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Republic of South Africa

IN THE HIGH COURT OF SOUTH AFR!CA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case Number: A487/2010

In the matter between;

ABRAHAM JOHANNES NDUNYUNU ...............................................................................Appellant

and

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

JUDGMENT DELIVERED ON THURSDAY 28 FEBRUARY 2013

DOLAMO, J

[1] The Appellant, who was legally represented by an attorney from the Legal Aid Clinic in Stellenbosch, was found guilty by the Regional Court Paarl on one count of rape (and acquitted on one count of indecent assault). On the 3 June 2009 he was sentenced to 20 years imprisonment. On the 27 May 2010 he brought an application for condonation for the late application for leave to appeal and an application for leave to appeal. He was successful on both fronts and leave to appeal against conviction and sentence was granted.

[2] The two judges to whom the appeal had initially been allocated were unable to agree as to the outcome, hence the present composition of the Court.

[3] The allegation by the State, to which the appellant pleaded not guilty and elected not to give a plea explanation, was that he made himself guilty of rape, read with the provisions of Section 51 (2) of the Criminal Law Amendment Act 105 of 1997 (which was incorrectly referred to in the charge sheet as Act 105 of 1977) in that on or about the 27 October 2007 and in Strand he unlawfully and intentionally had sexual intercourse with the complainant “terwyl sy onder ouderdom van toestemming was te wete 15 jaar oud/ sonder haar toestemming”.

[4] To prove the allegations against him the State led the evidence of the complainant herself and five other witnesses. In addition an affidavit in terms of Section 212 (4) of the Criminal Procedure Act 51 of 1977 (“CPA”), accompanying a medico-legal examination report (“J88”) by one Wernen Viljoen, was admitted into the record. At the conclusion of the State’s case the Appellant testified in his own defence. On the evidence on record the Applicant was convicted and sentenced as aforesaid.

[5] The ground of appeal against conviction is that the Magistrate erred in finding that the State had proved its case against the Appellant beyond reasonable doubt and in rejecting the Appellant’s version as not reasonably possibly true. In this respect it was said that the Magistrate erred in failing to take into consideration or sufficiently take into consideration (i) that the complainant was a single witness and her evidence teemed with contradictions which called for a cautionary approach; (ii) that the complainant was only 15 years old at the time of the incident, which required a cautionary approach to her evidence. It was in this respect submitted that the complainant blamed the Appellant for her mother's death because according to her, the Appellant was sleeping around, and also that she referred to incidents which occurred when she was only 4 years old but had no independent recollection of other incidents which ought to have been fresh in her memory, (iii) that the complainant had sufficient time to report to other people what she alleged had happened to her and, in particular, when she was asked by Margriet and when she went with other people to the hospital, yet she failed to do so; (iv) that the J88 report did not indicate that she had any injuries despite the 15 year old complainant’s testimony that she was assaulted and raped for 3 hours; (v) that there were material contradictions between the evidence of the complainant on the one hand and that of the other witnesses, on the other, which contradictions the Magistrate regarded as immaterial (iv) that the complainant decided on her own to go to the police and lay charges as testified to by Ms Fredericks. The submission was that for these reasons another court may come to a different conclusion than the trial court.

[6] In order to comprehend these grounds of appeal and to determine whether they have any merit it is apposite to review the evidence led in the trial. This review is preceded by a summary of the evidence.

[7] But before summarising the evidence there are two preliminary issues, one of which requires immediate attention. On reading the record of the appeal we were concerned about the manner in which the complainant was sworn in or admonished by the trial court. The question which consequently confronted us was whether the Magistrate duly complied with the provisions of section 164 of the CPA which requires that a witness who is found not to understand the nature and import of an oath or affirmation is to be admonished by the presiding officer to speak the truth. Another matter of concern was whether the provisions of section 51(1) of Act 105 of 1997 were correctly invoked after conviction. As a result we requested the parties' legal representatives to file supplementary heads of argument and to prepare argument to address these two aspects. Both sides obliged and we are indebted to them.

[8] I shall proceed to deal first with the question relating to the application of section

164. (1). Section 164 (1) has as its aim the provision of an alternative to taking an oath or affirmation. It applies where a witness does not understand the nature and import of the oath. Although this section applies to any person in general it finds particular application to child witnesses who due to their immaturity often do not understand the nature and the importance of taking an oath. In such circumstances the witness is admonished by the presiding officer to speak the truth.

[9] In casu the question is whether the Magistrate properly admonished the complainant to speak the truth. The relevant portion which deals with this aspect appears on page 21-23 of the record. This reads as follows:

“HOF: Die getuie is nou in die getuiekamer asook die tussen-ganger. Kan u vir my hoor?

TUSSENGANGER: Ja, edelagbare.

HOF: Kan ek vra wat haar voile naam is asseblief?

GETUIE: Catherine Adams.

HOF: Hou oud is u, Catherine,

GETUIE: 15.

HOF: Praat hard asseblief.

GETUIE: 15.

HOF: Wat is u geboortedatum?

GETUIE : Die 13de van die 10de maand 1992.

HOF: Gaan jy skool?

GETUIE: Ja.

HOF: Wat is die naam van die skool?

GETUIE: Monument Park.

HOF: Waar is Monument Park?

GETUIE: In Kraaifontien.HOF: Is dit ‘n hoerskool, laerskool?

GETUIE: ‘n Hoerskool.

HOF: In watter graad is u?

GETUIE; Graad 8.

HOF: Wie is jou onderwyseres, klasondem/yseres by die skool?

GETUIE : Me C Human.

HOF: Weet u waar is u vandag, juffrou?

GETUIE: Die hof.

HOF: Weet u hoekom u is in die hof vandag?

GETUIE: Ja.

HOF: Weet u wat is die verskil tussen die waarheid en leuens?

GETUIE: Ja.

HOF ; As ek se vir u dat buitekant die son skyn en dit reen nie, sai dit die waarheid wees of leuens?

GETUIE: Leuens.

HOF: Hoekom se u so?

GETUIE : Want die reen daar buite.

HOF: By die huis as u die waarheid praat, wat gebeur met u?

GETUIE : (Geen hoorbare antwoord)

HOF: Kry jy ‘n pak by die huis?

GETUIE: Nee.

HOF: Kry jy ‘n pak as jy leuens praat?

GETUIE : Dan kry ek pak.

HOF: Ek wil net bevestig dit is korrek so, dit reen buitekant. Die getuie is 15 jaar oud, sy kan antwoord, ek is tevrede sy verstaan.

Ek sal net voortgaan en vir uCatherine graag vra dat u moet vir ons die waarheid vertel vandag en niks anders nie, net die waarheid. Beiowe u dat u sal dit doen?

GETUIE: Ek beiowe.”

[10] Ms Rajap who appeared on behalf of the Appellant argued that the Magistrate misdirected herself by applying the provisions of section 164 (1) of the CPA even though she was satisfied that the complainant understood the difference between a lie and the truth. She relied on the judgment in S v Vumazonke 2000 (1) SACR 619 (C) for the proposition that before resorting to see 164 (1) the court must have made a finding that the witness does not understand the nature and implications of the oath. Such a finding, according to her, must be preceded by an inquiry to establish whether the witness understands the nature and import of the oath. Furthermore she argued that the complainant was not admonished to speak the truth but was merely asked for a “promise” to tell the truth which fell short of the requirements of section 164 (1).

[11] Mr Pelesa, for the State, did not agree with this submission and argued that it was not the form but the substances of what the presiding officer does which would determine whether there was compliance with the provisions of section 164 (1). Mr Pelesa relied on the decisions in S v Sikhipa 2006 (2) SACR 439 (SCA) and S v Williams 2010 (1) SACR 493 (ECG) to submit that it was not necessary to hoid an inquiry to establish whether the witness does not understand the nature and import of an oath.

[12] The reason for giving evidence under oath, (See s162), affirmation (See s163) or admonishment, (See s164) is to ensure that the evidence given is reliable¹ . Section 162 (1) prescribes the words to be used when administering an oath to a witness². Section 163, similarly, prescribes the words to be used where a witness elects to make an affirmation in lieu of an oath³. An affirmation is used where a witness has an objection, on any of the grounds enumerated in section 163 (1)⁴, to taking the prescribed oath. Section 163 (1) is therefore used in circumstances where a witness who understands the nature and import of the oath but nevertheless has an objection to doing so is allowed to make an affirmation. Section 164 (1), on the other hand, is intended for use in completely different circumstances to those of sections 162 and 163; it is to be used specifically where any person is found not to understand the nature and import of the oath. This lack of understanding may be due to a variety of reasons, the common ones being youthfulness or defective education.

[13] It is furthermore important to note that section 164, unlike section 162 and 163, does not prescribe any form in which the admonition must be made. All what the section requires is that such a person must be “found not to understand the nature and import of the oath or affirmation...” for the presiding offer to admonish the witness to speak the truth. In Sikhipa supra the Supreme Court of Appeal held that it is not necessary [though desirable] to hold a formal inquiry into a witness’s ability to understand the oath or affirmation. A presiding officer may therefore form a view in this regard without formally holding an enquiry or recording his or her views⁵.

[14] The swearing in of a child witness involves two stages: The first stage is to establish whether the child is able to distinguish between the truth and a lie. The second, which follows the first one and where it is established that the child can distinguish between the truth and lies, is to determine whether the child understands the nature and import of the oath and, if so, the oath or affirmation, depending on the circumstances of each case, is administered. If not, the presiding officer will admonish the child to speak the truth. That this is the procedure to be followed is confirmed by the judgment of Bosielo JA (who due to the many irregularities, characterized the trial in the Regional Court, as a comedy of errors) in Tshimbudzi v State (137/12) [2012] ZASCA 200 at paragraph 7 who stated this two stage process as follows:

“[7] A further irregularity relates to whether the complainant was validly sworn in in terms of s 162 of the Criminal Procedure Act 51 of 1977 (CPA) before she testified. The record shows that she was sworn in. (‘d.s.s’). However this is not enough as the complainant was a minor. Given the age of the complainant it was essential that the regional magistrate make some enquiry to satisfy himself that the complainant understood and appreciated the distinction of telling the truth and a lie. Only in the event that the magistrate was satisfied that the minor possessed this ability should the magistrate then have proceeded to determine whether the said minor fuliy understood the nature and import of giving evidence under oath. The magistrate conducted none of these enquiries and as a consequence the complainant’s evidence was rendered inadmissible. ”

[15] It is evident therefore that section 164 (1) is concerned with the question of whether the witness understands the nature and import of the oath. Naturally this will follow after the court has established that the child is able to distinguish between the truth and lies. If a child witness is unable to distinguish between the truth and untruth such a child is not a competent witness and therefore cannot testify. The question of administering an oath or affirmation does not arise. Only where the witness is a competent witness will the second stage come into play. The court can satisfy itself that the child understands the nature and import of the oath by questioning the child. A formal inquiry is not necessary. Such questioning must be carried out skilfully so as to achieve its objectives. Ngcobo J in the DPP judgment supra at page 279 paragraphs

164. and 168 emphasised, in the following terms, the importance of a skilful questioning of a child witness:

“[165] The practice followed in courts is for the judicial officer to question the child in order to determine whether the child understands what it means to speak the truth. As pointed out above, some of these questions are very theoretical and seek to determine the child's understanding of the abstract concepts of truth and falsehood. The questioning may at times be very confusing and even terrifying for a child. The result is that the judicial officer may be left with the impression that the child does not understand what it means to speak the truth and then disqualify the child from giving evidence. Yet with skilful questioning, that child may be able to convey in his or her own child language, to the presiding officer that he or she understands what it means to speak the truth. What the section requires is not the knowledge of abstract concepts of truth and falsehood. What the proviso requires is that the child will speak the truth. As the High Court observed, the child may not know the intellectual concepts of truth or falsehood, but will understand what it means to be required to relate what happened and nothing else. ”

And at 168 the following:

“[168] As pointed out earlier, questioning a child requires a special skill. Not many judicial officers have this skill, although there are some who, over the years and because of their constant contact with child witnesses, have developed a particular skill in questioning children. This illustrates the importance of using intermediaries where young children are called upon to testify. They have particular skills in questioning and communicating with children. Counsel for the Centre for Child Law and Childline was quite correct when, in her reply, she submitted that everything seems to turn upon the need for intermediaries when young children testify in court. Properly trained intermediaries are key to ensuring the fairness of the trial Their integrity and skill will be vital in ensuring both that innocent people are not wrongly convicted and that guilty people are properly held to account. ”

[16] In casu the exchanges between the Magistrate and the complainant referred to supra, in my view, contain an adequate questioning of the latter to establish her competency as a witness. And once the Magistrate was satisfied as to her competency as a witness she adequately admonished her to tell the truth. The Magistrate had the benefit of observing the complainant’s demeanour and behaviour and based on these, coupled with the preceding questioning, enabled her to form a view that, though she was a competent witness, she would not have understood the nature and import of an oath or affirmation, hence her admonition of the witness to speak the truth. There was therefore substantial compliance with the provisions of section 164 (1) and the evidence of the complainant is admissible. Having dealt with this preliminary issue I turn to the evidence led in the trial.

[17] The first witness for the State was the complainant, who indicated to the court that she was 15 years old at the time she testified in court through an intermediary. She testified that the Appellant was her stepfather, who married her mother when she (the complainant) was only 4 years old. On the 27^th October 2007, while her mother was in hospital, the Appellant came to her room where she was sleeping with her brother, Adriaan, and woke her up. He told her that the doctors could not help her mother and that she was dead. He then gave her a glass of water to drink. She noticed that there were white pills in the glass and that the water had a bitter taste. Appellant ordered her to come and sleep with him in his room. He slapped her across her face when she refused. As a result she clung to her brother but she was again slapped when she did not heed his instructions to go to his room. She eventually followed his instruction and went to his room and, once there, was ordered to undress. She complied and took off her pants. He then raped her from around 12 midnight to 3 in the morning, in between assaulting her when she did not follow his orders. She was raped once in her vagina and twice in her anus. She managed at one stage to go to the toilet and once there realized that she was bleeding. She however returned to Appellant’s room. He also ordered her to perform oral sex on him. This was not the first time he had ordered her to perform this lewd sexual act. He had done so on several occasions while she was still about 4 years old. They were at the time living in De Dal in Stellenbosch. She had reported those incidents to her mother. The latter took her to a doctor but told the doctor that she was suffering from piles.

[18] Coming back to the incident of the 27/10/2007 the Appellant woke her up the morning and told her to get ready to go to hospital to visit her mother who, allegedly, was dying. Before they left for hospital she went to Ms Margriet Fredericks’ house (she was not certain whether she went to fetch or drop off something). When asked by Ms Friedericks whether anything was wrong she denied that there was anything wrong or that she had been screaming the previous night. She said she denied that she had been screaming because she was not keen to tell Ms Friedericks about her ordeal in the presence of one Ms Margie Tand whom she regarded as a rumour monger, who would not have hesitated to spread the news of what happened to her. She thereafter went to hospital with Appellant and her brother Adriaan to visit her mother. They were conveyed to hospital by Patrick, Appellant’s friend. Once at the hospital she could not tell her mother because she (her mother) was unconscious. She was also hindered by the presence of the Appellant who had earlier threatened to kill her should she tell anybody what had happened.

[19] From the hospital they went to visit Patrick’s family where Appellant and his friends drank beers while she and her brother lay on a mattress which was outside the house. Appellant later disappeared with what she referred to as the money and the goods (“goedere”). it was never clarified what she meant thereby. Patrick eventually took her and her younger brother back to Strand. She requested Patrick, who obliged, to drop her off in 5^th Avenue and before they reached her home. After alighting from Patrick’s vehicle she went to “Reedy’s” house and reported to her what Appellant did. “Reedy” called Ms Friedericks who on arrival telephoned Sanet, the employer of complainant’s mother at the time. The latter advised them to report the matter to the police. As a result she went to lay charges against the Appellant. The police referred her to hospital for medical examination where, after being examined, she was given pills. She never went back home but went to stay with Sanet. A week after the incident she and Sanet went to visit her mother in hospital. She related to her mother what had happened. Her mother eventually passed away on the 12 November 2007. She abandoned her exams as a result and went to stay with her aunt in Kraaifontein.

[20] Farieda Van Wyk (whom the complainant had referred to as “Reedy”) testified that she was friends with the complainant’s mother. She stated that on a Sunday, the 28 October 2007 at about 15h00, the complainant came to her and requested to tell her something. As she was with people she asked complainant to come with her into the church structure which is on her premises. Once in private complainant told her that her stepfather had raped her the previous night. With the permission of the complainant she then called Ms Margriet Friedericks. The complainant repeated what she had told her to Margriet Friedericks. They then called the complainant’s mother’s employer who advised them to report the matter to the police. They phoned the police who came to her place and fetched the complainant,

[21] Magriet Friedericks testified that on the Saturday night just before 12 midnight she woke up and went to look for her daughter, where she was with friends, near the Appellant’s home. On her way back she heard complainant screaming. She then went to the shack in which complainant lived with Appellant and called out but nobody answered. She went to peep through a hole in the wall of the complainant’s room. She saw Appellant sitting on the bed on which the complainant was sleeping. He was only clad in blue underpants. She went back to knock at the door but again there was no answer and nobody came to open the door. She went back to the hole and peeped in again. She was in time to see the Appellant poking his finger in the complainant’s face and slapping her across the face. She assumed that this had to do with the complainant refusing to go and buy beers for the Appellant, something which he used to do (i.e sending her to buy beers for him). She thereafter left. She was called the following day to Farieda Van Wyk’s place and was told by the complainant what had happened to her the previous night. The complainant also told her that she could not respond when, the previous night, she called her and knocked at the door because Appellant had warned her to keep her mouth shut. She also confirmed that complainant came to her place in the morning but could not tell her what had happened the previous night because of the presence of other people at the time. As a result when she asked the complainant what was wrong she could not explain but just left.

[22] Linda Hassiem testified that her involvement in the matter was merely to accompany the complainant to the police station and to the Hottentos Holland Hospital because she said she had been raped. The complainant was crying and shiverish. ! need to point out that the other state witnesses, Fredericks and Van Wyk, also testified to the complainant crying as she related to them what had happened.

[23] The last state witness was Johanna Sandt who is the complainant’s aunt and with whom the complainant was staying at the time. She gave a bit of background as to where the complainant and her parents resided since she was about 4 years old. According to her the family moved around a lot and, since 1998, were living in the Stellenbosch-Strand area. They were originally from De Dooms. She was however not certain as to where they had resided at any specific time.

[24] The state’s case was concluded with the admission into the record of the contents of the J88 report which was confirmed by an affidavit in terms of Section 212

4. of the CPA. in this medico legal report the medical practitioner recorded his findings, as follows: “hymen afwesig Bioed en semenagtige afskeiding sighaar in vigina”. Loosely translated into English the doctor stated that: “hymen absent. Blood and semen like discharge visible in the vagina”.

[25] The Appellant’s evidence other than to deny the rape or assault of the complainant, corroborated the complaint’s chronology of the events of the 27^th October 2007. He testified that his day was mainly occupied with drinking beer with friends and eventually succumbing to this bout of heavy drinking. He could not, as he is not expected, to give reasons why the state witnesses, in particular the complainant, had testified against him.

[26] In her judgement the Magistrate summarized and analysed the evidence led in the trial and arrived at the conclusion that the state had succeeded in proving the charge of rape against the Appellant beyond reasonable doubt. She was aware of the need to apply the cautionary rule to the evidence of the complainant as a single witness. She was however not prepared to extend the application of the cautionary rule to the complainant as a child witness as she found her not to fall into the category of child witnesses. She found the complainant to be an honest and forthright witness who was able to relate the events of the day in question with clarity. She also found her evidence to have been partly corroborated by Magaret. She similarly, found the other state witness to be truthful and who had no reason to connive against the Appellant. On the other hand she was not impressed by the Appellant’s demeanour as well as his defence of a bare denial in the face of what she regarded as the over whelming evidence presented by the J88 report,

[27] The approach to the evaluation of evidence was authoritatively stated by Navsa JA in S v Trainor 2003 (1) SACR 35 (SCA) at 41, in paragraph 9 as follows:

“[9] A conspectus of all the evidence is required. Evidence that is reliable should be weighed alongside such evidence as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering whether evidence is reliable, the quality of that evidence must of necessity be evaluated, as must corroborative evidence, if any. Evidence, of course, must be evaluated against the onus on any particular issue or in respect of the case in its entirety. ”

[28] In my view the Magistrate’s approach to the evaluation of the complainant’s evidence, though cryptic, was correct. She accounted for all the evidence which was led in the trial, paying particular attention to the complainant’s evidence. She applied the cautionary rule to her evidence when such application was warranted.

[29] The complainant related in satisfactory and compelling terms what happened to her. Though she was a single witness to the actual rape incident she was corroborated by Margaret on a material aspect of her evidence, namely that the Appellant came to her bedroom and in the process of persuading her to go to his room slapped her. In S v Banana 2000 (2) SACR 1 (ZSC) on page 8C Gubbay CJ (delivering the judgement of the majority of that court) stated the following:

“ Where the evidence of the single witness is corroborated in any way which tends to indicate that the whole story was not concocted, the caution enjoined

may be overcome and acceptance facilitated. But corroboration is not essential. Any other feature which increases the confidence of the court in the reliability of

the single witness may also overcome the caution. ”

[30] The evidence of Van Wyk, that she saw the Appellant slapping the complainant in the face, corroborates the evidence of the complainant that the Appellant slapped her when she refused to go to his room. The argument by Ms Rajap that there was a contradiction between the complainant and Van Wyk in that the complainant mentioned being poked with a finger is immaterial. The same with criticism levelled against the rest of complainant’s evidence, namely, that she did not make a report at the first available opportunity is unfounded. As against the submission that she did not report to Magriet Van Wyk what happened to her, in addition to denying that she had been screaming the previous night, complainant was able to explain herself clearly. According to her explanation she was reluctant to divulge what had happened to her in the presence of Margie Tand. This explanation in my view is satisfactory. It goes without saying that since she was not free to discuss her problems in the presence of Margie Tand it would have placed her in an awkward position to admit to screaming. She would have had to give an explanation, in the presence of the same Margie Tand, what were the circumstances that led her to scream. Furthermore her apprehension that Margie Tand would have spread what had happened to her is understandable. Many people would be reluctant to divulge to people whom you do not trust, details such as being raped.

[31] In my view the J88 report independently corroborated the State’s case against the Appellant. It corroborated the complainant’s evidence that after the rape and when she went to the toilet she discovered that she was bleeding. Ms Rajap argued that this

was not corroboration of the complainant’s evidence since the discharge was not analysed to determine that the semen-like discharge in her vagina was indeed semen. An analysis of the discharge in the context of this case was, in my view, unnecessary. The medico legal report was not aimed at establishing that the semen came from the appellant but as corroboration of the complainant on the fact that she had been raped. The examiner in his professional experience and without the need to do an analysis involving chemistry or related tests was able to establish the nature of the discharge. His findings in my view assumes further significance in the light of the complainant’s evidence that she had never had consensual sexual intercourse before (as recorded in paragraph 10 and 11 respectively, under section D of the J88).

[32] It was also argued that she waited the whole day before making a report to Van Wyk in the afternoon. This criticism loses sight of the fact that the complainant was throughout the day after the incident, arrested in a programme of activities designed by Appellant and to which she had no input. She could not report to her mother because she was unconscious. She had to wait until she was free to make the first report. She seized the first opportunity when she was free and back in her familiar environment of Strand to report to Van Wyk. She also stated that she was not used or familiar with Patrick or his family and therefore could not report to them. This explanation in my view is plausible.

[33] On a conspectus of the evidence of the State as a whole the Appellant’s version, in my view, was correctly rejected as false. His bare denials in the face of corroboration of the complainant’s evidence, particularity by Fredericks’ evidence that she heard the complainant screaming and saw Appellant slapping her, coupled with the findings of the medico-legal examination recorded in the J88, cannot be said to be a reasonably possibly true version. I am accordingly satisfied that the State had proved its case against the Appellant beyond reasonable doubt and that he was correctly found guilty of rape.

[34] The suggestion, made obliquely and in passing, that the motivation for bringing the charges against the Appellant was to get back at him and intended to get rid of him from her life because she perceived him as the cause of her mother’s death is equally without substance. If indeed the complainant was not raped but had fabricated the charges against him she would have found Margie Tand a convenient means of spreading these false allegations. She would have readily told the alleged fabricated story in the presence of Margie Tand in the knowledge that she would not hesitate to spread the story. In this way complainant would have achieved her purpose of getting rid of the Appellant, since no doubt action would have been taken against him once it was known that he had raped the complainant.

[35] The second question which we raised and on which we called for supplementary heads was whether the Court a quo was entitled to invoke the provisions of section 51 (1) of Act 105 of 1997, in view of the fact that the charge sheet pertinently referred to section 51 (2) and not section 51 (1) and that there was no reliable evidence as to the complainant’s age at the time when the offence was committed. To put this latter aspect in its proper perspective, though not challenged by the defence during the trial, the only evidence is by the complainant herself that she was 15 years old at the time (I shall revert to this aspect later). Section 51 (1) and (2) provides as follows as far as relevant:

“51 Discretionary minimum sentences for certain serious offences

(1) Notwithstanding any other law., but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person it has convicted of an offence referred to in Part I of Schedule 2 to imprisonment for life.

(2) Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person who has been convicted of an offence referred to in-

(b) Part III of Schedule 2, in the case of-

(i) a first offender, to imprisonment for a period not less than 10 years. ” (This includes rape in circumstances other than those referred to in Part I)

[36] At the commencement of the trial and before the Appellant pleaded the Magistrate asked the following question:

“Die bepalings van artikel 51... (onduidelik)

to which his legal representative confirmed that; “ek het die beskuldigde van artikel 51 verduidelik, edelagbare van artikel 51, edelagbare. Ek kan dit bevestig. ”

[37] The quoted passages do not specify to which sub-section of section 51 of Act 105 of 1997 reference was made. This however can only mean reference to section 51 (2) of Act 105 of 1997 as the charge sheet, on the main count, stipulated that the Appellant was facing a charge of rape read with the provisions of section 51 (2) of Act 105 of 1997. When giving judgment the magistrate stated, again without clearly specifying the section relied on, that she was informed by the Appellant’s legal representative that the Act on minimum sentences was explained to the Appellant. She again omitted to mention the applicable subsection of section 51 when she outlined the charges which were preferred against the appellant. This omission carried through until Appellants ultimate conviction. The same approach, of not specifing the relevant subsection, was also adopted by his legal representative. This appears from the opening remarks of appellant’s legal representative, who without mentioning whether section 51 (1) or 51 (2) was applicable, indicated that the appellant was convicted of an offence which will attract punishment under section 51 (1). The court in turn emphasised that the minimum sentence which could be imposed on the Appellant in terms of section 51 read with Part I of Schedule 2 was life imprisonment because the complainant was raped more than once and that she was under the age of 16. The Magistrate, however, found that there were substantial and compelling circumstances which justified the imposition of a lesser sentence than life imprisonment.

[38] The charge sheet in this matter stipulated that the Appellant was charged with rape read with the provisions of section 51 (2) of Act 105 of 1997 and Part III of Schedule 2 which provides that upon conviction an accused who is a first offender shall be sentenced to ten years imprisonment. A lesser sentence than 10 years imprisonment may be imposed if the Court finds that substantial and compelling circumstances existed which justified the imposition of such a sentence. The Accused, where the rape is read with the provisions of section 51 (1), on the other hand faces the prospect of a life imprisonment on conviction unless the Court finds substantial and compelling circumstances justifying a lesser sentence.

[39] Ms Rajap argued that the State decided to restrict itself to section 51 (2) of Act 105 of 1997 which prescribed a minimum sentence of 10 years imprisonment. She argued that since this was what was put to the Appellant it was not open to the Court a quo to invoke a completely different section which provided for a more severe sentence unless the State had sought and had been granted an amendment of the charge sheet in term of section 86 of the CPA, It is common that no such application was launched. Mr Pelesa, on the other hand, conceded that it was not open to the Court to sentence the Appellant, as it did, where the charge sheet stated that he was charged with rape read with the provisions of section 51 (2) of Act 105 of 1997.

[40] The question is whether the Magistrate erred in imposing a sentence on the appellant which was sanctioned by the provisions of section 51 (1) where he had been convicted of rape read with the provisions of section 51 (2). In terms of section 51 (2) the Magistrate had no jurisdiction to impose a maximum sentence in excess of 15 years imprisonment. She could only exceed the prescribed minimum sentence of 10 years by an additional 5 years and nothing move.

[41] The Supreme Court of Appeal in S v Mashini and Another 2012 (1) SACR 604 at 609 para [16] held that the answer to this question lies in section 35 (3) of the Constitution of the Republic of South Africa which guarantees every accused person the right to a fair trial which, inter alia, includes the right to be informed of the charge with sufficient details to answer it. In this respect the Court held at page 611 para 17 as follows:

“[17] In this matter the state decided to restrict itself to s 51(2), where part III of schedule 2 prescribes a sentence of ten years' imprisonment. This is what was put to the appellants and to which they pleaded guilty. It was not thereafter open to the court to invoke a completely different section which provides for a more severe sentence, unless the state had sought and been granted an amendment of the charge-sheet in terms of s 86 of the Criminal Procedure Act prior to conviction. The state did not launch such an application. The

magistrate was therefore bound to impose a sentence in terms of s 51(2) read with part ill of schedule 2. ”

[42] A further reason, in my view, why the provisions of s 51 (1) could not be invoked in this case was because there was insufficient evidence to prove that the complainant was under the age of 16 at the time. This being the fact that would ‘trigger’ the provisions of s 51 (1), read with Part I of Schedule II to the Act, the onus rested on the State to prove this jurisdictional fact beyond reasonable doubt. The only evidence adduced in this regard was the complainant’s own say-so that she was born on 13 October 1992, which would have made her 15 years old at the time of the incident. It is important to bear in mind, however, that the complainant is not able to give evidence as to her own age where her age is material either to the offence or to sentence.⁶

[43] As in the Mashini’s judgment supra I find that the Magistrate in casu misdirected herself in sentencing the Appellant for an offence different to the one for which he was convicted and under a different sentencing regime. This misdirection is material and vitiates the sentence imposed. This Court is therefore free to interfere with the sentence by the court a quo.

[44] It remains to be stated that section 51 (2) read with part III of schedule 2 of Act 105 of 1997 prescribes a minimum sentence of 10 years imprisonment which shall be imposed unless the Court finds the existence of substantial and compelling circumstances. What constitute substantial and compelling circumstances was authoritatively outlined in S v Malgas 2001 (1) SACR 489 (SCA) at para [9] and where it was held that Courts should not deviate from imposing these minimum prescribed sentences for flimsy reasons,

[46] The Appellant was 34 years old and a widower at the time of sentencing. He had three children, one of them, a boy who was 12 years old, was the complainant’s half brother. Prior to his arrest Appellant had been employed for a year and four months as a labourer earning R2400 per month. He went only as far as Grade 9 in his formal education. He had two previous convictions: one of theft and another of housebreaking with intent to steal and theft dating back to 1999. He was sentenced to 12 months imprisonment for the latter offence.

[47] I find it aggravating that the Appellant, who was in loco parentis, would choose to take advantage of the complainant when she was at her most vulnerable. He attacked her at night when her mother, who could have afforded her protection if she was present, was in hospital. The complainant testified that Appellant had kept a watchful eye on her during the day when she was with her friend but waited until she was alone to pounce on her. The Appellant was also insensitive to her emotional state regarding her mother’s health condition. He unashamedly told her that her mother had died no doubt adding further to her mental anguish. When he eventually raped her her screams and protestations did not deter him. He not only raped her in her vagina but also anally. He did not shy from forcing her to perform other lewd sexual acts. All of these in my view are aggravating and could have led to life imprisonment being imposed had he been charged under the correct subsection of section 51 of Act 105 of 1997.

[48] Taking all these factors together, I find no substantial or compelling circumstances to justify a lesser sentence than the one ordained by Section 5 i (2) of Act 105 of 1997. As a result of the misdirection by the Magistrate however the appeal against sentence ought to succeed.

[49] The order I propose is therefore the following:

49.1. The Appeal against conviction is dismissed.

49.2. The Appeal against sentence is upheld.

49.3. The sentence imposed by the Magistrate is set aside and replaced by a sentence of 10 (ten) years imprisonment. In terms of section 282 of the CPA this sentence is antedated to the 3^rd June 2009 which is the date on which Appellant was originally sentenced.

DOLAMO, J

GRIESEL. J ; I agree. It is so ordered

GRSESEL_, J

NDITA, J: I agree

NDITA, J

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