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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 NORTH WEST HIGH COURT

MAHIKENG

CA18/2015

DATE:30 JULY 2015

In the matter between:

TSHIDI ELIAS MAGASA.......................................................................................................Appellant

And

THE STATE............................................................................................................................Respondent

CRIMINAL APPEAL

GURA J, KGOELE J

DATE OF HEARING : 15 MAY 2015

DATE OF JUDGMENT: 30 July 2015

FOR THE APPELLANT : Adv. T. Gongxeka

FOR THE RESPONDENT : Adv. B.T. Chulu

JUDGMENT

KGOELE J:

A. INTRODUCTION

[1] The appellant stood trial at Mogwase Regional Court facing two counts of Rape. He was subsequently convicted on both counts and sentenced to life imprisonment. He now appeals against both conviction and sentence. The application was accompanied by an application for the late filing of the appeal and it was granted by this Court.

B. SUMMARY OF THE EVIDENCE

[2] The alleged rape in the first count took place on the 17th July 2008. The complainant, who was at that time 7 years testified that at the time of the incident she was staying with her grandmother and the appellant. She said that on the day in question as she arrived from school, appellant dragged her by the hand to the bedroom of her grandmother, undressed her and had sexual intercourse with her. The grandmother had at that time gone to the shop to buy some mealie-meal and sorghum beer. She reported to the grandmother when she returned from the shop in the presence of the appellant, but the appellant denied the allegations. The grandmother promised to report to the police. It later emerged during the trial that she did not.

[3] The second sexual encounter took place on the 18th November 2008. According to the complainant the appellant was during this time no longer staying with her grandmother because he was already arrested in regard to the first Rape encounter. The complainant testified that the appellant on this occasion came and fetched her from school. As they were walking he was holding her by the hand and they proceeded to where he was staying at their neighbours. There was no one there and the appellant had sexual intercourse with her. The complainant’s evidence is that on both Rape encounters she cried as it was painful, and the appellant put his hand on her mouth so that she could not cry loud. She also testified that the appellant promised her to shoot her if she tells anybody.

[4] The mother of the complainant testified and confirmed that during the first sexual encounter the complainant was staying with the grandmother and not with her. The appellant was also staying with them as he had a love relationship with the complainant’s grandmother. It appears that after the complainant reported the matter to the grandmother, the grandmother did not also report to the complainant’s mother. Her testimony is that on the 21st July 2008, some four days after the first rape encounter, she went to them (grandmother, complainant and appellant) as part of her normal routine check-up for her child. Upon arrival the grandmother told her that the complainant was not well, she was complaining of stomach pains. She then took her to the clinic. After examination at the clinic the nurses reported to her that it seems that the complainant was sexually assaulted. It was only at that time in front of the nurses that the complainant made a report to them about how she was raped. From the clinic she went to report to the police. She thereafter took complainant to go and stay with her.

[5] The second sexual encounter in November was reported to her by the complainant herself a day after the incident. It happened that when she was bathing the complainant, she realised that there was some blood stains in the cradle of her panty. When asking her why the panty was like that, she then reported to her about the second rape encounter.

[6] The third witness was Dr Ogun Base who testified and handed two J88 completed by Dr Simokho and Dr Malikhutu who were working at Moses Kotane Hospital. The report by Dr Malikhutu dated 22 July 2008 indicated that there was blood oozing, her hymen was not visualised, there were some abrasions on the Posterior Fourchette and further that the complainant was in pain during the examination. The doctor concluded that there is a possibility of penetration.

[7] The second medical report by Dr Simokho showed a panty full of blood. Conclusions were that there was no specimen taken as the child had already taken a bath. The vagina was bleeding, there was a discharge which was having a foul smell with bleeding/brownish material.

[8] The appellant’s testimony is to the effect that he was staying during that time at his place where he was a tenant and sometimes at the complainant’s grandmother’s place as she was his girlfriend. He said on the 17th July 2008 he was at the funeral of his cousin. He was there from Monday until the completion of the funeral on Saturday. During that time he only met his girlfriend at the funeral only. He denied having raped the complainant. As far as the second rape encounter of the 18th of November 2008 is concerned, he testified that he did not have sexual intercourse with the complainant and that the reason why he is being falsely implicated is that the mother of the complainant did not approve of his relationship with the grandmother of the complainant. He further indicated that in November 2008 he was no longer in love with the grandmother of the complainant and was staying alone ever since his arrest in connection with the first incident. He said that after his arrest he was released on bail and did not communicate with any of them and could not have raped the complainant because he was released on bail. According to him he knew that complainant had stomach problems at some stage because he brought tripe from the funeral which caused her to mess herself.

[9] The appellant called B……. R……… who testified that the appellant is his relative. He said that the appellant during July used to come to the funeral in the morning from about 07h00 and would leave at about 18h00 or 19h00. Further that although he did not keep observation of the appellant’s movement, appellant would not go or leave the funeral for more than an hour but does not know whether the appellant was at some times going home or not. The following week after the funeral had passed, he learned that the appellant was arrested.

C. AD CONVICTION

[10] Mr Gongxeka on behalf of the appellant submitted that the trial Court erred in granting the application by the State in terms of Section 170A of the Criminal Procedure Act 51 of 1977 (CPA) merely because same was not opposed by the defence. He argued that the Court clearly abdicated its duty to conduct an enquiry in terms of this Section. He referred to a case of S v Booi and Another 2005 (1) SACR 599 (B) as a basis for this argument.

[11] Paragraphs 14 and 15 of the Booi matter referred to above are couched as follows;-

“[14] In S v Stefaans 1999 (1) SACR 182 (C), the Court laid down guidelines which a court faced with an application for the invocation of the provisions of s 170A should consider. The hampering of effective cross-examination is one of them. The Court also decided that s 170A (1) may be readily invoked when the application to use an intermediary is not opposed. I disagree with the decision that the attitude of the accused's counsel, which may be misguided, should, so to speak, be decisive.

[15] It is the responsibility of the presiding judicial officer to ensure that sufficient facts relating to the factors mentioned above, upon which the application may be meaningfully considered, are placed before him/her. This should be so even if the accused is legally represented and there is no opposition to the application. Section 170A (1) can only find application where a witness, under the age of 18 years, would be exposed to 'undue mental stress or suffering'. Whether or not the witness would be so exposed, does not depend on the co-operation of the accused's counsel or the lack thereof. It depends on a consideration of the above and similar factors”. [My emphasis]

[12] It is clear that the appellant’s legal representative only used paragraph 14 of the decision in the Booi matter above to support his argument. In my view, paragraph 14 qualifies and clarifies paragraph 15 and it is the most important one to decide the issue before this Court. In casu, the Prosecutor placed facts necessary which the Court should consider as a basis for the application. Those facts are embodied on page 4 of the record of proceedings lines 1 – 14. It is furthermore clear that the presiding officer considered those facts in this matter and granted the ruling / application on the strength of these facts and not only because it was not opposed by the legal representative of the appellant at that time. This is also borne by its remarks found on page 5 lines 1-10 of the proceedings. I am thus satisfied that the requirements for using an intermediary in this case were considered and met.

[13] The second ground of Appeal by the appellant is that the trial Court committed a misdirection in not properly admonishing the child witness prior to her testimony. According to the appellant, the child witness was not admonished to speak the truth as per the prescripts of Section 164 (1) of the CPA and furthermore, the inquiry held by the trial Court fell too short of meeting the requirement of this Section. In addition, the argument of the appellant continued as follows, the Trial Court did not even pronounce that it was satisfied that the child understood what it means to tell the truth or even the difference between the truth and lies.

[14] It is trite law that whether or not the child has the ability to distinguish between the truth and a lie is a factual issue which the judicial officer must adjudicate upon. The examination of the child must be such that the judicial officer can make a positive finding that the child has sufficient intelligence to appreciate the distinction between right and wrong, truth and falsehood and to recognize the dangers of saying what is not true. No hard and fast rule can be laid down and each case must depend upon its own circumstances. In casu, the presiding officer in my view conducted a sufficient enquiry to establish whether the child can distinguish between right and wrong and or between a truth and a lie. The problem with the appellant’s legal representative is that he did not quote the whole inquiry held by the presiding officer but selectively choose the lines that will suite his argument. The whole inquiry was couched as follows:-

“I ask the prosecution to proceed with his case? ….. Yes I am ready your worship.

Okay Mr Prosecutor?

PROSECUTOR: Thank you your worship. Your honour I will therefore start with K…….. M……. the victim or complainant to be called your worship.

COURT: Is K…… M……….. with you there?

INTERMEDIARY: Yes she is

COURT: Can you please ask her to give me her names.

WITNESS: K……….

COURT: Her surname?

WITNESS: K……… M……… your worship.

COURT: Tell me K……… are you attending school?

WITNESS: Yes I attend school your worship.

COURT: In what grade are you?

WITNESS: I am doing grade 2.

COURT: Do you know the name of your principal?

WITNESS: No your worship.

COURT: And the name of your teacher?

WITNESS: Yes I do know her.

COURT: What are his or her names?

WITNESS: Mistress T………..

COURT: Okay do you attend church at home K………?

WITNESS: Yes we attend church your worship.

COURT: To which denomination does your family belong?

WITNESS: Roman Catholic Church your worship.

COURT: I can see you are …. What is the colour of the top you are wearing?

WITNESS: It is red your worship.

COURT: Now if someone says that you are clothed in a black jersey will he be telling the truth?

WITNESS: No your worship.

COURT: Tell me at school and in your church what are you taught to do or what is the main thing which teachers and the preacher wants you to do?

INTERMEDIARY: May I get the question again your worship?

COURT: Okay I will just make it short as school what are you encouraged to do by your teachers?

WITNESS: We are taught Tswana, numeracy and life skills subjects, your worship.

COURT: Are you encouraged to lie when you are at school?

WITNESS: No your worship.

COURT: What do teachers say about children who do not tell the truth?

WITNESS: I do not know your worship.

COURT: Okay in your church what are you encouraged to do?

WITNESS: I do not know.

COURT: Are you aware that you are in a Court of Law?

WITNESS: Yes I do.

COURT: In the Court of Law all what is wanted from a person who is testifying is to tell the truth do you understand?

WITNESS: I understand your worship.

COURT: Alright do you promise to tell us the truth in the court room?

WITNESS: Yes I promise your worship

COURT: Alright you should not tell us something you do not know or something you heard from someone but it should be that which you know or that which have happened do you understand?

WITNESS: Yes I understand.

COURT: Do you promise that?

WITNESS: Yes I promise that your worship?

K………… M………. (child witness admonished)

COURT: I nearly forgot , tell me how old are you? …..Yes I know

How old are you? …….. I am eight years old your worship

Do you perhaps know your date of birth? ….. I do not know my date of birth.

Okay thank you Mr Prosecutor you may proceed with her evidence.”

All of the above are indicative of the fact that the trial Court was conducting a competency inquiry to determine whether she can distinguish between right and wrong.

[15] In as far as the oath inquiry and admonishing thereof are concerned, in S v B 2003 (1) SACR 52 (SCA) the Court held:-

“that it was clear that s 164 required a finding that a person did not understand the nature and import of the oath or the affirmation due to ignorance arising from youth, defective education or other cause. The finding by the Court a quo that the fact that a finding was required necessarily implied that an investigation had to precede the finding was too narrow an interpretation of the section. The section did not expressly require that an investigation be held and an investigation was not required in all circumstances in order to make such a finding. For example, it could happen that when an attempt is made to administer the oath or to obtain the affirmation it came to light that the person involved did not understand the nature and import of the oath or the affirmation. The mere youthfulness of a child could justify such a finding. Nothing was required more than that the presiding judicial officer had to form an opinion that the witness did not understand the nature and import of the oath or the affirmation due to ignorance arising from youth, defective education or other cause. Although preferred, a formally noted finding was not required. (Paragraph [15] at 63 A-E)”

S v B’s decision was later confirmed in the case of DPP Kwa-Zulu Natal v Mekka 2003 (2) SACR 1 (SCA).

[16] In casu, the child was 8 years old and the Court admonished her. It was clear that the admonishment flowed from the trial Court’s conviction that because of her youthful age, she would not understand the nature and importance of the oath. The record is clear in this regard that she was admonished, which was strengthened by the fact that she was requested to speak the truth and she promised to do exactly that. I am satisfied that the record of the proceedings demonstrated unequivocally that the trial Court was satisfied that the complainant comprehended the difference between truth and falsehood, and it was for this reason that her admonishment that she speak the truth was in my view sufficient to render her evidence admissible. To borrow from the remarks in S v B, nothing was required more than the presiding officer to form an opinion that the witness did not understand the nature and import of the oath or the affirmation due to ignorance arising from youth, defective education or other cause. Although preferred, a formally noted finding was not required.

[17] The third ground of the appellant’s Appeal is to the effect that the evidence of the child witness did not prove the offence of Rape, that is, the act of sexual penetration against the appellant in terms of Section 3 of Act 32 of 2007 (The Act). The basis for this argument stems from the following responses of the complainant which according to the appellant is not adequate:-

“ At page 10 lines 10-11

Okay after taking you what happened tell us?.... He undressed me and undressed himself and inserted his penis in me.

At page 10 17-20

PROSECUTOR: Yes he undressed you and penetrated you what happened there?

……I do not know

Okay and where did he penetrate you exactly where? ….. He inserted it in my vagina.

On the second count of Rape her evidence is as follows at:-

Page 12 lines 17-20

Okay as you were with T…….. the granny was at the shop now this is very important to tell the Court what happened at that time? …. T……… dragged me I tried to call out he closed my mouth took me to the house undressed me undressed himself and inserted his penis in me.

[18] I fail to understand this submission by the appellant’s legal representative. Firstly, in terms of the Common Law, the offence of Rape consist in a male having unlawful and intentional sexual `intercourse with a female without her consent. See: Snyman in his Criminal Law 4th Edition at page 445. From time in memorial cases like S v Molefe 1969 (2) PH H213 (Bot) and S v Giles 1926 WLD 211, 212 had decided that it is not necessary that the intercourse be completed, but the slightest act of penetration is sufficient. It is also immaterial whether semen was emitted or not. The same applies to a Rape for the purposes of Section 3 of the Act. The following definitions in the Act support this view:-

• “genital organs” includes the whole or part of the male and female organs, and further includes surgically constructed or reconstructed genital organs;

• “sexual act” means an act of sexual penetration or an act of sexual violation;

• “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 organ, 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;

(c) The genital organs of an animal into or beyond the mouth of another person, and “sexually penetrates” has a corresponding meaning;”

[19] The appellant’s other grounds of Appeal are that the trial Court committed a misdirection in not approaching the evidence of the child witness with caution when it should have done so. The child witness was a single witness to the alleged Rape and she was very young when the offences were committed. Mr Gongxeka’s submission is that there is nowhere on the record where it shows that the trial Court was alive to the fact that the evidence of the child was that of a single witness. He further submitted that in convicting the appellant the trial Court erred in failing to properly analyse the contradictions inherent in the State’s case.

[20] These two grounds can be dealt with together as they relate to the proper analysis of the evidence as a whole by the trial Court.

[21] A cautionary rule is a rule of practice (judge-made rule) in terms of which the factual adjudicator must warn himself to be cautious in evaluating evidence which practice has shown to require circumspection. See: Schmidt 111, LAWSA 330, Ferreira 567, S v M 1992 (2) SACR 188 (W) 191A-B.

[22] After all, cautionary rules are no more than guidelines in the evaluation of evidence. See: S v J 1966 (1) SA 88 (LA) 89F-H and S v Snyman 1968 (2) SA 582 (A) 585H where the Court also remarked:-

“…….. the exercise of caution should not be allowed to displace the exercise of common sense”

See: also Hoffman and Zeffert “The Law of Evidence” at page 572 et seq.

[23] It is more important to correctly apply the cautionary rule than to merely be able to identify it. Magistrates are warned by the Appellate Division not to pay mere lip-service to cautionary rules. Compliance with the cautionary rule must appear from the manner of evaluation of the evidence. Proper evaluation of the evidence may indicate that a cautionary rule was considered, even though the rule was not identified by name. See: S v Solani 1987 (4) SA 203 (NC) and especially S v Francis 1991 (1) SACR 198 (A). See also S v F 1989 (3) SA 847 (A)

[24] I am of the view that these submissions by the appellant do not have merit as well. Although the trial Court did not specifically mention that the cautionary rules are applicable to the evidence of the child because she was a single witness, the record of proceedings reveals that it was alive to the cautionary rules applicable in analysing the evidence. This is borne out by the fact that it used corroboration as an aid to overcome the cautionary rule that was applicable. The trial Court remarked emphatically that her evidence of Rape on the two counts was materially corroborated by the reports the mother received together with, to use its own words: “independent evidence of the medical reports from the Doctors. Sight should not be lost of the fact that most of the evidence of the complainant was common cause and the only issue which the trial Court had to consider was whether there was sexual intercourse that took place in both incidents. It is further clear that the trial Court also dealt comprehensively with the contradictions that were there and found that they were not material, which finding cannot in my view be faulted. The trial Court further dealt with the probabilities and improbabilities of both versions thoroughly and gave cogent reasons for accepting and rejecting same. In my view, the trial Court’s findings in this regard are sound and there is no misdirection that can be seen from the proceedings when taking into consideration the facts of this case.

[25] The following are considerations that also add some woes to the version of the appellant:- The appellant testified that the complainant’s mother did not like him, the reason was that he was from a poor family. However, he also testified that he was not the only person who had a love relationship with the complainant’s grandmother. According to him, the complainant’s mother also did not like the other boyfriends as well. In my view, it is suprising that so far he is the only one against whom a case of Rape was opened, not only once but twice. The appellant testified that his relationship with the complainant’s grandmother ended in July after he was released on bail, and yet he maintains that a false case was made against him. A question is why would the complainant’s mother proceed with the second case if at all he did not rape the complainant in November as by then the relationship had ended? The appellant testified that he was with the grandmother of the complainant when the July incident occurred, but the grandmother was not called by him to corroborate his version. In my view, the conviction by the trial Court cannot be interfered with.

D. AD SENTENCE

[26] The appellant’s counsel submitted that the trial Court committed a misdirection in sentencing the appellant to Life Imprisonment when the charge sheet did not refer to the provisions of Section 51(1) of Act 105 of 1997 (the Criminal Law Amendment Act) and the appellant was also not warned of the applicability of same. The charge sheet referred to Rape read with the provisions of Section 51 and Schedule 2 of the Criminal Law Amendment Act, as amended.

[27] Counsel for the appellant further submitted that the trial Court committed a further misdirection in stating that what was required in order to ward off the prescribed minimum sentences in terms of the Criminal Law Amendment Act 105 of 1997 were exceptional and compelling circumstances.

[28] From the record of proceedings it is clear that the charge sheet in the first place did not mention whether the applicable minimum provision was Section 51(1) or 51(2). This distinction is important because the two sub-sections do not carry the same prescribed term of imprisonment. Secondly, the charge sheet did not mention which part of Schedule 2 was the State requesting the trial Court to rely upon. Schedule 2 consists of more than one part and the distinction of these various parts is also important. Besides imprisonment for life, the Criminal Law Amendment Act also provides for other prescribed sentences for other crimes and offences.

[29] In S v Legoa 2003 (1) SACR 13 (SCA) the Court stated:-

‘[20] Under the common law it was therefore “desirable” that the charge-sheet should set out the facts the State intended to prove in order to bring the accused within an enhanced sentencing jurisdiction. … But under the constitutional dispensation it can certainly be no less desirable than under the common law that the facts the State intends to prove to increase sentencing jurisdiction under the 1997 statute should be clearly set out in the charge-sheet.’

[30] In S v Ndhlovu 2003 (1) SACR 331 (SCA) the Court held in para 12 that:

‘[12]… where the State intends to rely upon the sentencing regime created by the Act a fair trial will generally demand that its intention pertinently be brought to the attention of the accused at the outset of the trial, if not in the charge-sheet then in some other form, so that the accused is placed in a position to appreciate properly in good time the charge that he faces as well as its possible consequences.’

[31] In S v Makatu 2006 (2) SACR 582 (SCA) the Court re-iterated its view that:

‘[7] As a general rule, where the State charges an accused with an offence governed by s 51(1) of the Act, such as premeditated murder, it should state this in the indictment. This rule is clearly neither absolute nor inflexible. However, an accused faced with life imprisonment - the most serious sentence that can be imposed - must from the outset know what the implications and consequences of the charge are. Such knowledge inevitably dictates decisions made by an accused, such as whether to conduct his or her own defence; whether to apply for legal aid; whether to testify; what witnesses to call; and any other factor that may affect his or her right to a fair trial….’

[32] In S v Langa 2010 (2) SACR 289 (KZP) the majority judgment provided that:

‘[27]…….I am therefore of the view that, for a trial court to apply a sentencing regime of which the accused has not had adequate and timeous knowledge, qualifies, par excellence, as a material misdirection. In my view, therefore, the consequence of a trial court applying the provisions of the Act, in a situation where the requisite knowledge was lacking, amounts to a misdirection, warranting the setting-aside of the sentence and fresh adjudication of an appropriate sentence.’

[33] But in a recent decision of Ndlovu v The State (204/2014) [2014] ZASCA 149 (26 September 2014) the Court made the following observation where a charge sheet refers to the wrong provisions:-

‘[10] In S v Kolea the issue on appeal was whether a sentencing court was precluded from imposing a life sentence upon conviction of rape where the charge-sheet referred to the incorrect provision of the Act, despite the jurisdictional facts establishing that the rape fell within the ambit of cases for which life imprisonment was the applicable minimum sentence having been proved. This court declined to approve the ruling in Mashinini, finding that the majority had misread the provisions of s 51(2) in that a minimum sentence is exactly that; a prescribed minimum, and where the evidence establishes that a more onerous sentence is justified, the imposition of such does not constitute an irregularity that implicates fair trial rights. Mbha AJA, writing for the court, stated:

“The term of 10 years imprisonment referred to therein is the minimum sentence that can be imposed. This means that any sentence in excess of 10 years' imprisonment, and possibly even life imprisonment, could be imposed by a court having jurisdiction to do so. Furthermore, the fact, that a statute provides for an increased sentence with reference to a particular type of offence when committed under particular circumstances, does not mean that a different offence has been created thereby.

The fact, that the Act specifies penalties in respect of certain offences (in this case rape, where more than one person raped the victim), does not in any way mean that a new type of offence has been created. Rape remains rape, but the Act provides for a more severe sanction where, for example, the victim has been raped more than once or by more than one person.‟

[11] This court concluded that the fact that the charge-sheet had a defect which was never rectified did not of its own render the proceedings invalid. Mbha AJA confirmed that the test is always whether or not the accused had suffered any prejudice. Furthermore, Mbha AJA noted that the appellant had been sufficiently warned of the charge he faced by virtue of the reference to the minimum sentencing legislation in his charge sheet, and thus the required standard of “sufficient detail‟ contained in s 35(3)(a) of the Constitution was met, despite the incorrect provision being referred to in the charge-sheet. In addition, the court found that the appellant was convicted on the evidence placed before the court and “[i]t has not been demonstrated that the appellant would have acted differently, had the mistake not been made in the charge sheet‟. This court dismissed the appeal against sentence and the sentence of life imprisonment was confirmed.

[12] In this matter, it was brought to the attention of the appellant at the outset of the trial that the state intended to rely on the minimum sentencing regime created by the Act, albeit that the incorrect section of the Act was referred to. As has already been mentioned, the appellant was advised that if convicted, he faced the possible imposition of a minimum sentence of 15 years‟ imprisonment. The facts of this matter are closely akin to those of Mashinini and Kolea. The principle emerging from Kolea is that the imposition of a sentence of life imprisonment in these circumstances will not in itself result in a failure of justice which vitiates the sentence.’

See also: Machongo v S (20344/14) [2014] ZASCA 179 (2 November 2014) at para 10, where the Court said that the failure to forewarn the accused is an irregularity that may result in an unfair trial in respect of sentence.

[34] In casu there are reasons that militates against the proposition that appellant did not receive a fair trial. Firstly, the charge sheet indicates that the complainant was 7 years of age at the time of the incident. Secondly, the evidence right through the trial was that complainant was 7 years and it cannot be said that the appellant was not aware that she was still young as he stayed with her at some stage. Thirdly, the appellant was represented since the commencement of the trial. The following extracts from the record are remarks from the legal representative of the appellant which are indicative of the fact that the legal representative was aware at all the time that appellant was facing life imprisonment.

“Your worship I wish to briefly address the Court on the sentences that the Court, the legislature prescribes or prescribed for these kinds of offences. I submit your worship that that the legislature has prescribed a sentence of life imprisonment in the event that a person has been found guilty of an offence similar to this one. In doing that your worship I wish to borrow the words in the case of State v GN it is a 2010 decision on page 97 South African Criminal Law Reports in the North Transvaal Provincial Division or North Gauteng your worship North Gauteng Provincial Division in Pretoria and they said your worship that life imprisonment is the ultimate penalty that can be imposed on any offender in our country in other words it is the last sentence that can be imposed on any offender who has committed an offence however serious it may be whether a person may kill ten people he will get life imprisonment whether you can rape so many people and so many times you will still get life imprisonment”.

[35] Lastly, the following remarks are further indicative of the fact that the legal representative was also aware of his duty towards his client”-

“Your worship if I may proceed further your worship I have abrased the accused person with regard to the provisions of Section 50 of the Sexual Offences and Related Matters Act that his name may be included in the register of sexual offenders and he understood such your worship and did not have an objection towards same your worship not that he would have a choice anyway because that is what the legislature prescribes. I have also taken up the provisions of Section 103 of the Firearms Control Act with the accused person and he instructed me your worship that he does not intend to possess a firearm not does he have an objection if he may be declared unfit to possess same”.

[36] Despite the finding that I made in paragraphs 33 and 34 above regarding the first misdirection that the trial Court committed, I find that the second misdirection allegedly committed by the trial Court carries more weight to entitle this Court to interfere with the sentence imposed by the trial Court and to consider the sentence afresh.

[37] In S v Malgas 2001 (1) SACR 469 (SCA), the Court considered whether equating the test for substantial and compelling circumstances with exceptional circumstances was correct. The Court stated that:

‘[10] To the extent therefore that there are dicta in the previously decided cases that suggest that there are such factors which fall to be eliminated entirely either at the outset of the enquiry or at any subsequent stage (eg age or the absence of previous convictions), I consider them to be erroneous. Equally erroneous, so it seems to me, are dicta which suggest that for circumstances to qualify as substantial and compelling they must be 'exceptional' in the sense of seldom encountered or rare. The frequency or infrequency of the existence of a set of circumstances is logically irrelevant to the question of whether or not they are substantial and compelling.

…………

[31] As I have indicated earlier in this judgment the requirement that the circumstances be “exceptional” does not appear from the legislation and, in so far as Liebenberg J approached the question of sentence from that perspective, he erred. In all other respects Liebenberg J approached the question of sentence in a manner consistent with the approach set forth in this judgment. He made reference to the very serious nature of the crime. He pointed to the element of premeditation present and the defenselessness of the deceased. He considered that the motive for the killing was greed. There were apparently some life insurance policies from which Carol would benefit and the appellant stood to gain from the 'lekker lewe' of which Carol had spoken. He adverted to the prevalence of crimes of violence in the country and the community's interest in having the courts deal severely with offenders.

[32] As against those considerations he took into account the absence of any previous convictions, and accepted evidence that Carol was a domineering personality. He accepted too that Carol had been the instigator and that she had brought influence to bear upon the appellant but did not consider it to have been a weighty factor when measured against the appellant's deed. The learned Judge regarded appellant's remorse induced voluntary admission of her guilt to her friends as possibly the strongest point in appellant's favour but then tended to minimise its importance by observing that subsequent remorse was not something exceptional. Having balanced all these considerations he concluded that they did not amount to substantial and compelling circumstances within the meaning of the legislation.

[33] It is not possible to say to what extent the learned Judge's evaluation of the circumstances of the case as not being substantial and compelling was influenced by his adoption of the proposition that they would have to be classifiable as exceptional before they would qualify as substantial and compelling circumstances. That it must have played some role seems clear for he found it necessary to state expressly that he approved of Stegmann J's view that the circumstances would have to be exceptional. Given that misdirection this Court is at large to reconsider the matter afresh and it is unnecessary to decide whether or not it would have been free to do so absent such misdirection.’

[38] In casu, I can do no better than re-emphasizing the direction above provided by the Malgas case. It is therefore apparent that the trial Court committed a material misdirection in this regard by having referred to the word “exceptional circumstances”. The sentence will have to be set aside.

[39] I now turn to consider the sentence of the appellant afresh. The appellant in this matter was 52 years when he was sentenced. He attended school up to grade 3. He was not married. He had two children. He was employed before he was arrested in the first count but since lost it because of him attending the Court proceedings. He has two previous convictions of assault, one in 1986 and the other in 2002.

[40] On the other hand the aggravating factors that are present are that the complainant was very young, 7 years old. The appellant held a position of trust to the complainant because he was her grandmother’s boyfriend and they lived together. He had a duty to take care of the complainant who was defenceless at that time. He was convicted of two counts of Rape on separate dates. The appellant persisted with this immoral conduct even after he was arrested and charged for the first Rape encounter. Although his previous convictions are old, they tend to indicate that he had brushes with the law previously and has a violent character. More significantly they are an indication that he has no prospect of being rehabilitated in that he had spunned the mercy which the Courts previously had given to him. In addition, they are an indication that he does not respect the Courts, the law and the complainant by continuing to commit another offence whilst still on trial of the same offence. Although there was no report of physical mental trauma, it is clear that the complainant suffered injuries because she bled after both acts of rape. The two acts of rape constituted a deflowering of the complainant in the most grievous and brutal manner when she was so young. The appellant did not show any signs of remorse. What is further disturbing is that the appellant committed the second offence again after the complainant was removed from where he was staying. It is also clear that there was an element of premeditation.

[41] In S v Vilakazi 2009 (1) SACR 552 (SCA) the Supreme Court of Appeal held that in cases of serious crimes the personal circumstances of the offender, by themselves, will necessarily recede into the background. Once it becomes clear that the crime is deserving of substantial period of imprisonment the question whether the accused is married or single, whether he has two children or three, whether or not he is in employment, are themselves largely immaterial to what that period should be, and those seem to be the kind of “flimsy” grounds that the case of S v Malgas 2001 (1) SACR 469 (SCA) said should be avoided.

[42] There are more aggravating factors that out-weighs the personal circumstances of the appellant and therefore in my view, there are no substantial and compelling circumstances that exist that warrant this Court to deviate from imposing the minimum sentence of life imprisonment. The sentence of life imprisonment will in my view serve to deter other like-minded people of the appellant’s calibre.

[43] Consequently the following order is made:-

43.1 The appeal against conviction is dismissed;

43.2 The sentence by the trial Court is hereby set aside and substituted with the following:-

“Life imprisonment”

(Both counts are taken together for the purposes of sentence)

43.3 The sentence is ante-dated to the 11th February 2011.

A M KGOELE

JUDGE OF THE HIGH COURT

I agree

SAMKELO GURA

JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE APPELLANT : Mafikeng Justice Centre

Protea Park, 1st Floor 3794

Sekame Street

Industrial Site

MAHIKENG

2745

FOR THE RESPONDENT: Director of Public Prosecutions

Mega City Complex: East Gallery

2nd & 3rd Floor

MMABATHO

2735

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