IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No A354/2010

In the matter between:

and

JUDGMENT: FRIDAY 13 MAY 2011

[1] The appellant was convicted on one count of abduction and five counts of rape in the regional court, Somerset West, and, on 19 March 2009, sentenced to one year's imprisonment for the abduction and five terms of life imprisonment for the rapes, with all of the sentences to run concurrently.

ISSUE IN LIMINE

(4] The relevant portion of the amended s 309(1 )(a) of the CPA read as follows:

(i)    if that person was. at the time of the commission of the offence—
(aa) below the age of 16 years; or

(bb) at least 16 years of age but below the age of 18 years and was not assisted by a legal representative at the time of conviction in a regional court; and

[6]      Section 309B(1)(a) of the CPA reads as follows:

[7] Accordingly, since the amendment of 1 April 2010. all persons other than those who fall under s 84 of the Child Justice Act who wish to note an appeal against any conviction or against any resultant sentence or order of a lower court, have no option but to apply to that lower court for leave to appeal against that conviction, sentence or order.

[8] The relevant provisions of section 84 of the Child Justice Act read as follows:

(a) under the age of 16 years; or

(b)16 years or older but under the age of 18 years and has been sentenced to any form of imprisonment that was not wholly suspended.

[9] The effect of the amendment of 1 April 2010 to s 309(1 )(a) of the CPA is thus that persons sentenced to life imprisonment by a regional court no longer have an automatic right of appeal unless, at the time of commission of the alleged offence, such person was (a) under the age of 16 years; or (b) 16 years or older but under the age of 18 years and sentenced to any form of imprisonment that was not wholly suspended.

[11] Accordingly in my view, although there is no indication in the record of the proceedings in the regional court whether the appellant's applications for leave to appeal and for condonation for the late filing of his application for leave to appeal were ever heard by that court, the appellant's appeal is properly before this Court.
[12] The indications are that the removal of the automatic right of appeal of adults sentenced to life imprisonment by a regional court under the minimum sentencing legislation was inadvertent. If this be the case there is clearly a pressing need for legislative correction of this oversight.

BACKGROUND

[13]     The essential facts which emerged during the trial were the following.

[14] On 28 April 2003 the complainant, who was 13 years old at the time, was visiting a residential area known as Masekane near Gansbaai. She had friends who lived there and she spent the day with some of these friends, although they were not all with her all of the time. They smoked dagga and cigarettes and visited a shebeen and the caravan of a local drug dealer.

[16] A little later that day the complainant, Bianca and another friend, Shirene, stopped at the home of one Phumeza. where a fire was burning outside. Accused no's. 1 and 2 arrived together with the appellant. Accused no.2 had a beer bottle in his hand and the appellant wore an army jacket.
Accused no.2 grabbed Shirene by the arm, but she pulled herself free and ran away.

[17] The appellant and accused no.2 took hold of the complainant and dragged her into the bushes nearby. She was terrified and tried to break free but without success. Accused no. 1 accompanied them. Accused no.2 raped her while the other two held her down. The appellant then raped the complainant while the other two held her down. Accused no.1 then raped her. She was thereafter ordered to dress herself, during the course of which at least one of the three hit her

[18] The appellant then ordered the complainant to lie down again and raped her a second time while the other two held her down. Thereafter accused no.2 raped her again.

[ 19] One of the complainant's friends called out to her and accused no's. 1 and 2 left the scene. The appellant proceeded to assault the complainant and pull her along the path through the bushes. They arrived at a hut and the appellant locked them into this hut. He instructed her to take off her clothes. She refused and he again assaulted her, whereafter she removed her clothing.

[21] There was a knock on the door and when the appellant went to open it the complainant managed to escape and ran until she encountered a vehicle in which the investigating officer, Inspector Julies. was sitting. She reported to him that she had been raped and at his request accompanied him to point out the hut from which she had just escaped. Before they arrived the appellant came running towards them. The complainant immediately identified him as one of the perpetrators and Inspector Julies arrested him. The appellant identified himself as Andile Jali, although accused no.1 later informed Inspector Julies that the appellant's surname was in fact Alam Accused no.1 was arrested later that evening and accused no.2 a week later.

[22] It transpired that Inspector Julies had been searching for the complainant following Bianca Pontak's notification to the police that the complainant had been abducted by the appellant and accused no's. 1 and 2.

[23] Later that evening the complainant was examined by the district surgeon, Dr Barnard who testified that the complainant was extremely shocked and that her clothing was dirty. She had scratch marks on her back and scratch marks from fingernails on her right forearm Her private parts were torn in two areas and were bloodied and bruised. From her injuries he concluded that it was highly probable that the complainant had been raped more than once, although it was not possible to state precisely how many times.

[25] The appellant was also examined by Dr Barnard that evening. Dr Barnard observed blood on the appellants right hand, on his ring finger and in the crotch area of his pants, although there was no injury to his penis. He found a discharge on the appellant's penis. Samples of the discharge and the appellant's blood were taken and these, together with the appellants army jacket and pants, were sealed in a crime kit and sent away for forensic analysis.

[26] Superintendent Magro of the South African Police Services Forensic Science Laboratory testified that the DNA found in one of the semen samples on the complainant's pants matched that derived from the appellant's blood sample.

GROUNDS OF APPEAL

[28] The convictions were attacked on the basis that the magistrate erred in finding that the complainant's evidence contained no material contradictions and was logical and coherent. The appellant argued that there were in fact many contradictions and shortcomings in her evidence and that these, viewed together with the balance of the evidence as a whole, meant that the State had not discharged the onus of proving beyond a reasonable doubt that the appellant was one of the perpetrators. Each of the "contradictions and shortcomings" in the complainant's evidence advanced by the appellant will be considered in turn hereunder.

[29] The sentences were attacked on the basis that the magistrate made certain factual misdirections in his evaluation of the appropriate sentence The appellant argued that the magistrate had also over-emphasised the seriousness of the offences and placed no emphasis on the appellant's personal circumstances. In particular he erred in not finding that substantial and compelling circumstances were present which would justify a departure from the prescribed sentence in respect of the convictions for rape.
THE APPLICABLE LAW

In whichever form the test is expressed, it must be satisfied upon a consideration of all the evidence. A court does not look at the evidence implicating the accused in isolation in order to determine whether there is proof beyond reasonable doubt, and so too does it not look at the exculpatory evidence in isolation in order to determine whether it is reasonably possible that it might be true
The process of reasoning which is appropriate to the application of that test in any particular case will depend on the nature of the evidence which the court has before it. What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false, some of it might be found to be unreliable; and some of it might be found to be only possibly false or unreliable: but none of it may simply be ignored

'A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate Court is of course entitled to consider the question of sentence afresh. In doing so. it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate Court is at large. However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate Court would have imposed had it been the trial court is so marked that it can properly be described as 'shocking', 'startling' or disturbingly inappropriate'.
[35] In terms of s 51(1} and (2) as read with s 51(3) of the Criminal Law Amendment Act the trial court, after having found the appellant guilty of multiple rapes and as an accomplice to a further rape, was obliged to sentence the appellant to life imprisonment in respect of each count, unless he was satisfied that substantial and compelling circumstances existed which justified the imposition of a lesser sentence.

'In summary -

A Section 51 has limited but not eliminated the courts' discretion in imposing sentence in respect of offences referred to in Part I of Schedule 2 (or impnsonment for other specified periods for offences listed in other parts of Schedule 2).

J. In so doing, account must be taken of the fact that crime of that particular kind has been singled out for severe punishment and that the sentence to be imposed in lieu of the prescribed sentence should be assessed paying due regard to the bench mark which the Legislature has provided.'

'(a) when committed -

(i) in circumstances where the victim was raped more than once whether by the accused or by any co-perpetrator or accomplice;'

EVALUATION OF GROUNDS OF APPEAL AND EVIDENCE

[43] The third submission is the appellant's criticism of the complainant for not being able to give a better description of accused no.2, other than him being the man who held the beer bottle, when her friend Bianca had described the white clothing which he had been wearing in some detail. To my mind, nothing turns on this for the simple reason that the complainant was never asked, either by the state or the defence, to describe the clothing worn by accused no.2. During her evidence (including her cross examination) accused no.2 was referred to as the man who held the beer bottle, and the complainant cannot be faulted for not describing the clothing worn by accused no.2 when she was never asked to do so.

[45] The fifth submission is that a further contradiction in the complainant's evidence was that she testified that she was raped once (by the appellant) in the shack, but told Inspector Julies that she was raped twice whilst there. It should be noted that the complainant's version of what she told Inspector Julies was that she had been raped in the bushes and in the

[47] The sixth submission is that the magistrate did not deal with the evidence relating to the dagga which the complainant and her friend Bianca had smoked on the day of the incident, and the effect that this could have had on the memories of these witnesses. This submission is incorrect. The magistrate did deal with it in his judgment, considered it, and did not regard it as casting doubt on the substance of the complainant's evidence.

[50] In my view, on a consideration of the evidence as a whole (including that of the investigating officer, the district surgeon, the DNA evidence and that of the appellant himseff) the State succeeded in proving beyond a reasonable doubt that the appellant was one of the men who abducted the complainant, that he held her down whilst she was raped by accused no.2. and that the appellant himself raped her three times.

[51] However, as indicated the State failed to prove beyond a reasonable doubt that the appellant raped the complainant twice in the hut, regard being had to the evidence of the complainant herself in this respect.

[52] To my mind therefore the magistrate correctly convicted the appellant on counts 1, 2, 3, 5 and 7 but incorrectly convicted him on count 8.

[53] At the time of the commission of the offences the appellant was 20 years old. The probation officers report indicates that he was raised without a father in straitened social and financial circumstances and that he had few friends. He left school at the age of 15 after the school building was set alight during a political protest. He started using dagga and continued to do so until 2005. Upon reaching the age of 18 years he became employed at a golf course for approximately a year, but this employment was terminated when he was convicted of robbery for which he received a sentence of 3 months imprisonment.

[54] The appellant was released on parole in July 2001. In June 2002 he was convicted of theft and sentenced to 12 months imprisonment, but was released on parole prior to completion of his sentence. At the time of commission of the present offences he was employed as a labourer and in receipt of regular income. When he was convicted of the present offences he had been in custody as an awaiting trial prisoner for just over four years.

[56] In my view the magistrate misdirected himself in attaching no weight at all to the appellant's personal circumstances and the fact that he was a first offender for rape. These, together with the appellant's youth, are clearly mitigating factors and, in my view, notwithstanding the seriousness of the offences, constitute substantial and compelling circumstances. The magistrate did not consider at all the possibility that the appellant could be rehabilitated. The sentences which he imposed for the rapes were the heaviest permitted by law. When one takes into account the mitigating factors the five sentences of life imprisonment imposed by the magistrate for the rapes were, in my view, disturbingly inappropriate.

[57] As I have found that the magistrate not only misdirected himself but also imposed a sentence which is disturbingly inappropriate. 1 consider that this court is entitled to interfere with the sentence imposed by the lower court.

"(a) The appeal against the conviction in respect of count 8 is upheld and the sentence of life imprisonment in respect of this conviction is set aside.
(b) The appeal against the convictions in respect of counts 1, 2, 3, 5 and 7 is dismissed.
(c) The appeal against the sentences imposed in respect of counts 2, 3, 5 and 7 is upheld, such sentences being set aside and replaced with a sentence of 18 years' imprisonment in respect of each count with effect from 19 March 2009. It is further ordered, in terms of s 280 of Act 51 of 1977, that the sentences imposed in respect of counts 1, 2, 3, 5 and 7 shall run concurrently."

BOZALEK, J: I agree. It is so ordered.