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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, MAFIKENG

 

CASE NO:  CA 83/2019

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

In the matter between:

 

DINAKE HENDRIK GASEBUSE                                     Appellant

 

and

 

THE STATE                                                                     Respondent

           

CORAM: HENDRICKS JP et MFENYANA AJ

 

DATE OF HEARING                                   : 03 FEBRUARY 2023

DATE OF JUDGMENT                               : 27 FEBRUARY 2023

 

FOR THE APPELLANT                             : ADV. KEKANA

FOR THE RESPONDENT                         : ADV. MZAMO

 

JUDGMENT 

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 10h00 on 27 February 2023.

 

ORDER 

            Resultantly, the following order is made:

 

(i)           The appeal against sentence is upheld.

 

(ii)          The sentence of thirty (30) years imprisonment imposed by the Regional Court (Mr. Ndimande) is set aside and is substituted with the following sentence:

 

“Fifteen (15) years imprisonment”.

 

(iii)        The sentence is ante-dated to 18^th February 2009.

 

JUDGMENT 

HENDRICKS JP

 

Introduction

 

[1]        The appellant, Mr. Hendrik Gasebuse Dinake as accused 2, stood trial in the Regional Court, Klerksdorp together with his co-accused Mr. Petrus Buti Mongalaki as accused 1, on a charge of rape. They were both convicted and each sentenced to undergo an effective term of thirty (30) years imprisonment on 18^th February 2009. On 28^th October 2019, more than ten (10) years later, leave to appeal was granted to the appellant (as applicant) against the sentence of thirty (30) years imprisonment imposed upon him. This appeal therefore lies only against sentence.

 

[2]        The salient facts of this case can be succinctly summarized as follows. The complainant and her sister attended at a tavern on the day of the incident. An altercation ensued between the complainant’s sister and another lady, which caused the complainant to step outside the tavern. She was accosted by the appellant and his co-accused. The appellant throttled her and she was pulled to the homestead of accused 1. Behind the house, the appellant instructed her to undress whilst she was threatened with a knife. She reluctantly complied. The appellant then had sexual intercourse with the complainant without her consent. She was thereafter taken into the toilet and raped by the co-accused, accused1. They then took her back to the tavern. Because she was afraid of them she did not immediately inform her sister, but did so on the subsequent available opportunity.

 

[3]    A charge was laid at the police station and the complainant also underwent a gynaecological examination, for which a report was compiled. The sister to the complainant as the first report testified and corroborated the complainant’s version in material respects. The doctor who medically examined the complainant also testified and the medical report was presented as evidence. The doctor concluded that there was “evidence of forced vaginal penetration against resistance with penis”.

 

[4]     The appellant raised the defence of consent, whilst his co-accused denied having had sexual intercourse with the complainant. Their versions were rejected by the trial court and they were both found “guilty as charged”. The appeal against the sentence of thirty (30) years is assailed on the basis that the charge of rape was read with the provisions of section 51 (2) and not section 51 (1) of the Criminal Law Amendment Act 105 of 1997, as amended (CLAA), which has a bearing on the sentence that the trial court, as a Regional Court, could have imposed with regard to this Act. So too, was the pre-sentence detention of the appellant not taken into consideration when the sentence was imposed.

 

[5]     A close examination of the charge as contained in the charge sheet is necessary. The charge embodied in Annexure “A” reads as follows:

 

“THAT the accused is/are guilty of the crime of contravening the provisions of Section 3 read with Section 1, 56 (1), 57, 58, 59, 60 and 61 of the Sexual Offences Act 32/2007 – RAPE (read with the provisions of Section 51 (2) and/or 52 and Schedule 2 of the Criminal Law Amendment Act 105 of 1997, as amended).

 

IN THAT on or about the 10/02/2008 and at or near Kanana in the Regional Division of NORTH WEST the said accused did unlawfully and intentionally commit an act of sexual penetration with the complainant to wit Rebecca Nthotsho by having sexual intercourse without the consent of the said complainant.

 

*Section 51 (2) and Schedule 2 of the Criminal Law Amendment Act 105 of 1997, as amended I applicable in that:

 

*Delete if not applicable

Definition of Section 3

 

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

 

It is quite apparent that the charge sheet, defective as it is, refers to section 51 (2).

 

[6]        When the prosecutor Mr. Van Biljon put the charge to the accused on 27 February 2008, he stated the following:

 

“The charge against both accused is one of rape. It is alleged that both the accused rapes [sic] a girl of sixteen (16) years of age.”

 

 The following appears on record:

 

“COURT:       Gentlemen the state intend to charge both of you with rape read with the provisions of the Minimum Sentence Legislation.

 

The provisions of this legislation had stipulated that if a victim is raped by more than one person’s then upon conviction the appropriate sentence is life imprisonment. Therefore, if you happen to be convicted here and the state succeeds in proving that both of you raped the complainant you must expect that you will be sentenced to life imprisonment unless the Court finds the existence of substantial and compelling circumstances.

 

In the light of the seriousness of the offence you are therefore encouraged to obtain the services of any attorney who would assist you in this matter. If you cannot afford to pay the attorney you are advised to approach the legal aid board for assistance. If your application is successful you will be assigned and obtain at state’s expenses, meaning that you are not going to pay for that attorney or if you which you can conduct you own defence.”

 

            The appellant and his co-accused opted to be legally represented at State expenses. The charge sheet was however not amended.

 

[7]        The matter was remanded to 17 June 2008. On the remand date, the following transpired as evidence on record:

 

“PROSECUTOR:     case nr RC2/85/2008 state vs. Petrus Mongalaki and Hendrik Dinake. Today is 17 June 2008. Presiding Officer is Mr Nzimande, Prosecutor Mr van Biljon, interpreter Mr Mabunda and Mr Masoetsa appears for both accused.

 

 The charge against both accused Your Worship is one of rape in that on or about 10 February 2008 and at or near Kanana in the Regional Division of North West the said accused did unlawfully and internationally committed an act of sexual penetration with the complainant to wit R[...] N[...] by having sexual intercourse without the consent of the said complainant.”

 

As alluded to earlier, both the appellant (as accused 1) and his co-accused were tried and were convicted.

 

[8]    In his judgment on sentence, the Regional Magistrate Mr. Ndimande, stated the following:

 

“Both of you have been convicted of a serious crime rape. And what makes this is that the complainant was raped by the two of you one after the other.”

                                                and

“Because the complainant was raped by both of you the law provides that upon conviction the Court must impose a sentence of life imprisonment unless I find the existence of substantial and compelling circumstances.”

                                                And furhter

 

“However being that as it may I will record as substantial and compelling being the fact that you are still young and that perhaps though there is no evidence of rehabilitation perhaps there may be still a prospect of you being rehabilitated, but that does not deters from the fact that is an offence for which the legislator had prescribed life imprisonment.

 

It is the opinion of this Court that a lengthy time of imprisonment is wanted. As a result it is the opinion of this Court that the appropriate sentence is:

 

            ACCUSED 1 THIRTY YEARS IMPRISONMENT

 

            ACCUSED 2 THIRTY YEARS IMPRISONMENT

 

Further more you are both declared unfit to possess a firearm in terms of the Firearms Control Act 60/2000.”

 

[9]        Section 51 of the Criminal Law Amendment Act reads:

 

“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-

 

(a)          Part II of Schedule 2, in the case of-

 

(i)         a first offender, to imprisonment for a period not less than 15 years;

 

(ii)        a second offender of any such offence, to imprisonment for a period not less than 20 years; and

 

(iii)       a third or subsequent offender of any such offence, to imprisonment for a period not less than 25 years;

 

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

 

(i)            a first offender, to imprisonment for a period not less than 10 years;

 

(ii)          a second offender of any such offence, to imprisonment for a period not less than 15 years; and

 

(iii)       a third or subsequent offender of any such offence, to imprisonment for a period not less than 20 years; and

 

(c)          Part IV of Schedule 2, in the case of-

 

(i)            a first offender, to imprisonment for a period not less than 5 years;

 

(ii)          a second offender of any such offence, to imprisonment for a period not less than 7 years; and

 

(iii)         a third or subsequent offender of any such, offence, to imprisonment for a period not less than 10 years:

 

Provided that the maximum term of imprisonment that a regional court may impose in terms of this subsection shall not exceed the minimum term of imprisonment that it must impose in terms of this subsection by more than five years.

 

(3) (a) If any court referred to in subsection (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and must thereupon impose such lesser sentence: Provided that if a regional court imposes such a lesser sentence in respect of an offence referred to Part 1 of Schedule 2, it shall have jurisdiction to impose a term of imprisonment for a period not exceeding 30 years.

                                                (emphasis added)

 

(a A) When imposing a sentence in respect of the offence of rape the following shall not constitute substantial and compelling circumstances justifying the imposition of a lesser sentence:

 

(i)            The complainant's previous sexual history;

 

(ii)          an apparent lack of physical injury to the complainant;

 

(iii)         an accused person's cultural or religious beliefs about rape; or

 

(iv)         any relationship between the accused person and the complainant prior to the offence being committed.

 

(4) ......

 

[Sub-s. (4) omitted by s. 1 of Act 38 of 2007.]

 

(5) (a) Subject to paragraph (b), the operation of a minimum sentence imposed in terms of this section shall not be suspended as contemplated in section 297 (4) of the Criminal Procedure Act, 1977 (Act 51 of 1977).

 

(b) Not more than half of a minimum sentence imposed in terms of subsection (2) may be suspended as contemplated in section 297 (4) of the Criminal Procedure Act, 1977, if the accused person was 16 years of age or older, but under the age of 18 years, at the time of the commission of the offence in question.

 

(6) This section does not apply in respect of an accused person who was under the age of 16 years at the time of the commission of an offence. contemplated in subsection (1) or (2).

 

(7) If in the application of this section the age of an accused person is placed in issue, the onus shall be on the State to prove the age of that person beyond reasonable doubt.

 

(8) For the purposes of this section and Schedule 2, 'law enforcement officer' includes-

 

(a)          a member of the National Intelligence Agency or the South African Secret Service referred to in section 3 of the Intelligence Services Act, 2002 (Act 65 of 2002); and

 

(b)       a correctional official of the Department of Correctional Services or a person authorised under the Correctional Services Act, 1998 (Act 111 of 1998).

 

(9) The amounts mentioned in respect of the offences referred to in Part II of Schedule 2 to the Act, may be adjusted by the Minister from time to time by notice in the Gazette.

 

[S. 51 amended by s. 33 of Act 62 of 2000 and by s. 36 (1) of Act 12 of 2004 and substituted by s. 1 of Act 38 of 2007.]

 

[Date of commencement of s. 51: 1 May 1998.]”

 

[10]      Part 1 of Schedule 2 provides:

 

“[Part I amended by s. 37 of Act 62 of 2000 and by s. 27 (1) of Act 33 of 2004, substituted by s. 68 of Act 32 of 2007 and amended by s. 5 (a) of Act 38 of 2007 and by s. 22 of Act 66 of 2008]

 

Murder, when-

 

(a)       it was planned or premeditated;

 

(b)       the victim was-

 

(i)            a law enforcement officer performing his or her functions as such, whether on duty or not; or

 

(ii)          a person who has given or was likely to give material evidence with reference to any offence referred to in Schedule 1 to the Criminal Procedure Act, 1977 (Act 51 of 1977), at criminal proceedings in any court;

 

(d)          the death of the victim was caused by the accused in committing or attempting to commit or after having committed or attempted to commit one of the following offences:

 

(i)            rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively; or

 

(ii)          robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act, 1977 (Act 51 of 1977);

 

(e)          the offence was committed by a person, group of persons or syndicate acting in the execution or furtherance of a common purpose or conspiracy;

 

(f)           the victim was killed in order to unlawfully remove any body part of the victim, or as a result of such unlawful removal of a body part of the victim; or

 

[Para. (e) added by s. 5 (a) of Act 38 of 2007.1

 

(g)          the death of the victim resulted from, or is directly related to, any offence contemplated in section 1 (a) to (e) of the Witchcraft Suppression Act, 1957 (Act 3 of 1957 ).

 

[Para. (f) added by s. 5 (a) of Act 38 of 2007.]

 

Rape as contemplated in section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007-

 

(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;

(emphasis added)

 

(ii)          by more than one person, where such persons acted in the execution or furtherance of a common purpose or conspiracy;

 

(iii)         by a person who has been convicted of two or more offences of rape or compelled rape, but has not yet been sentenced in respect of such convictions; or

 

(iv)         by a person, knowing that he has the acquired immune deficiency syndrome or the human immunodeficiency virus;

 

(b)          where the victim-

 

(i)         is a person under the age of 16 years;

 

(ii)          is a physically disabled person who, due to his or her physical disability, is rendered particularly vulnerable; or

 

(iii)         is a person who is mentally disabled as contemplated in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007; or

 

(c)          involving the infliction of grievous bodily harm.

 

Compelled rape as contemplated in section 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007-

 

(a)          when committed-

 

(i)         in circumstances where the victim was raped more than once by one or more than one person;

 

(ii)          by a person who has been convicted of two or more offences of rape or compelled rape, but has not yet been sentenced in respect of such convictions; or

 

(iii)         under circumstances where the accused knows that the person committing the rape has the acquired immune deficiency syndrome or the human immunodeficiency virus;

 

(b)          where the victim-

 

(i)         is a person under the age of 16 years;

 

(ii)          is a physically disabled person who, due to his or her physical disability, is rendered particularly vulnerable; or

 

(iii)         is a person who is mentally disabled as contemplated in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007; or

 

(c)          involving the infliction of grievous bodily harm.

 

Any offence referred to in section 2, 5, 6, 7, 8, 9, 10 or 14 (in so far as it relates to the aforementioned sections) of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004, when it is proved that the offence has-

 

(a)          endangered the life or caused serious bodily injury to or the death of, any person, or any number or group of persons;

 

(b)       caused serious risk to the health or safety of the public or any segment of the public; or

 

(c)          created a serious public emergency situation or a general insurrection.

 

Trafficking in persons for sexual purposes by a person contemplated in section 71 (1) or (2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.

 

Any offence referred to in Part I or Part II of Schedule 1 to the Implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act 27 of 2002).

 

[NB: An item has been added by s. 14 (1) of the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act 27 of 2006, a provision which will be put into operation by proclamation. See PENDLEX.]”

(emphasis added)

 

[11]      Part III of Schedule 2 provides:

 

“[Part III substituted by s. 68 of Act 32 of 2007.]

 

Rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively in circumstances other than those referred to in Part I.

 

Sexual exploitation of a child or sexual exploitation of a person who is mentally disabled as contemplated in section 17 or 23 or using a child for child pornography or using a person who is mentally disabled for pornographic purposes, as contemplated in section 20 (1) or 26 (1) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.

 

Assault with intent to do grievous bodily harm on a child under the age of 16 years.

 

Any offence in contravention of section 36 of the Arms and Ammunitions Act, 1969 (Act 75 of 1969), on account of being in possession of more than 1000 rounds of ammunition intended for firing in an arm contemplated in section 39 (2) (a) (i) of that Act.

 

Any trafficking related offence by a commercial carrier as contemplated in section 71 (6) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.”

(emphasis added)

 

[12]      The contention on behalf of the appellant is that the charge sheet make specific reference to section 51 (2) and not section 51 (1). Therefore, so it was further contended, the trial court erred in finding that the sentencing provisions of section 51 (1) and not section 51 (2) find application. There is a plethora of caselaw regarding this aspect. In particular, it must be emphasized that an accused in a criminal trial has a constitutionally entrenched right to a fair trial, which includes the right to be informed with sufficient particularity of the charge proffered against him/her.

 

[13]      In S v Ndlovu 2017 (2) SACR 305 (CC) the following is stated:

 

[23]      This matter raises two key issues:

 

(a)          First, did the Regional Court have jurisdiction to sentence Mr Ndlovu in terms of section 51(1) of the Minimum Sentencing Act?

 

(b)          Second, if the Regional Court was so empowered, did sentencing Mr Ndlovu in terms of section 51(1) when he had been charged with rape, read with section 51(2), infringe his right to a fair trial?

 

                                          and

 

[38]            As stated above, the threshold question is whether the Regional Court had jurisdiction to sentence Mr Ndlovu in terms of section 51(1) of the Minimum Sentencing Act.  Section 51 of the Minimum Sentencing Act sets out minimum sentences applicable to certain offences.  Section 51(1) provides:

 

“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.”

 

Part I of Schedule 2 includes reference to rape involving the infliction of grievous bodily harm.[1]

 

[39]            Section 51(2)(b) provides for minimum sentences for a range of offences referred to in Part III of Schedule 2.[2]  The minimum sentence for a conviction of rape under Part III of Schedule 2 varies from 10 to 20 years, depending on whether the convicted person has committed previous offences.[3]

 

[40]            Section 51(2) further provides that “the maximum term of imprisonment that a regional court may impose in terms of [subsection 2] shall not exceed the minimum term of imprisonment that it must impose in terms of [subsection 2] by more than five years”.

 

[41]            It is trite that Magistrates’ Courts are creatures of statute and have no jurisdiction beyond that granted by the Magistrates’ Courts Act and other relevant statutes.[4]  Because Mr Ndlovu was treated as a first offender,[5] under section 51(2) the sentencing jurisdiction of the Regional Court was limited to a maximum of 15 years’ imprisonment.  The Regional Court, however, sentenced Mr Ndlovu to life imprisonment under section 51(1), which it would have had the power to do only if the application of the section was triggered.

 

[42]            In terms of section 51(1) of the Minimum Sentencing Act, the Regional Court would have had jurisdiction to sentence Mr Ndlovu to life imprisonment only if it had convicted him of an offence referred to in Part I of Schedule 2.  The question is thus whether Mr Ndlovu was convicted of an offence referred to in Part I of Schedule 2.

 

[43]            When handing down its judgment convicting Mr Ndlovu, the Regional Court first made reference to the fact that Mr Ndlovu was charged with rape read with section 51(2) of the Minimum Sentencing Act.  The Regional Court then recounted all of the evidence put before it, and finally concluded:

 

“The evidence of the complainant is satisfactory in all materials.  There is no evidence to suggest that she is not honest or [is biased].  Therefore the Court is satisfied with the manner in which the complainant testified.  Therefore the accused is FOUND GUILTY AS CHARGED as his version is not possibly true.”

 

[44]            The Magistrate’s statement that the accused is found “guilty as charged” is unambiguous. Mr Ndlovu was convicted of “rape read with the provisions of [s]ection 51(2)”. This means that he was convicted of an offence referred to in Part III of Schedule 2 – not an offence referred to in Part I of Schedule 2.

 

[45]            The Magistrate was aware that the charge was “rape read with the provisions of [s]ection 51(2)” and specifically found Mr Ndlovu “guilty as charged”.  This wording simply does not permit an interpretation that the Magistrate in fact convicted Mr Ndlovu of rape contemplated in section 51(1).  Nor does the evidence of the complainant’s injuries automatically cure the charge in terms of section 51(1), as posited by the state.  A defective, or incomplete, charge may be remedied by evidence in some instances by section 88 of the Criminal Procedure Act.>[6]  However, this charge was complete and not defective.  Quite simply, the charge was not rape involving the infliction of grievous bodily harm and evidence alone could not make it so.[7]

 

[46]            In the light of this, I can do nought but conclude, inexorably, that the Regional Court did not have jurisdiction to impose life imprisonment in terms of section 51(1) of the Minimum Sentencing Act.  Mr Ndlovu was convicted of rape, read with section 51(2); accordingly, the Regional Court was required in terms of section 51(2) to impose a minimum sentence of 10 years (as he was treated as a first offender).[8]  The Regional Court’s jurisdiction was limited in terms of section 51(2) to imposing a maximum sentence of 15 years.[9]

 

[47]            In the result, because the Regional Court did not have jurisdiction to sentence Mr Ndlovu in terms of section 51(1), his application must succeed.  In the circumstances, it is unnecessary to consider the fair trial question.

 

and further

 

[50]            As Mr Ndlovu was treated as a first offender in respect of this offence, the minimum applicable sentence was 10 years’ imprisonment.  The maximum sentence that could have been imposed by the Regional Court was 15 years’ imprisonment.  Rape is a serious offence.  It is, in and of itself, a deeply destructive and dehumanising act.[10]  The circumstances of this rape were especially heinous.  Mr Ndlovu threatened to kill the victim, and then viciously and mercilessly assaulted and raped her.  Following the attack, the victim was admitted to hospital for five days.

 

[51]            These circumstances elevate the seriousness of the offence so that the minimum sentence of 10 years’ imprisonment is grossly inadequate.  Indeed, the legislature has indicated in perspicuous terms, by the enactment of section 51(1) of the Minimum Sentencing Act, that a sentence of life imprisonment is most appropriate in comparable cases.

 

[52]            The appropriate and proportionate sentence to be imposed in the circumstances is the maximum sentence that the Regional Court could have imposed following the conviction of rape read with section 51(2) of the Minimum Sentencing Act: 15 years’ imprisonment.

 

The responsibilities of prosecutors and the courts

 

[53]            Mr Ndlovu’s crime is just one instance of one of the most harrowing and malignant crimes confronting South Africa today – rape.  Rape is perhaps the most horrific and dehumanising violation that a person can live through and is a crime that not only violates the mind and body of a complainant, but also one that vexes the soul.  This crime is an inescapable and seemingly ever-present reality and scourge on the nation and the collective conscience of the people of South Africa.

 

[54]            Despite my finding in this matter, there is nothing before me to indicate that Mr Ndlovu’s blameworthiness for this deplorable crime is in any way diminished. This is a case where the state’s remissness has failed the complainant and society.

 

[55]            Section 165 of the Constitution vests judicial authority in the courts and nowhere else.[11]  They are the gate-keepers of justice.  The evidence of the injuries sustained by the complainant should have alerted the Magistrate that the appropriate charge should have been rape read with section 51(1) of the Minimum Sentencing Act: rape involving the infliction of grievous bodily harm.  Furthermore, the acceptance of the evidence relating to the infliction of grievous bodily harm should have made it clear to the Magistrate that the crime fell squarely within the ambit of section 51(1) of the Minimum Sentencing Act.

 

[56]            In this case, the Magistrate could have and should have taken steps to ensure that Mr Ndlovu was prosecuted or convicted in terms of the correct provision of the Minimum Sentencing Act.  Courts are expressly empowered in terms of section 86 of the Criminal Procedure Act to order that a charge be amended.[12]  Upon realising that the charge did not accurately reflect the evidence led, it was open to the Court at any time before judgment to invite the state to apply to amend the charge and to invite Mr Ndlovu to make submissions on whether any prejudice would be occasioned by the amendment.  This the Magistrate failed to do.  It was only after conviction, at sentencing, that she sought to invoke the correct provision.  This failure is directly implicated in the finding made in this judgment.

 

and furthermore

 

[58]            When even the most heinous of crimes are committed against persons, the people cannot resort to self-help: they generally cannot prosecute the perpetrators of these crimes on their own behalf.[13]  This power is reserved for the NPA.  It is therefore incumbent upon prosecutors to discharge this duty diligently and competently.  When this is not done, society suffers.  In this case the prosecutor failed to ensure that the correct charge was preferred against Mr Ndlovu.  The prosecutor was from the outset in possession of the J88 form in which the injuries sustained by the complainant were fully described. It boggles the mind why the proper charge of rape read with the provisions of section 51(1) of the Minimum Sentencing Act was not preferred.  This can only be explained as remissness on the part of the prosecutor that, further, should have been corrected by the Court.  This error is acutely unfortunate – victims of crime rely on prosecutors performing their functions properly.  The failings of the prosecutor are directly to blame for the outcome in this matter.

(emphasis added)

 

[14]      I find the dictum in S v Ndlovu, supra, quite apposite in this case. The prosecutor, one Mr. Van Biljon, should have prepared the charge sheet properly and should have specified that section 51 (1) and not section 51 (2) finds application. This amounts to a miscarriage of justice. So too, did the Regional Magistrate not amend the charge in terms of section 86 of the CPA as he was obliged to do. He must have been aware of the defect in the charge sheet and although he warned the appellant and his co-accused, he did so in terms of the wrong provisions and section of the CLAA. This too amounts to a miscarriage of justice.

 

[15]      There is also an application for condonation for the late prosecution of this appeal. As alluded to earlier, the case was finalized on 18^th February 2009. More than ten (10) years later, on 28^th February 2019, was an application made for leave to appeal, which was granted. There is an attempt to explain this delay, although not in minute detail. It appears however that from the onset, the appellant (applicant) was desirous to prosecute his appeal. There are however good prospects of success on appeal, which compensate for the flimsy and undetailed explanations. Condonation for the late prosecution of the appeal should therefore be granted.

 

[16]      It goes without saying that the sentence prescribed by the Legislature is different from that imposed by the Regional Magistrate. Due to the material misdirection by the trial court in convicting the appellant (“guilty as charge”) and imposing a sentence in terms of section 51 (1) read with Part 1 of Schedule 2 instead of section 51 (2) read with Part III of Schedule 2, this Court is at liberty to consider the sentence afresh.

 

[17]      From the record it appears that the appellant has a previous conviction of housebreaking with intent to steal and theft committed on 1^3th July 2000. Although this previous conviction dates back to 2000, as on the date that he was convicted (18^th February 2009), a period of ten (10) years hadn’t lapsed. However, the offence of housebreaking with intent to steal and theft is a distinctly different crime or offence than rape. So, it is not that the appellant committed a similar type of offence. The appellant should therefore be treated as a first offender. The sentence prescribed is ten (10) years imprisonment to a maximum of fifteen (15) years in terms of section 51 (2) of CLAA.

 

[18]      In the heads of argument filed on behalf of the appellant, the following appears in paragraph [11] thereof:

 

“11.     The court a quo failed to take into account the fact that no gratuitous violence was used except for the violence of the rape itself. This is not to say the lack of physical injuries per se constitute a substantial and compelling circumstances but rather the submission is made that all mitigating and aggravating factor should be equally weighed before sentence is meted out.”

[sic]

 

[19]      I find the following dictum in Maila v The State (429/2022) [2022] ZASCA 3 (23 January 2023) quite apposite to this submission, where it is stated:

 

“[48]    The Legislature has specifically amended the Criminal Law Amendment Act to provide categorically that the fact that a complainant was not injured during a rape cannot be considered as compelling or substantial. In terms of s 51(3)(aA) of Act 105 of 1997, which came into operation in December 2007:

 

‘When imposing a sentence in respect of the offence of rape the following shall not constitute substantial and compelling circumstances justifying the imposition of a lesser sentence:

….

(ii)        an apparent lack of physical injury to the complainant;

….

(iv)       any relationship between the accused person and the complainant prior to the offence being committed.’

 

                                                                        and

 

[59]      Taking into account Jansen, Malgas, Matyityi, Vilakazi and a plethora of judgments which follow thereafter as well as regional and international protocols which bind South Africa to respond effectively to gender-based violence, courts should not shy away from imposing the ultimate sentence in appropriate circumstances, such as in this case. With the onslaught of rape on children, destroying their lives forever, it cannot be ‘business as usual’. Courts should, through consistent sentencing of offenders who commit gender-based violence against women and children, not retreat when duty calls to impose appropriate sentences, including prescribed minimum sentences. Reasons such as lack of physical injury, the inability of the perpetrator to control his sexual urges, the complainant (a child) was spared some of the horrors associated with oral rape, which amount to the acceptance of the real rape myth, the accused was drunk and fell asleep after the rape, the complainant accepted gifts (in this case, sweets) are an affront to what the victims of gender-based violence, in particular rape, endure short and long term. And perpetuate the abuse of women and children by courts. When the Legislature has dealt some of the misogynistic myths a blow, courts should not be seen to resuscitate them by deviating from the prescribed sentences based on personal preferences of what is substantial and compelling and what is not. This will curb, if not ultimately eradicate, gender-based violence against women and children and promote what Thomas Stoddard calls ‘culture shifting change’.^[14]

(emphasis added)

 

           However, the appellant in the present case was not charged with rape where grievous bodily harm was inflicted.

 

[20]      Taking into account the circumstances under which this offence was committed, the aggravating features present in this matter, as well as the mitigating features and personal circumstances of the appellant, I am of the view that a sentence of fifteen (15) years will be a fair and just sentence. I am also of the view that having regard to the effluxion of time, the sentence should be antedated.

 

Order

 

[21]      Resultantly, the following order is made:

 

(i)           The appeal against sentence is upheld.

 

(ii)          The sentence of thirty (30) years imprisonment imposed by the Regional Court (Mr. Ndimande) is set aside and is substituted with the following sentence:

 

“Fifteen (15) years imprisonment”.

 

(iii)        The sentence is ante-dated to 18^th February 2009.

 

R D HENDRICKS

JUDGE PRESIDENT OF THE HIGH COURT OF SOUTH AFRICA,

NORTH WEST DIVISION, MAHIKENG

I agree

S MFENYANA

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA,

NORTH WEST DIVISION, MAHIKENG

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[1] See Schedule 2 to the Minimum Sentencing Act, Part I, paragraph (c) under “Rape” at n 4 above.

[2] See section 51(2) at n 2 above.

[3] Id.

[4] Riversdale Divisional Council v Pienaar  (1885) 3 SC 252 at 256; and Stork v Stork  (1903) 20 SC 138 at 139.

[5] During sentencing the Magistrate stated that for the purposes of sentencing the Court would regard Mr Ndlovu as a first offender.  Therefore the minimum sentence applicable under section 51(2)(b) would have been 10 years.  In terms of the proviso to section 51(2) (see 0 above), the maximum term of imprisonment that the Regional Court could impose under section 51(2) is the applicable minimum sentence (10 years) plus five years – 15 years.

[6] 51 of 1977 (Criminal Procedure Act).  Section 88 provides:

“Where a charge is defective for the want of an averment which is an essential ingredient of the relevant offence, the defect shall, unless brought to the notice of the court before judgment, be cured by evidence at the trial proving the matter which should have been averred.”

[7] I note that the existence of aggravating factors does not create a separate offence and therefore rape involving grievous bodily harm is not a separate offence to rape not involving grievous bodily harm.  See Minister of Justice and Constitutional Development v Masingili [2013] ZACC 41; 2014 (1) SACR 437 (CC); 2014 (1) BCLR 101 (CC).  The issue in this matter is that the Magistrate convicted Mr Ndlovu “as charged” and he was charged with the offence of rape, without reference to the aggravating factor of grievous bodily harm.

[8] See above n 28.

[9] See discussion at 0, read with n 28.

[10] To borrow the words of Mahomed CJ in S v Chapman [1997] ZASCA 45; 1997 (3) SA 341 (SCA) at 344: rape is a “humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim”.

[11] Justice Alliance of South Africa v President of Republic of South Africa, Freedom Under Law v President of Republic of South Africa, Centre for Applied Legal Studies v President of Republic of South Africa [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10) BCLR 1017 (CC) at para 34.

[12] Section 86 relevantly provides:

“(1)       Where a charge is defective for the want of any essential averment therein, or where there appears to be any variance between the averment in a charge and the evidence adduced in proof of such averment, or where it appears that words or particulars that ought to have been inserted in the charge have been omitted therefrom, or where any words or particulars that ought to have been omitted from the charge have been inserted therein, or where there is any other error in the charge, the court may, at any time before judgment, if it considers that the making of the relevant amendment will not prejudice the accused in his defence, order that the charge, whether it discloses an offence or not, be amended, so far as it is necessary, both in that part thereof where the defect, variance, omission, insertion or error occurs and in any other part thereof which it may become necessary to amend.

(2)        The amendment may be made on such terms as to an adjournment of the proceedings as the court may deem fit.” (My emphasis)

[13] In the event that the Director of Public Prosecutions declines to prosecute an alleged offence,  a private person with a substantial and peculiar interest in a matter may apply to the NPA for a certificate nolle prosequi (refusal to prosecute) in terms of section 7(1)(a) of the Criminal Procedure Act.  This certificate is required for a private person to institute a private prosecution, however instituting a private prosecution is prohibitively expensive.

^[14] Thomas B Stoddard ‘Bleeding heart: Reflections on using the law to make social change’ (1997) 72 New York University LR 967 at 971.

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