---

 

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 59/2022

 

Reportable:                                    YES / NO

Circulate to Judges:                       YES / NO

Circulate to Magistrates:                YES / NO

Circulate to Regional Magistrates: YES / NO

 

In the matter between:

 

SIBANDA HANDSOME PRINCE                                    Appellant

 

and

 

THE STATE                                                                     Respondent

 

 

CORAM:                                  HENDRICKS JP et PETERSEN J

 

DATE OF HEARING:               17 MARCH 2023

DATE OF JUDGMENT:            12 APRIL 2023

 

FOR THE APPELLANT:           MR. GONYANE

FOR THE RESPONDENT:       ADV. TLATSANA

 

 

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 12 April 2023.

 

 

ORDER

 

 

Resultantly, the following order is made:

 

(i)  Condonation for the late noting and prosecuting of the appeal is granted.

 

(ii)        The appeal against both conviction and sentence is dismissed.

 

(iii)      The conviction and sentence are confirmed.

 

 

JUDGMENT

 

 

HENDRICKS JP

 

Introduction

 

[1]    Mr. Handsome Prince Sibanda (the appellant) was arraigned before the Regional Court, Taung on a charge of rape read with the provisions of section 51 (1) and Part 1 of Schedule 2 of Act 105 of 1997. It was alleged that the complainant was raped more than once and that grievous bodily harm was inflicted, which brings the offence within the purview of section 51 (1) read with Part 1 of Schedule 2 of Act 105 of 1997. He was convicted and sentenced to twenty (20) years imprisonment. No order was made in terms of section 103 (1) of the Firearms Control Act 60 of 2000 and section 50 of the Criminal Law Amendment Act 105 of 1997. His name will consequently be included in the National Register for Sexual Offences. Leave to appeal was granted by the court a quo in respect of both the conviction as well as the sentence; hence this appeal.

 

Condonation

 

[2]    There is an application for condonation for the late prosecution of the appeal. An affidavit accompanying the Notice of Appeal and application for condonation which was deposed to by the appellant as deponent, was filed. It is quite apparent that the appellant was all-along desirous to prosecute his appeal. Leave to appeal was granted shortly after the matter was finalized by the trial court on 26 September 2022. The appellant cannot be blamed for the delay caused by the transcription of the record and he being transferred to Rooigrond Prison in Mahikeng. On 11 November 2022, he instructed his Legal Aid representative to note the appeal, which he states is against conviction only.

 

[3]    Condonation is not for the mere asking. The law on condonation is best summarised with reference to the oft quoted passage by Holmes JA in Melane v Santam Bank Insurance co. ltd 1962 (4) SA 531 (A) at 532 B-E where the following was stated:

 

"In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon the consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation thereof, the prospects of success, and the importance of the case. Ordinarily, those facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with true discretion, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of al/ the facts. Thus a slight delay and a good explanation may help to compensate for the prospects of success which are not strong. Or the importance of the issue and the strong prospects of success may tend to compensate for a long delay. "(See also Wynberg and Another (1998) SACR 18, 1998 (3) SA 34 (SCA) at 40 H-41 9"

 

[4]    The Supreme Court of Appeal (SCA) in Mulaudzi v Old Mutual Life Assurance Company (SA) Limited 2017 ZASCA 88 restated the factors that are to be given due consideration in a condonation application as stated in Melane, that:

 

“Factors which usually weigh with this court in considering an application for condonation include the degree of non-compliance, the explanation thereof, the importance of the case, the respondent's interest in the finality of the judgment of the court below, the convenience of this court and the avoidance of unnecessary delay in the administration of justice.”

 

[5]    In Grootboom v National Prosecuting Authority 2014 (2) SA 68 (CC) at paragraph [23] the following was said:

 

“It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court's indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the rules or court's directions. Of great significance, the explanation must be reasonable enough to excuse the default.”

 

The first ground of appeal

 

[6]    The Notice of Appeal consist of six (6) grounds of appeal, five (5) of which relate to the conviction and one (1) to sentence. I shall, for present purposes, only concentrate on the first ground of appeal which reads thus:

 

“1.    In convicting the appellant it will be argued that the trial court misdirected itself by failure to inform the appellant, before the commencement of trial, that it is a requirement of the law in terms of the provisions of section 2 of the Magistrate’s Court Act (“MCA”) 67 of 1998, that he must be assisted by two assessors, unless he (the appellant) request that the trial proceed without the assessors, and this rendered the trial unfair.”

(my emphasis)

 

Section 2 of the Magistrates’ Courts Act 67 of 1998

 

[7]    Before one can even venture into the facts, merits and demerits of the evidence tendered, this seminal point of law needs to be addressed. The focal point is thus whether the Regional Magistrate misdirected himself by failing to appoint two assessors in terms of section 2 of the Magistrates’ Courts Act 67 of 1998. The President assented to Act 67 of 1998 (the English text signed by the President) on 28 September 1998, which was published in Government Gazette (GG) 19323 of 7 October 1998. The date of commencement of Act 67 of 1998 was, however, still to be proclaimed by Proclamation in the Government Gazette. Section 6 of Act 67 of 1988 specifically provided that:

 

“6 Short title

 

(1)    This Act is called the Magistrates’ Courts Amendment Act, 1998, and shall take effect on a date fixed by the President by proclamation in the Gazette.

(2)    Different dates may be so fixed in respect of –

(a) different items contained in Schedule 2 to the principal Act; and

(b) different areas in the Republic.”

 

[8]    On 20 April 2000, two years after Act 67 of 1998 was assented to, Proclamation R24 was published in Government Gazette GG 21124 of 20 April 2000. Proclamation R24 reads as follows:

 

“No. R. 24, 2000 COMMENCEMENT OF THE MAGISTRATES’ COURTS AMENDMENT ACT 67 OF 1998 Under section 6 of the Magistrates’ Courts Amendment Act, 1998 (Act No. 67 of 1998), I hereby fix 20 April 2000 as the date on which section 2 of the said Act, in so far as it inserts section 93ter (10) and (11) in the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), and substitutes section 93ter (5) of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), shall come into operation.

 

Given under my Hand at Pretoria this Seventeenth day of April, Two thousand.

 

T. M. MBEKI

President

By Order of the President-in-Cabinet:

P. M. MADUNA

Minister of the Cabinet”

 

[9]    Therefore, only section 2 was put into operation with effect from 20 April 2000 in so far as it substitutes sub-section (5) and inserts sub-sections (10) and (11). Section 93ter (5), (10) and (11) of the Magistrates’ Courts Act 32 of 1944 deals with the oath or affirmation every assessor shall take upon registration on the roll of assessors (sub-section 5) and applications for recusal of an assessor (sub-section 10) and the death of an assessor (sub-section 11).

 

[10]  In so far as the ground of appeal states that “…it is a requirement of the law in terms of the provisions of section 2 of the Magistrate’s Court Act (“MCA”) 67 of 1998, that he (the learned Regional Magistrate) must be assisted by two assessors, unless he (the appellant) request that the trial proceed without the assessors, and this rendered the trial unfair.”, in respect of a charge of rape, this appears to be predicated rather on the substitution of section 93ter which was envisaged by section 1(a) of the Magistrates’ Courts Amendment Act, Act 118 of 1991. Under the heading “Substitution of Section 93 ter of Act 32 of 1944, as substituted by section 10 (2) of Act 91 of 1977 and amended by section 1 (a) of Act 118 of 1991”, the following is stated:

 

“2.    The following section is hereby substituted for section 93 ter of the principal Act:

“Magistrate to be assisted by assessors at certain criminal proceedings.

 

93 ter (1) In this section assessor means a person where name is registered on a roll of assessors, in terms of regulation referred to in section 93 quat.

 

(2) A judicial officer shall be assisted by two assessors at the trial of an accused person in respect of any offence referred to in Schedule 2.”

 

[11]  Schedule 2 states:

 

“Schedule 2

 

Offences in respect of which judicial officers must be assisted by two assessors in terms of section 93 ter (2):

 

1. Murder

2. Rape

3. Robbery, where serious bodily harm has been inflicted on the victim.

4. Assault, where serious bodily harm has been inflicted on the victim.

5. Indecent assault.”

 

[12]  Section 2 read with Schedule 2 of Act 117 of 1991, was never put into operation and similarly the remainder of section 93ter as substituted by section 2 of Act 67 of 1998, is still not operative and will seemingly never become operative. In this regard an amendment of section 93ter is pending in Parliament in which the peremptory requirement to sit with assessors in murder matters will no longer be a requirement. See: General Notice 1678 of 2023: Publication of Explanatory Summary of the Judicial Matters Amendment Bill, 2023 and the subsequent publication of the Judicial Matters Amendment Bill 7 of 2023.

 

[13]  It axiomatically follows that the amendments in terms of section 2 read with Schedule 2 of Act 67 of 1998 was never promulgated and is therefore not the current applicable law and will seemingly never be law. It was therefore not necessary for the learned Regional Magistrate to sit two assessors in this matter. This should take care of the point of law raised as the first ground of appeal. To dispel any confusion that section 93ter applies to offences other than murder, it is apposite to revisit the authorities from the Supreme Court of Appeal (SCA), this Division, as well as other Divisions of the High Court, which is well entrenched in respect of section 93ter as it presently stands.

 

[14]  In terms of these authorities, murder is the only offence for which it is compulsory for a Regional Magistrate to sit with two assessors. This is in terms of Section 93 ter of the MCA 32 of 1944, as amended.

See also:

 

Tsietsi Mmusi v The State (Case no CA55/2020)

Van Staden v S (CA 21/2017 [2018] ZANWHC 82 (26 April 2018).

S v Langalitsoni (CA 21/2017) [2018] ZANWHC 82 (26 April 2018).

Nxumalo v S (AR 263/2019 RC 51/2013) [2022] ZAKZDHC 23 (10 February 2022).

 

[15]  The Supreme Court of Appeal has removed any ambiguity in respect of the interpretation of section 93ter (1) in S v Gayiya 2016 [2] SACR 165 (SCA). In the recent judgment of Mntambo v S (478/20) [2021] ZASCA 17 (11 March 2021) the ratio in Gayiya was re-iterated by the SCA as follows:

 

“[9]   Until the judgment in S v Gayiya there were conflicting judgments in relation to the interpretation of s 93ter (1). This Court in Gayiya referred to Chala and Others v Director of Public Prosecutions, KwaZulu-Nata/ and Another, stating that the conflicting authorities had been succinctly dealt with in that case. In Gaviva, it was held that the appointment of assessors was peremptory, unless the accused requests, prior to him pleading to a charge of murder that the trial should proceed without assessors. Mpati P stated:

 

'In my view the issue in the appeal is the proper constitution of the court before which the accused stood trial. The section is peremptory. It ordains that the judicial officer presiding in a regional court before which an accused is charged with murder (as in this case) shall be assisted by two assessors at the trial, unless the accused requests that the trial proceed without assessors. It is only where the accused makes such a request that the judicial officer becomes clothed with a discretion either to summon one or two assessors to assist him or to sit without an assessor. The starting point, therefore, is for the regional magistrate to inform the accused, before the commencement of the trial, that it is a requirement of the law that he or she must be assisted by two assessors, unless he (the accused) requests that the trial proceed without assessors.

 

[10]     The court held that the failure to comply with the proviso resulted in the court not being properly constituted and it set aside the conviction and sentence. In Shange v S, Lewis JA referred to and endorsed Gayiya. She stated:

 

‘In S v Gayiya 2016 (2) SACR 165 (SCA) this court, referring to Chala v DPP, KwaZulu-Natal 2015 (2) SACR 283 (KZP) and the authorities discussed there, considered that where the regional magistrate had not sat with assessors, and the accused had not requested that the trial not proceed with assessors, the court was not properly constituted and that the convictions and sentences had to be set aside.

 

[11]     In the present matter, it is clear from the record of the proceedings that the appellant was not afforded an opportunity by the magistrate to decide whether to request that the trial proceed with or without assessors before he was asked to plead. It is common cause that there was non-compliance with the proviso to s 93ter (1) of the Act in that no assessors were appointed in terms of the proviso to the section and the appellant did not waive his right to such appointment. This is a fatal misdirection which vitiates the proceedings. The State properly conceded the point and accepted that the conviction and sentence should be set aside and the appellant immediately released from prison. The appeal must therefore succeed. "

(my emphasis and underlining)

 

[16]  In Tsietsi Mmusi v The State (Case No: CA55/2020), an unreported judgment of this Division, Petersen J postulates the following on the application of section 93ter at paragraphs [11], [13] and [14]:

 

"[11] The trial record reads as follows on the issue of the appointment of assessors:

 

"COURT: Part lI schedule 2. Let us deal with the assessors first. In your opinion, is there any need for assessors in this matter?

PROSECUTOR: No.

MR TLATSANA: None Your Worship.

COURT: Okay. I am of the opinion that it is not expedient in the administration of justice to have assessors appointed to assist this court. Part Il schedule 2. Right. If this court convicts you of the offence of murder sir, then a term of imprisonment for a first offender of 15 years shall be, of not less than 15 years shall be imposed upon you. For a second offender it is not less than 20 years. For a third and subsequent offender of not less than 25 years. Do you understand?

ACCUSED: Understood Your Worship. "

(my emphasis)

 

[13]  The appellant was not afforded an opportunity by the regional magistrate to indicate if he wanted the trial to proceed with assessors or not. The submission by his legal representative did not suffice for purposes of section 93ter (l)(a) of the MCA. The authorities from the Supreme Court of Appeal, by which this Court is bound, are clear, in that it constitutes a fatal misdirection which vitiates the proceedings.

 

[14]  The failure to comply with section 93ter (l)(a) in accordance with the authorities of the Supreme Court of Appeal has serious implications. It results in the trial being rendered unfair and a failure of justice. In the present matter it is clear that the issue of the assessors was only raised on the date of trial. It may be prudent that this very important issue be raised as early as the disclosure stage when copies of the docket and charges are discovered to the defence. Otherwise put it should be a crucial consideration during the pre-trial procedure before setting a trial date. It should be emphasized that what is required to give effect to the provisions of section 93ter (l)(a) of the MCA is essentially a brief enquiry where the accused is fully appraised of the implications of the said section, so as to make an informed decision. "

(my emphasis)

 

[17]  The approach adopted in Mmusi is not novel in this Division. In fact, the prevailing law in this Division, which echoes the law in the SCA, is succinctly set out in the unreported judgment of Van Staden v S (CA21/2017) [2018] ZANWHC 82 (26 April 2018), where Gutta J said:

 

“[6]   On readinq of the aforegoinq provisions it is clear that Section 93 is couched in peremptory terms, namely that a ludicial officer "shall" be assisted by two assessors unless the accused who is charged with murder requests that the trial proceed without assessors. Hence the appointment of assessors is compulsory unless the accused, prior to pleadinq, waives the need for assessors.

 

[7]    The starting point therefore. is for the Regional Magistrate to inform the accused before the commencement of the trial about the provisions of Section 93. It is only where an accused requests that the trial proceed without assessors. that the iudicial officer becomes clothed with a discretion either to summons one or two assessors to assist him or to sit without an assessor.

 

[8]    The appellant was not informed by the Regional Magistrate of his right to have assessors appointed and was not called upon to make a choice whether or not to request that the trial proceed without assessor before he was asked to plead to the charges.

 

[9]    Counsel for the State, Mr Moeketsi conceded this point and relied on the case of S v Nhlapo and Others to submit that failure to appoint assessors constitutes a gross irregularity. Mr Moeketsi submitted that because of the irregularities, the sentences of fifteen (15) years and life imprisonment imposed by the Court a quo should be set aside and that the proceedings should be declared void ab initio and should commence de novo before another presiding officer.”

 

[18]  The authorities in this Division which accords with the authorities of the SCA prevails in, inter alia, the Eastern Cape and Kwa-Zulu Natal. In S v Langalitshoni 2020 (2) SACR (EMC) by way of comparison, where one of the counts was murder, the following transpired between the Regional Magistrate and the legal representative of the appellant without engaging the appellant which the Court found vitiated the proceedings:

 

"[4]   The magistrate then addressed the legal representative of the appellant in the following manner:

 

“Yes [name], as I said there is no pre-trial conference, according to the charge sheet yes. among the counts there is a murder count, where the assessors are supposed to be there, are you qoinq to use the services of the assessors?”

 

The response was:

"No, your worship.

 

“[8]   The statement of the legal principle quoted in the preceding paragraph has the effect of creating an obligation on the part of a regional magistrate presiding over a trial involving a charge of murder. There are two essential obligations. The first is to inform the accused before the commencement of the proceedings what the peremptory provisions of the law require to ensure the proper constitution of the regional court. The second element is to inform the accused person that he or she may elect to proceed with the trial without assessors.

 

[9]    In my view, it is a relatively simple matter for a regional magistrate to discharge both elements of the obligation. What is required is a repetition of the legal principle quoted elsewhere in the judgment. Ideally: the communication of the legal principle should be made in a direct manner by the magistrate addressing the accused person who should be asked at that stage to indicate whether or not he be or she has been aware of the peremptory provisions. The legal representative of the accused person may then be asked by the magistrate to confirm the correctness of the answer given by the accused person. It is then necessary for the magistrate to ask specifically whether the accused person wishes to permit the trial to proceed without assessors. At this point a magistrate would not be criticized for giving a brief outline of the role played by assessors in a criminal trial. The magistrate ought to be satisfied that the answer given by the accused person demonstrates an appreciation of the nature of the question and reflects a reliable response in the circumstances. The accused person has a right to be tried in a fully constituted court. An election to proceed without assessors amounts to a waiver of such right. A waiver of a right cannot be achieved without knowledge thereof. That this is so should be checked with the accused and the legal representative.

 

[11]  In asking "are you going to use the services of the assessors", the magistrate is not conveying to the appellant that the proper constitution of the court requires that the magistrate ordinarily sit with two assessors. The question posed suggests that the court is constituted ordinarily by the regional magistrate sitting alone. It conveys the suggestion that the appellant's legal representative has a right to request the participation of assessors as an additional 'service'... what is required is an indication of whether or not the appellant elected to waive an existing right. One cannot simply assume that, because of the preamble contained in the magistrate's questioning, one can accept that both the magistrate and the legal representative knew that the right created thereby could be waived by the appellant and that the legal representative of the appellant was indeed unequivocally waiving the right created by the section. It is also of concern that the appellant was not addressed personally by the magistrate and that the correctness of his or her answer was not thereafter confirmed by the legal representative.”

(my emphasis and underlining)

 

[19]  In Nxumalo vs S (AR263/2019 RC51/2013) [2022] ZAKZDHC 23 (10 February 2022), Lopes J adopted a similar approach with reference, inter alia, to Langalitshoni, where he said:

 

“(4)       The record reveals that:

 

(a)        on the 26^th September 2013, Mr Zulu was appointed as the new attorney for both Mr Nxumalo and Mr Mdluli. The typed version of the record states that:

 

'Mr Zulu informed the court that the defence does not require the assessors.

 

(b)        on the 9^th December 2013, a pre-trial conference was held, and opposite the word 'Assessors' appears the manuscript recordal that 'Defence does not need assessors'. There is no indication that the pre-trial meeting was held in the presence of either the learned magistrate or Mr Nxumalo; and

 

(c)        When the trial commenced on the 31^st March 2014, the following was recorded:

 

'COURT Advocate Zulu maybe if you could just confirm this - that the defence does not require the assessors. / know that is what transpired during pre-trial conference. Is that still the position, they do not require?

 

MR ZULU Yes, that is correct, that is still the position.”

 

[5]             Nothing further was said on that subject, and Mr Nxumalo was not asked to confirm what his attorney had said, nor whether he wished to add anything. The authorities make it clear that the proviso to s 93ter(1) sets out the manner in which the court is normally to be constituted - the magistrate and two assessors, and unless an accused person requests the court not to sit with assessors, the court will not be properly constituted without assessors.

 

[6]             In S v Du Plessis 2012 (2) SACR 247 (GSJ), the court set out the importance of assessors, and found that the failure to consider to appoint assessors rendered the trial a failure of justice. The court, however, indicated that it would be sufficient to determine whether the need for assessors would be waived, if the presiding officer were to enter into discussions with the accused or his legal representative.

 

[9]             The crisp issue which arises in this matter is whether the communications with regard to the appointment of assessors between the prosecutor and Mr Zulu (in the pre-trial hearing), or the exchange in court between the learned magistrate and Mr Zulu were sufficient. Mr Nxumalo himself, was not involved in these discussions, save for being present when the learned magistrate spoke to Mr Zulu.

 

[10]         The proviso was never explained to Mr Nxumalo, and he never made a request not to sit with assessors. Whether his legal representative explained the proviso to him, is also not reflected on the record. Had that been the case, the learned magistrate could have engaged Mr Nxumalo so that he could have confirmed his understanding of the section, and his request not to have assessors.”

 

See too: Hlatshwayo and Another v State (AR 354/20) [2022] ZAKZPHC 8 (28 March 2022) at paras [4] - [171; Zulu v S (AR319/2021) [2022] ZAKZPHC 20 (13 May 2022) at paras [15] - [30].

 

I find the aforementioned dicta as so eloquently restated in Makgaila Kabelo Caswell v S, case number CA 91/2022 in this Division, quite opposite in this matter.

 

[20]  To re-iterate, whilst it may well be a valiant, honest attempt to attack the judgment of the court a quo on appeal, rape is not an offence envisaged by section 93ter.

 

The remaining grounds of appeal

 

[21] The second to fifth grounds of appeal reads thus:

 

“2.    That the trial court misdirected itself by paying a lip service on cautionary rule wherein the complainant was a single witness.

 

3.     That the trial court misdirected itself by finding that the complainant was honest, credible and to be relied upon and her evidence was sufficient to return conviction wherein her evidence contradicted the evidence of the state witnesses.

 

4.     That the trial court misdirected itself by finding that the appellant is guilty as charged on the offence of rape.

 

5.     That the trial court misdirected itself by failure to find that the appellant's version is reasonably possibly true in respect of all charges levelled against him when considering the fact that the appellant bears no onus to prove his case but for the state to prove its case beyond reasonable doubt.”

 

[22]  In order to deal with these grounds of appeal a brief exposé of the salient facts of the appeal is necessary. The complainant K[....]1 S[....] testified that on 16 February 2021, she was at home with her children and the appellant, who was her live-in partner. The appellant then left. When he returned he was intoxicated. He demanded food. Later on he left again. Upon his return he was making a noise. She reprimanded him not to make a noise because the baby was asleep. He then demanded to have sexual intercourse with the complainant. She refused because she was tired and was still having vaginal stitches as she recently gave birth. He persisted and undressed the complainant and himself. He caused her to lie on her back and he penetrated her vaginally with his penis. The complainant screamed and he caused her to change her position and to lie on her side. He then penetrated her vaginally from the back.

 

[23]  She managed to get up and said to him that she wanted to urinate. After she finished urinating, he started assaulting her with open hands on her face. He threw her down and penned her down and even stepped on her arm and on her stomach (trampling). The complainant was screaming. The neighbour K[....]2 heard the screams and she kicked the door open. This created a chance for the complainant to escape and ran to a nearby neighbour A[....]’s house. She was naked. She reported the rape incident and assault to A[....]. She was bleeding vaginally. She then went to the police station to elicit some help. She was still naked. She reported the incident at the police station. She went with the police officers to her house. The appellant was instructed to get into the police motor vehicle and the complainant went into the house to get dressed. They then went back to the police station.

 

[24]  She received medical attention the following day and a medical report was compiled and handed in as an exhibit (J88). The medical report supports and corroborate the complainants evidence about the assaults and rape, with vaginal bloodstained discharges and vaginal tears. K[....]2 also corroborates the version of the complainant in all material respects. So too did Aletta corroborate the evidence of the complainant in all material respects. Sergeant Sandlekayi, the police officer confirms that the complainant arrived at the police station on the evening of 16 February 2021 and made a report. She was naked. She was in the company of A[….].

 

[25]  The version of the appellant is to the effect that he and the complainant were cohabitating and were having a love relationship. A child was born from this relationship. On the day of the incident he was early from work. Upon his arrival at home, he did not find her. He went to look for her and enquired at a shebeen. He suspected her of infidelity. He received a report about the complainant’s whereabouts who happened to be next to the shebeen. He went and knocked. The door was opened and he saw the complainant lying naked in the bed of another man. He then asked for the baby. She gave him the baby and he left. He went back to his place. She followed him. He gave the child and left for his friend’s place. He returned later on that evening and confronted her. An argument ensued. He then assaulted her twice with open hands on her face and kicked her on her ribs. He denied having had sexual intercourse with the complainant.

 

[26]  The paucity of detail in the very scanty judgment on the merits is indeed strikingly. It consists of only five (5) pages of the trial record comprising of 247 pages. After a very brief summary of what clearly the Regional Magistrate termed to be the important evidence comprising of almost three-and-a-half (3¹/₂) pages, the following appears as the ratio decidendi of the court a quo on the remaining almost one-and-a-half (1¹/₂) pages:

 

“Now it is the duty of the state to prove its case beyond reasonable doubt what is expected from you as an accused person is to only give a reasonably possibly true story even if it is false.

 

Now inasfar as the sexual intercourse is concerned this Court is faced with the evidence of a single witness. Now when faced with evidence of a single witness cautionary rules must apply. The evidence should be clear and satisfactory in all material respect. As I have just indicated the act itself we are talking about the evidence of a single witness. am talking about the act of sexual intercourse. The intercourse itself we are talking about evidence of a single witness.

 

Now the second witness heard the screaming in the house. That is not in dispute.

 

But you deny that she left naked. Now the evidence by the complainant, second witness, third witness, fourth witness all are speaking one language in consort with regards to her being naked.

 

You say that the person that had sexual intercourse with her is related to her. That they are only related now they are all ganging or turning against you. Complainant says you know you are a violent person.

 

Now if one looks at the evidence that was handed in the J88 it talks about bruises that sustained. It is pain bruises or swelling pain on the arm and as well as her back.

 

I wondered what is it that the complainant would want to gain from falsely implicating you whereas you are in a relationship you have a child. You are supporting them.

The J88 is consistent with her testimony that she gave being penetrated when you are coming with a counter version to say yes she was in fact she had sex with another person. But now a person a woman or a mother of a three months old would she go to a tavern drink with the child with another man. Would they open if a person knocks would they open just being naked? That seems to

improbable.

 

I therefore reject your version that you deny having sex with the complainant. I accept the version or the state version that you assaulted the complainant. You also had sexual intercourse with her without her consent, and I find you guilty as charged.”

 

[27]  The jurisdictional facts which informs the “guilty as charge” verdict and which brings this matter within the purview of section 51 (1) read with Part 1 of Schedule 2 of Act 105 of 1997, is not specifically mentioned. The judgment is silent about a finding that sexual intercourse happened more than once, and it is only stated “you also had sexual intercourse with her without her consent, and I find you guilty as charged.”

 

[28]  Although not specifically mentioned as a ground of appeal, in his heads of argument it is contended:

 

“11.  In this case the trial court misdirected itself by finding that the appellant raped the complaint more than once.

 

11.1 The complainant testified that she was raped thrice but she could not tell the court how it came about that the appellant forcefully penetrate her on three different occasions.

 

11.2 It is clear from the evidence of the complainant that she was penetrated on the bed while lying on her back and then the appellant changed position by penetrating her from the back while lying on her side.

 

11.3 The change of position cannot be regarded as two separate counts, but be regarded as one continuous sexual round wherein position was changed.

 

11.4 Therefore the trial court misdirected itself by finding that the appellant is guilty as charged (raped the more than once) since the evidence shown that it was one continuous act though position was changed.”

 

This is indeed correct.

See: S v Blaauw 1999 (2) SACR 314 (W).

S v Tladi 2013 (2) SACR 287 SCA.

 

The finding or pronouncement in the judgment on sentence “that he committed acts of sexual penetration with the complainant 25 years old woman twice without her consent…” cannot be correct as it is not one of the jurisdictional facts found in the judgment on the merits/facts in terms of section 51 (1) of Act 105 of 1997, the so-called Minimum Sentence Act.

 

[29]  The only other possible jurisdictional fact that was mentioned, although not specifically pronounced on but merely in passing, is the following: “Now if one looks at the evidence that was handed in the J88 it talks about bruises that sustained. It is pain bruises or swelling pain on the arm as well as her back.” That this constitute rape where grievous bodily harm was inflicted suffice. The injuries sustained not merely those mentioned in the paucity of summarized evidence by the Regional Magistrate in his judgment, but by the evidence tendered as well as the contents of the medical report, the correctness of which was admitted, clearly brings this matter within the purview of section 51 (1) read with Part 1 of Schedule 2 of Act 105 of 1997.

 

[30]  The State did not present any evidence about vaginal swabs being taken for forensic analysis. The contention is that a negative inference needs to be drawn from the fact that such evidence was not produced by the State. There is no evidence presented that the DNA results were indeed available. Something which should have been canvassed during the trial. It is also not apparent that such results were deliberately withheld. This is but a neutral factor. The onus is on the State to prove the guilt of an accused person beyond reasonable doubt and not beyond any shadow of doubt. No negative inference can be drawn from the fact that the State did not present any DNA results as evidence.

 

[31]  To reiterate, the onus is on the State to prove the guilt of the accused beyond reasonable doubt. Looking holistically at the evidence presented, the following is apparent. It is common cause that the appellant assaulted the complainant on the evening in question. On her version, he assaulted her with open hands twice in her face. This much was admitted by the appellant. She testified that he “stamped” (trampled) on her stomach. According to him, he kicked her whilst she was standing. This was when he had shoes on his feet. That his actions were intended and did inflict grievous bodily harm is undoubtedly true. The assault on the complainant continued when she was raped so much so that she sustained vaginal injuries as a result of the sexual intercourse. This also need to be taken into account. According to the complainant, her vaginal stitches were torn and she was bleeding. The doctor recorded tears inside the complainant’s vagina with bloodstained discharge. This corroborated the evidence of the complainant. It is quite apparent that the complainant sustained serious/grievous bodily injuries as a result of being raped by the appellant. The appeal against conviction therefore stands to be dismissed.

 

[32]  Insofar as sentence is concerned, the powers of a court of appeal to interfere with the sentencing discretion of a trial court is very limited. Having found that this matter attracts the so-called Minimum Sentence Act 105 of 1997 provisions that finds application, the trial court remarked during it judgment on sentence that “the Court found that he committed acts of sexual penetration with the complainant 25 years old woman twice without the consent and that she sustained injuries as a result of that.” That the sexual encounter happened twice (more than once) was not attacked on appeal and as already alluded to earlier, is not a jurisdictional fact that was taken into account and pronounced on during the verdict. However, the trial court also remarked that “Section 51 (1) of the Criminal Law Amendment Act also applies because the complainant was raped violence was applied in the commission of the offence and in the words of Part 1 of Schedule 2 of the Prescribed Minimum Sentence Act you are liable to be sentenced to life imprisonment for this offence unless in terms of section 51 (3) there are substantial and compelling circumstances exist that justifies a less severe sentence.” Reliance was placed on S v Malgas 2001 (1) SACR 469 (SCA) and other caselaw.

 

[33]  The ground for appeal with regard to sentence is that if the      conviction on rape is set aside and replaced with a verdict of guilty on assault, that a wholly suspended sentence will be an appropriate sentence. As previously stated, the appeal against the conviction of rape cannot succeed. There is therefore no other valid ground of appeal against the sentence of twenty (20) years imposed by the Regional Magistrate. The Regional Magistrate took into account all the relevant factors, mitigating as well as aggravating, the personal circumstances of the appellant as well as the interest of society, in reaching a balanced, just and appropriate sentence. There is no misdirection.

 

[34]  A very important remark was made by the Regional Magistrate that needs repetition. He states:

 

“Ever since I came to Taung I have never been given or favoured with a victim impact statement. This is about her rights as being the victim. It is so disturbing to realise that we subject the complainants to secondary victimisation by not providing them with the care they deserve just like in any other victim in any jurisdiction in 20 South Africa.

 

I do not know when this aspect will be addressed in my jurisdiction. Well it goes without saying that our society considers rape to be a very serious matter indeed. Particularly as it is so prevalent and one in respect of which proper measure of retribution is called for.

 

This is so because it constitutes humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim like in the words of our first Chief Justice in the new democracy Chief Justice Mahomed.

 

Judge Goldstein in Ncheche case at paragraph 35 the case of Ncheche [2005] ZAGPHC 21; 2005 (2) SACR 386 (W) when Judge Goldstein described rape as an:

 

"Appalling and utterly outrages crime gaining nothing of any worth for the perpetrator and inflicting terrible and horrific suffering and outrage on the victim and her family".

 

Judge Goldstein proceeds to state that:

 

"A woman's body is sacrosanct and anyone who violates does so at his peril and our Legislature and the community at large expect courts to punish rapists very severely".

 

There was unfortunately no victim impact report submitted to me of this offence about the complainant, but one cannot downplay the traumatic effect this type of offence can have on the victim.

 

This complainant subjected to trauma because she travelled from her place being naked went to a neighbour the neighbour did not also provide her with something to wear to cover her body she travelled from the neighbours house to the police station being naked from the police station back to her house in the company of the police in a police vehicle being naked.

 

In the words of Judge Mpati in the case of S v Mahomotsa 2002 (2) SACR 17 he says Judge Mpati says described rape:

 

"As the worst category of offences and thus imprisonment should ordinarily be imposed on these kind of offences".”

 

This is indeed a matter of serious concern which needs to be addressed urgently with all the relevant stakeholders. This situation cannot be allowed to continue unabated.

 

Conclusion

 

[35]  The appeal against both conviction and sentence cannot succeed and should be dismissed.

 

Order

 

[36]  Resultantly, the following order is made:

 

(i)          Condonation for the late noting and prosecuting of the appeal is granted.

 

(ii)        The appeal against both conviction and sentence is dismissed.

 

(iii)      The conviction and sentence are confirmed.

 

 

R D HENDRICKS

JUDGE PRESIDENT OF THE HIGH COURT OF SOUTH AFRICA,

NORTH WEST DIVISION, MAHIKENG

 

I agree

 

A H PETERSEN

JUDGE OF THE HIGH COURT OF SOUTH AFRICA,

NORTH WEST DIVISION, MAHIKENG

 

 

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