preferred to institute criminal proceedings in the district court. The Criminal Law Amendment Act 105 of 1997 was not applicable and the Charge Sheet does not make any reference to section 51 of this Act. No grounds were established in terms of Section 116 (1)(a),(b) and (c) of the Criminal Procedure Act, Act 51 of 1977 (“the Act”) which entitled the district magistrate to refer the matter to the regional court for sentence. There were further no previous convictions which merited punishment in excess of the jurisdiction of the said district magistrate.

[9] The Regional Magistrate erred by saying that the sexual transgression committed by the appellant amounted to rape and that it warranted the imposition of a similar sentence that would have been appropriate for a conviction of rape. The regional magistrate erred in finding that the proceedings were in accordance with justice and that the possibility could not be ruled out that the regional magistrate took into account the contents of the medical report in sentencing the appellant.

[10] The regional magistrate erred in failing to consider the fact that the offence was not pre-planned but was one which was committed on the spur of the moment while the appellant, who was under the influence of liquor, was tempted by the fact that the complainant was lying on the bed dressed only in her panties.

[11] The regional magistrate erred in over-emphasizing the seriousness of the offence, the prevalence thereof and interests of the society at the expense of the personal circumstances of the appellant and that the sentence was shockingly inappropriate.

The following submissions were made on behalf of the Respondent:

[12] The complainant left the appellant and others behind for the safety and comfort of her home. She was not party to the late night to early morning drinking spree. The complainant was enjoying the privacy of her bedroom when the offence was committed. The appellant took advantage of the situation. The complainant did not have control over the situation and did not bring it upon herself. He made a move on the complainant when she and everybody else were asleep.

[13] Sexual assault and abuse of women and children is highly prevalent and has reached alarming proportions and continues unabated in our jurisdiction.

[14] Though under the influence of liquor, the appellant was in control of his faculties.

APPLICATION OF THE LAW

[15] The appellant’s trial was conducted in the district court. After conviction the district magistrate committed the appellant for sentence before the regional court. The judgment was noted on the charge sheet but no reasons were given by the district magistrate.

[16] It is therefore not proper to speculate on the reasons why she committed the appellant to the regional court for sentence. I have to confine myself to what is noted on the charge sheet, that the appellant was committed for sentence to the regional court in terms of section 116 of the Act. Therefore the submissions by Ms Zwiegelaar, on the applicability or not, of the General Law Amendment Act 105 of 1997 has not merit. Section 116 of the Act provides:

“(1) If a magistrate’s court, after conviction . . . . . but before sentence, is of the opinion-

(a) that the offence in respect of which the accused has been convicted is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of the magistrate court;

(b) that the previous convictions of the accused are such that the offence in respect of which the accused has been convicted merits punishment in excess of the jurisdiction of a magistrate’s court;

(c) that the accused is a person referred to in Section 286A(1),the court shall stop the proceedings and commit the accused for sentence by a regional court having jurisdiction.”

I am, therefore of the view that the only provision of relevance in this instance is section 116(1)(a)

[17] Sexual intercourse per anus with a non consenting party is defined as an indecent assault see, S v M 1979 (2) SA 406 (RA). In National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) at 42 G-H, Ackerman J says:

“. . . Acts of male rape still constitute crimes at common law, whether in the form of indecent assault or assault with the intent to do grievous bodily harm. These are the criminal forms by means of which anal intercourse with a woman, without her consent, is punished.”

The Law Commission has proposed a revised definition to the offence of rape in a draft to the Sexual Offences Act to include in the definition of sexual intercourse, an act which “causes penetration by the penis of one person into the anus, mouth or vagina of another person” which is prima facie unlawful if it occurs under coercive circumstances,( John Milton: Re-defining the Crime of Rape: The Law Commission’s Proposals, SACJ 1999 VOL 12 at 364). It is therefore unfair to an accused person, when considering sentence, to even draw similarities between this kind of indecent assault and rape or to mention that it deserves a severe punishment as meted out in rape convictions. The presiding officer should therefore take care not to give the impression, especially to an unrepresented accused, that our courts view such transgression as being similar to rape. The regional magistrate misdirected himself when making such comments.

[18] It may have been difficult for the presiding officer, after conviction and in considering sentence, to ignore the fact that this category of indecent assault assails the sexual integrity of a woman and that it is an offence that should be punished befittingly.

Ackerman J, supra at 42G enunciates further:

“The competent punishments which can be imposed for such offences have not been restricted by statute and the severity of such punishments can be tailored to the severity of the offences committed.”

In this instance we are not dealing with the case of a convicted accused who is to be sentenced in respect of an indecent assault on a child under 16 years of age, involving the infliction of bodily harm (Section 51 (2)(b) read with Schedule 2 Part 3 of Act 105 of 1997).

[19] In my view, and in order to serve the interests of justice, it is important to determine the seriousness of the transgression and the harm suffered by a victim (even where she is above 16 years of age) in order to determine in which court an accused person should be tried. The complainant here is a 25 year old female and her case was tried in the district court. I say this because there are different kinds of indecent assault which for example, range from the touching of an individual’s breasts, buttocks or private parts, with the objective of committing an indecent act, to the more serious act of non-consensual anal intercourse. The submission that the offence is not of such a serious nature or magnitude, that it merits punishments in excess of the jurisdiction of the district magistrate’s court has no merit.

[20] The offence was committed on the 29^th February 2004. The appellant not only penetrated the complainant anally, he also ejaculated. She testified that she has sustained injuries. She suffered discomfort in her stomach for the whole day after the incident. She could not pass faeces. She was still taking medication when she testified on the 2 April 2004. The medical practitioner who examined her was not called to testify. The medical report describes the injuries in the anus and does not take the matter any further.

[21] Our courts are expected to be sensitive towards victims in such instances. It would not have been inappropriate for the district magistrate, during testimony or the regional magistrate when considering sentence to enquire why the complainant was still on treatment more than a month after the assault. In this age public awareness of the danger of having unprotected anal intercourse, is encouraged. This should be of great concern in our courts, if there is a possibility that a non-consenting party may be exposed to certain health risks. The court should ensure that the proper facts are placed before it during the trial and when sentence in these matters is considered.

[22] Section 116 of the Criminal Procedure Act endows a district magistrate with a discretion, which he or she must exercise after conviction and before sentence and determine whether in his or her opinion the magnitude of the offence merits punishment in excess of a district court’s jurisdiction.

In S v Peter 1989 (3) SA 649 (CkAD) at 653E and at 653H Galgut JA says:

“The Legislature has provided in s 116 adequate procedures to ensure that an accused, if convicted, is dealt with in a court having the necessary jurisdiction to sentence him.”

Section 92 of the Magistrate’s Court Act 32 of 1994, provides for the limits of sentencing jurisdiction, by way of imprisonment. In the district court a sentence of imprisonment may not exceed 3 years. In the regional court it may not exceed 15 years. The fact that the district court’s jurisdiction is limited to three years does not mean that the court is limited in the consideration of an appropriate term of imprisonment. Section 116(1)(a) provides for the exercise of the courts discretion in deserving cases.

[23] The main purpose of punishment is deterrence, prevention, rehabilitation or retribution. In considering sentence the magistrate is obliged to consider “the triad consisting of the crime, the offender and the interest of the community” S v Zinn 1969 (2) SA 537 (A) at 540G. This should be the case even where the magistrate in the district court commits a convicted person to the regional court for sentence. Reasons should be given why the district court believes that the accused should be given a sentence beyond its jurisdiction.

[24] In S v Martin 1996 (1) SACR 172 (W) at 176 A-C Flemming DJP opined:

“The court must take command of all directions of strain on the decision about punishment. Neither the call for true punishment . . . . . nor the cry for understanding must be given undue weight. The interests of the community require that the Court should be strict enough to ensure that the objects of punishments are adequately furthered. Those objects include that it is signalled clearly that crime will be effectively punished. But the concern of public interest to some extent coincides with that of the accused. Society has a real and distinct interest therein that an accused should be free where the requirements of due punishment do not justify a curtailment of freedom. Also that the accused be brought onto a non-criminal track. It is in the public interest that punishment be meted out fairly and without that excessiveness which marks it as being merciless or unacceptably unfair.”

This court will interfere with the sentence meted out by the district court, where it is found that the magistrate misdirected herself and failed to exercise her discretion judicially and where the regional court sentenced the appellant to a term of imprisonment for a period which was out of proportion to the gravity of the offence, S v Malgas 2001 (1) SACR (SCA) .

[25] Both magistrates failed to elicit sufficient information from the complainant why she was still receiving treatment more than a month after the assault. This may have assisted the court in balancing the personal circumstances of the appellant as against, the serious offence of indecent assault and the interests of society.

[26] There is merit in the submission that the medical report should not be considered for purposes of sentence because the contents thereof were not put to appellant for purpose of admission or not. He was not advised of the meaning and import of the report; S v Nkhumeleni 1986 (3) SA 103 (VSC)106B and 197B-E.

[27] A good guideline to sentencing in such matters, in my view, is to be found in S v McMillan 2003 (1) SACR 27 (SCA). The appellant in this matter had pleaded guilty to five counts of indecent assault on three young boys. The complainants were not sodomized or physically injured and the appellant was sentenced in the court a quo to a term of imprisonment for ten years which was replaced with five years imprisonment on appeal.

At 29F-I Brand JA held that:

“In the event that the spotlight during the determination of a suitable punishment was limited to what was in the appellant’s best interests, correctional supervision was clearly the most appropriate sentence. It was also equally clear that such a narrow approach was not available to the sentencer. He had to widen his focus to include the other considerations which were present during sentencing . . . . . Another relevant consideration was the seriousness of the crime for which the appellant was convicted. When these considerations were taken into account, the trial court could not be faulted for taking the view that direct imprisonment was the most appropriate sentence . . . . . The crimes for which the appellant had been convicted were undeniably serious. It was expected of the courts, through the sentences they imposed, firstly, to reflect society’s resentment and repugnance for the present type of conduct and, secondly, insofar as it was possible by sentencing, to prevent the recurrence thereof, either by the particular offender or by others.”

In the same case, at 30A-B, it was held that sentences in similar cases were merely guidelines and not binding on the sentencer and that the court had to be seen to be fair and consistent in meting out justice. In my view and having regard to the above, the district magistrate can therefore not be faulted for believing that this was an offence which deserved a sentence exceeding the jurisdiction of her court. I am of the view that she exercised her discretion judicially.

[28] Now in reviewing the issue of sentence in this matter, I find that the regional magistrate, in meting out sentence, considered the personal circumstances of the appellant. However, I gain the impression that these were overshadowed by the comments mentioned above, which I found to have been a misdirection.

[29] The appellant is a twenty-two year old first offender, who was gainfully employed. He is the father of two minor children whom he supported. He took care of his blind father. He was under the influence of liquor at the time when the incident occurred. On the other hand this court should also not loose sight of the fact that the offence was committed by the appellant while the complainant was asleep in the privacy of her home and that she was not among those who enjoyed liquor for the night till early morning. Though the appellant was intoxicated he was in control of his faculties. In view of the above therefore, there is no merit in the argument that his intoxication and the fact that the complainant was clad only in her panties played a role.

[30] I have alluded to the reasons why this type of indecent assault should be viewed as serious by our courts. However, the regional magistrate misdirected himself with regard to the term of imprisonment. I am of the view that the sentence of eight years imposed by the court a quo is too severe. A sentence of four years would be appropriate.

Consequently I make the following order:

The sentence of eight years imprisonment is set aside and is replaced with a sentence of four years imprisonment. The sentence is to run from 28 May 2004.

_______________

V V TLHAPI

ACTING JUDGE OF THE HIGH COURT

I agree

________________

R D HENDRICKS

JUDGE OF THE HIGH COURT

I agree

________________

SAMKELO GURA

JUDGE OF THE HIGH COURT

Appearances

Counsel for the Appellant : Adv C J Zwiegelaar

Counsel for the Respondent : Adv U Mokone

Attorneys for the Appellant : Herman Scholtz

Date of Hearing : 9 September 2005

Date of Judgment : 24 NOVEMBER 2005

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