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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NUMBER: A178/16

DATE:  25 April 2017

JUSTICE MASHABA                                                                                              Appellant

                                                                                   V

THE STATE                                                                                                         Respondent

JUDGMENT

MABUSEJ:

[1] This matter came before us as an appeal against both the conviction and sentence.

[2] The appellant, Mr. Justice Mashaba, appeared before the regional court in Brakpan where he was charged with rape as contemplated in section 3 of Act 32 of 2007.  Despite his plea of not guilty he was convicted accordingly and sentenced upon   conviction in terms of the provision of s 51 of Act 105 of 1997, to life imprisonment.

[3] The  appellant,   who  enjoyed   legal  representation  during  his  entire  trial  made  a   plea-explanation  in terms  of s 115 of the Criminal  Procedure  Act 51  of 1997.  In such plea-explanation he makes the following admission through his legal representative:

"We are admitting that during 2012 and 2013 at or near Tsakane Extension 9 in the regional division of Gauteng he did unlawfully and intentionally commit an act of sexual intercourse with a female person to whit NS at the stage 13 years of age by inserting his penis into her vagina and he had sexual intercourse with her.  He further admits that he was of  full and sober senses whilst having intercourse with the complainant and he admits that he was aware that having intercourse with a minor constitutes an offense."

[4] The legal  representatives of the appellant  mailed the  appellant's  colours  to  the mast when she told the court that what was in dispute was consent.  She went further and explained that the complainant  approached  the appellant on or about  August  2012  and  requested  him to have intercourse  with her.   Originally he refused but had to  give in ultimately  following   the persistence of the complainant.  In the end they formed a relationship.   It was for this  reason that sexual intercourse between them was by consent.

[5] According to the complainant, the alleged rape took place under the following  circumstances. It took place on a bed that she at the same time shared with three of her siblings and in a room in which the four of  them slept at the time.  There was at the same time a television set in this room which the appellant was watching before the incident of sexual intercourse.   Next to this room and divided by a curtain was a room in which the appellant and the  complainant, his girlfriend and her mother slept. The appellant and the complainant's mother had an intimate relationship.

[6] On  that  faithful  night  she  was in bed with  her  siblings  while  the  appellant  was watching television.   On three different and successive occasions she woke up to find inexplicably  her pants pulled down to her knees. This happened, on each occasion because she had been fast asleep. For that reason she could not see who did it and why he or she did it.

[7] On the fourth occasion she woke up only to find the appellant on top of her and her pants pulled down up to her knees.   The appellant  ordered her to keep quiet. With one hand he closed her mouth while with the other hand he took of his pair of trousers and his  underpants down to his knees.  He also took of the complainant's panty, squat it between her thighs   and inserted his penis into her vagina.   Having inserted his private    parts into hers, he moved up and down. When  he  finished  he  put  his  pants  on  and  went to sleep. He  dared  the complainant to tell anyone about the incident at the pain of being taken to Maputo where   the applicant threatened to kill her.  As a consequence of this threat she would not tell any person of her experience for a very long time until she had become pregnant.

[8] During  cross-examination  it  was  put  to  her  that  she  had  consented  to  having sexual intercourse  with the appellant.   She  disputed  this statement  and added that  she  could not have consented to sexual intercourse with the appellant under the circumstances  where  she regarded him as the father and where he had an affair with her own mother. Furthermore,she denied that she and the appellant  developed any love relationship.   Her evidence was followed by that of her mother, L S, and Doctor Monomputo Muka-Makiangi gave evidence as the respondent's  third and last witness. In view of the  nature of the dispute  between the parties this evidence of both L and the Doctor did not take the case any further.

[9] The accused testified in his defence and called no witness to support his case. His version was that the complainant approached him and requested him to have sexual intercourse  with her. He  testified  furthermore   that  during  the  middle  of  approximately  July  2012    the complainant  approached  him for the first time.   At this  stage  the appellant  resisted.   Later during  August 2012 the complainant  approached  him again.   He proceeded to enter into  a sexual relationship with her.

[10] The sexual intercourse, according to his testimony, took place under the following circumstances. At the time the complainant confronted him while he was in his room and in  the bath.  She came into the house and asked where he was.  He responded and told her that he was in  his room taking  a  bath.   The complainant  bravely  walked into his room. She wanted him to have sexual intercourse with her. He got tempted and had sexual intercourse with her.

[11] He testified furthermore that he discovered at the time she had sex with the complainant that she was not a virgin.  Apart from this occasion he had sex with the complainant several  times later.  He stated that he and the complainant  continued to have sexual intercourse each  and every time at the pleasure of the complainant. On each of such occasions it was the complainant who would approach him for sex, the other children would be present and they would be sleeping when they had sex.

[12] The court a quo was satisfied that the State had proved its case beyond reasonable doubt. It convicted the appellant as charged.   The court found that the appellant's  version   supported the State's case to a very large extent.

[13] The appellant has, in his notice of appeal, set out a number of fronts on the basis of which  he challenged his conviction by the court a quo. In the final analysis he contended that the court a quo erred in finding that the State had proved its case beyond reasonable doubt. In this appeal  the appellant  is  represented  by  Adv.  Phahlane  of  the  Pretoria  Justice Centre.  In advance of the hearing of this appeal Mr. Phahlane filed written heads of argument  in   which he submits that the court a quo erred in finding that the State proved rape in terms of s 3 of Act 32 of 2007 and in rejecting the evidence of the appellant as not being reasonably possibly true.   Furthermore,  he submitted that the  court erred in  disregarding  the plea to which   the appellant  wanted to  plead on  which the statutory rape without  giving any reasons    thereto, more particular1y because the State did not indicate whether such a plea is accepted by it  or not.   Thirdly  he submitted  that the appellant's  evidence  regarding  the  sexual act itself was done through the consent  of the complainant  hence  the  need to plead statutory  rape    and giving effect that he acknowledged  that  sex with a  minor  child is  unlawful.   Mr.    Phahlane submitted that the appellant should have been convicted of statutory rape in terms of s   15(1) and nots 3 of the same Act.   Relying on  the  case of Tshabalala  v State (A74/2011)   (2013) ZAGPPBC 159 decided on 12 June 2013 he submitted that he court a quo should have followed  that principle and  convicted  the  accused as  set  out in the  said case.   Finally, he submitted that there was no duty on the appellant to convince the court otherwise as   long as his  version  was  reasonably  possibly  true  even  though  his  explanation  was  found  to be improbable.

[14] The duty of this appeal tribunal is not so much to find any errors in the judgment of the court a quo as it is to establish as whether it has abridged the facts of the matter correctly, in other words, whether it has properly analysed the facts of the case and correctly applied the principles of the law to the facts.

[15] In its judgment the court a quo pointed out that the appellant had, in his plea-explanation in terms of s 115 of the CPA, made material admissions of the elements of the crime he had been charged  with.   It was aware that the battlefield  between the parties  was whether    the sexual intercourse took place with the consent of the complainant as pleaded by the  appellant. The court a quo found that there was no consent. It was alive to the fact that it had to treat the complainant's evidence with caution.

[16] The court a quo was satisfied with the evidence of the complainant. It made no adverse remarks about her as a witness. It stated that the mere fact that she made a mistake on the period of her gestation before she gave birth did not mean that the court should ignore the rest of  her  evidence.   It  observed,  and in our  view  quite  correctly  so, that  the  rest of her evidence was clear, straight forward and that it was beyond reproach.  It could not find any fault with the rest of her evidence.   It was satisfied  with the way in which the complainant described how the incident took place in the bedroom; how the appellant meticulously   went about in shifting her brothers and sisters out of the way so that he could have more room within  which to maneuver.    The  court  a  quo found  that  the  complainant's  memory was extremely good.   Having considered  the evidence  in  totality  the court could not find   any evidence on the basis of which it could infer that there was consent.

[17] It is important to point out that the appellant was charged with contravention of section 3 of Act 32 of 2007. This section states as follows:

"Any person ("A") who unlawfully and intentionally commits an act of sexual penetration with the complainant ("8"), without the consent of("8") is guilty of the offence of rape."

Accordingly this was a charge to which the appellant had to plead too.  He could not choose to plead the statutory  rape, as he called it, when he was not charged with it. He was not charged with contravention of section 15 of the Sexual Offences Act. Any other contention is flawed.   The State is  dominis litis.   It is at large  to bring  upon any  facts placed  on it  any charges it  fancies  against an accused person.   The fact that it  had an option to bring   the charge under section 15(1) of the Act did not mean that it could not bring the charges under s 3 of the same Act.

[18] The appeal against conviction cannot succeed.

[19] This bring us to the appeal against sentence.   Three submissions were made by counsel   for the applicant in this respect and these were that:

19.1   the court a quo erred in holding that there were no substantial and compelling circumstances which warranted deviation from the sentence of life imprisonment;

19.2    the sentence imposed by the court a quo is too harsh, inappropriate and induces a sense of shock;

19.3   the court a quo erred in over emphasising the seriousness of the offence and failed to take into account the rehabilitative effect which the sentence should have on the appellant.

[20] The starting point is that the infliction of punishment is pre-eminently a matter for the  discretion of the trial court. See in this regard R v Maphumulo and Others 1920 AD page 56. This is a discretion that belongs to the trial court and we should be slow to interfere with this discretion unless the trial court misdirected itself or exercised  its  discretion  capriciously. There is no complaint that the trial court exercised its discretion capriciously or committed a misdirection in its selection of sentence.

[21] The next issue that this court must consider is whether the trial court    should have found that there were substantial and compelling circumstances in which case it would have required  to deviate from imposing the ordained sentence.  In considering this aspect, it must always  be remembered that there is no definition of substantial and compelling circumstances and that one   factor  or   a  combination   of   factors   may   constitute   substantial   and compelling circumstances.

[22] In the first place the charge against the appellant was read subject to the provisions of s 51(2) of the Minimum Sentence Act. This subsection ordains a sentence of life imprisonment where

the victim of such rape is a person under the age of 16 years which is the case in this matter unless there are substantial and compelling circumstances. While Mr. Phahlane submitted that the court a quo erred in holding that there were no substantial and compelling circumstances he has himself not pointed out, whether in the notice of appeal or in his heads

of argument, what those circumstances are. We could not find any such circumstances placed before the trial court. In the absence of such circumstances the trial court was entitled to oppose the ordained sentence.

[23] Finally, the sentence of life imprisonment is the kind of sentence prescribed by the legislature. It is therefore not too harsh or inappropriate and does not induce a sense of shock if it is imposed under appropriate circumstances, e.g. where the law prescribes the sentences under

which such a sentence may be imposed and when such circumstances exist. No justification exists for this court to interfere with the sentence imposed by the court a quo on the appellant.

[24] It was finally submitted that the court a quo erred in overemphasising the seriousness of  the offence  and  failed to take into account the rehabilitative effect  which  the  sentence  should have on the appellant.  Neither the State nor the appellant's legal representative argued  this point before the court a quo.

[25] Having imposed a sentence upon the appellant, the court a quo made three orders,  among them, an order in terms of section 50(2)(a)(i) of Act 32 of 2007. We gave both counsel an opportunity 'to peruse the said section and to make submissions on whether or not in making that order, the court a quo followed the correct procedure.  The correct procedure is set out in J v National Director of Public Prosecutions and Another 2014(2) SACR 1 CC (J v NDPP) and also in the following paragraphs 50(2)(c) and 50(2)(d) which were included by section 7(b) of Act   5 of 2015 on 7 July 2015.  Both counsel were ad idem that the court a quo did not follow the correct procedure and that the matter should be referred back to the court a quo only   to deal with this aspect.

[26] In the result the following order is made:

1.        The appeal against conviction and sentence is hereby dismissed.

2.        The conviction of the appellant by the court a quo and the sentence imposed on him are hereby confirmed.

3.        This  matter is referred  back  to the court  a  quo to  comply with the  requirements  of section 7(b) of Act 5 of 2015.

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P.M.MABUSE

JUDGE OF THE HIGH COURT

 

I agree

 

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S.C.MIA

ACTING JUDGE OF THE HIGH COURT

Appearances:

 

Counsel for the appellant:                              Adv. P Phahlane

Instructed by:                                                 Pretoria Justice Centre

Counsel tor the respondent:                          Adv. M Molatudi

Instructed by:                                               Director of Public Prosecutions

Date Heard:                                                 25 April 2017

Reasons furnished on:                                 25 April 2017

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