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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)       REPORTABLE

(2)       OF INTEREST TO OTHER JUDGES

(3)       REVISED

CASE NO: A669/2016

17/4/2018

 

In the matter between:

 

SIBONGILE SOLOMON RAMBUDA                                                                  First Appellant

DANIEL MOTSWALO BALOYI                                                                           Second Appellant

 

and

 

THE STATE                                                                                                              Respondent

JUDGMENT

 

Baqwa J

On a charge of - Housebreaking with intent to rape and rape- Housebreaking with intent to rob and robbery - Appellants with previous convictions of theft and robbery - where the effective sentence of 40 years (a Methuselah sentence) appropriate.

Summary

The complainant was sleeping in her room on 13 May 2008 when she woke up at midnight and saw a torch light shining in the room. She realised that a person had broken into the room and she screamed. One of the perpetrators came closer to the bed and pointed her with an object which felt like a firearm and she stopped screaming. He threatened to kill her if she continued to scream. He demanded money whilst others were busy taking things out of the house. After they were done, they returned into the bedroom and the second appellant was the first to rape her followed by the first appellant. After raping her. the first appellant wanted to kill her but was restrained by the second appellant. The appeal was against sentence of an effective sentence of 40 years imprisonment.

 

Held,    that the legislature had already intervened through the Parole and Correctional Supervision Amendment act 87 of 1997 to ameliorate the position of the person subjected to that sentence by directing that person to be considered for parole once 25 years of the sentence had been served. The appeal against sentence was dismissed.

 

Annotations:

Reported cases

S v Legoa 2003 (1) SACR 13 SCA

S v Makatu 2006 (2) SACR 582 SCA

 

Unreported cases

Mafoho v The State (149/12) 2012 ZASCA 49 (28 March 2013)

 

Statutes

Parole and Correctional Supervision Amendment Ad No. 87 of 1997

Criminal Law Amendment Act No. 105 of 1997

 

[1]        The appellants herein were arraigned before the Regional Court. Potchefstroom on 8 April 2011 on three counts of housebreaking with intent to rape and rape (count 1); rape (count 2) and housebreaking with intent to rob and robbery with aggravating circumstances (count 3).

[2]        They were convicted as charged on 12 April 2011. They were sentenced to serve 25 years imprisonment in respect of counts 1 and 2 which were taken together for purposes of sentence. They were sentenced to 15 years imprisonment in respect of count 3. Their effective term of imprisonment was 40 years imprisonment.

[3]        The appellants were granted leave to appeal against sentence only after petitioning the Judge President of the High Court of South Africa (Gauteng Division, Pretoria).

 

Background

[4]        The background to this matter is briefly as follows. The complainant, D P T was sleeping in her room at about midnight when she woke up and observed a torch light shining in the room. Upon realising that there was another person in the room she screamed. One of the assailants came close to the bed and pointed her with an object which felt like a firearm and she stopped screaming. He threatened to kill her if she continued to scream. He demanded money whilst his accomplices were busy removing items out of the house. After they were finished they came into the bedroom and the second appellant was the first to rape her and the first appellant followed and raped her. The third assailant who was accused 2 before the court a quo refused to rape her.

[5]        After the rape the first appellant wanted to kill the complainant but the second appellant stopped him.

[6]        The complainant reported the incident to her neighbour and the police were called. The complainant was taken to the police station where she formally reported the matter and a statement was taken from her.

[7]        The appellants were subsequently arrested and some items were recovered from the first appellant's house which the complainant identified as belonging to her .

[8]        The second appellant was also arrested and a 6500 Nokia cell phone was recovered from one Daniel Mathipa who had received it from the second appellant as security for a R400.00 loan given to the second appellant.

[9]        The first appellant admitted the housebreaking and the robbery but denied the rape whilst the second appellant denied all the charges against him.

[10]     The appellants contend that they were not warned by the trial court of the applicability of section 51 (1) of Act 105 of 1997 and submit that this is a fatal irregularity resulting in an unfair trial in respect of sentence. They go on to mention that the applicability of Act 105 of 1997 was mentioned for the first time during the sentencing.

[11]     What is pertinent to mention is that even in the appellants' heads reference is made to the wording of the charge sheet namely "housebreaking with intent to rape and rape as defined in section 51 and 52 of Act 105 of 1997”. The said sections contain the provisions which prescribe the minimum sentences. What the appellants have omitted is to state that the charge sheet even referred to Schedule 2 of Act 105 of 1997 as amended.

[12]     It is also common cause that the appellants were legally represented and that they confirmed that they understood the charges against them.

[13]     Besides these common cause factors it is also true that the appellants were not only tried before the court a quo but they applied for leave to appeal against conviction which was denied by both the court a quo and upon petitioning the Judge President of the High Court of South Africa (Gauteng Division.) In my view section 35 of the Constitution deals with the concept of an unfair trial. I am not aware that trial can be fair in respect of conviction and unfair in respect of sentence as suggested by the appellants. This court cannot address or reopen issues which could more competently have been addressed prior to conviction or in an appeal against conviction.

[14]     I am also not persuaded that the contention by the appellants is valid in light of the pronouncement by Justice Cameron JA (as he then was) in S v Legoa 2003 (1) SACR 13 SCA par 20 - 21 when he said:

"The matter is, however, one of substance and not form, and I would be reluctant to lay down a general role that the charge must in every case recite either the specific form of the scheduled offence with which the accused is charged, or the facts the State intends to prove to establish it. A general requirement to this effect, if applied with undue formalism, may create intolerable complexities in the administration of just e and may be insufficiently heedful of the practical realities under which charge sheets are frequently drawn up. The accused might in any event acquire the requisite knowledge from the particulars furnished to the charge or, in a Superior Court, from the summary of substantial facts the State is obliged to furnish. Whether the accused's substantive fair trial right, including his ability to answer the charge, has been impaired, will therefore depend on a vigilant examination of the relevant circumstances."

 

[15]     In casu, the parameters of the charge were explicitly stated in the charge sheet and this was a fortiori the case as the appellants were legally represented.

[16]     The approach stated in Legoa is affirmed by Lewis JA in S v Makatu 2006 (2) SACR 582 SCA at para 7:

 

" As a general role, where the State charges an accused with an offence governed by section 51 (1) of the Act, such as premeditated murder, it should state this in the indictment. This rule is clearly neither absolute nor inflexible."

 

[17]     Regarding sentence, the respondent has in support of its submissions referred to the Parole and Correctional Supervision Amendment Act 87 of 1997 (the 1997 Act) which came into operation on 1 October 2004. The 1997 Act amended section 65 (4) (a) of the old Act by providing that a prisoner serving a determinate sentence shall not be considered for placement on parole, unless he has served half of his term of imprisonment, provided that no such prisoner shall serve more than 25 years before being considered for parole.

[18]     The 1997 Act also amended, in section 9 (d) (iv) thereof, the old Act by providing that in respect of imprisonment contemplated in section 52 (2) of the Minimum Sentences Act, the prisoner shall not be placed on parole unless he has served at least four fifths of the term of imprisonment imposed or 25 years, whichever is the shorter.

[19]     On the same date the 1997 Act came into operation (i.e. 1 October 2004), by way of Proclamation R38 in Government Gazette 26626, 30 July 2004 section 65 of the Old Act was repealed and substituted by the provisions contained in the 1997 Act.

[20]      What is pertinent, is the effect of the amendment of the parole period in section 65 (4) of the Old Act, upon the appellant's right to parole. By virtue of the fact that section 65 (4) of the Old Act, was amended on the same date that the provisions of section 73 (6) (a) of the new Act were brought into operation, it is evident that the intention of the legislature was to create equality amongst those prisoners eligible for parole, irrespective of whether they were sentenced before or after the passing of the new Act The right to parole, whether the prisoner is sentenced to a determinate sentence or to life imprisonment, is the same regardless of the date the prisoner was sentenced.

[21]      The appellants in the present case were convicted not only of rape and robbery, both subject to the applicability of the Criminal Law Amendment Act No. 105 of 1997 (Minimum Sentences Act). They were thus convicted not only of very serious crimes but their situation was aggravated by the fact that they were not first offenders. They had previous convictions of theft and robbery. The effective 40 years imprisonment was the result of the cumulative effect of the factors relevant to sentencing and not the result of any misdirection on the part of the court a quo, hence the relevance of the reference by the respondent to the 1997 Act

[22]      The respondent submits and I accept that taking into account the provisions of the 1997 Act, there is no necessity to interfere with the sentence imposed in order to ameliorate its effect. The appellants are entitled to be considered for parole once they have served half or 25 years of their term of imprisonment, whichever is lesser.

[23]     In Mafoho v The State (149/12) 2012 ZASCA 49 (28 March 2013) in para 21 the court held as follows:

" This is not to say the sentence imposed by the regional court is appropriate (it clearly being a Methuselah sentence) but to interfere with it would, in the circumstances of this case, be purely academic because, as I have already indicated, the legislature has stepped in to ameliorate the position of the person subjected to that sentence, by directing that he or she will be considered for parole once 25 years of the sentence has been served. The appeal against sentence must therefore fail."

 

[24]      Similarly in the present case I accept as submitted by the respondent that the sentence imposed by the court a quo was not a misdirection. Having regard to the provisions of the 1997 Act and weighing them against the provisions of the Minimum Sentences Act and the fact that the court a quo deviated from the latter despite the seriousness of the crimes committed and previous convictions of the appellants, there is no basis on which this court can interfere with the sentence imposed.

[25]     The appellants' sentence is ameliorated not only by the deviation of the court a quo from the minimum sentence but also by the effect of the 1997 Act In all probability, the appellants would serve only half of the sentence handed down.

[26]     In the result I propose that the following order be made: The appeal against sentence is dismissed.

 

 

 

S.A.M. BAQWA

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION PRETORIA

 

 

I agree.

 

 

C. SWANEPOEL

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 

 

 

 

Heard on:                                      17 April 2018

Delivered on :                               17 April 2018

 

For the Applicant:                         Advocate M. M. P. Masete

Instructed by:                                Legal Aid

 

For the First Respondent:             Advocate S. Skeepers

Instructed by:                                The Director of Public Prosecutions, Pretoria

 

 

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