On appeal from:Limpopo High Court, Thohoyandou (Hetisani J sitting as the sentencing court):
1. The appeal against conviction is dismissed.
2. The appeal against sentence is upheld.
3. The sentence of 30 years imprisonment imposed by the court below is replaced with 15 years imprisonment, antedated to 13 October 2001.
JUDGMENT
WILLIS JA (MAYA, SHONGWE, PILLAY JJA and ZONDI AJA concurring):
[1] This is an appeal against the conviction and sentence of 30 years imprisonment on a count of rape of a nine-year old girl. The appellant was arraigned before the Regional Court at Thohoyandou. The allegations against him were that he had sexual intercourse with a child without her consent at the Fandani Village on 29 January 2001.
[2] There are certain deficiencies in the record. Most troubling is that parts thereof are missing. Nevertheless, after some debate and the granting by this court of a number of different applications for condonation with the concurrence of the opposing sides, there was sufficient clarity for this court to move forward without risking injustice to any affected party.
[3] On 13 October 2001 the appellant appeared before the learned magistrate, MrNdou. His rights to legal representation were explained to him. He was duly warned that, if convicted, he was at risk of being sentenced to life imprisonment in terms of section 52 of the Criminal Law Amendment Act 105 of 1997 (the Act). The appellant, who was 18 years old at the time, elected to conduct his own defence. He explained how he had climbed through the window of the home where the complainant had been sleeping, that he undressed her and had sexual intercourse with her, without her consent. Having admitted all the elements of the offence of rape, the appellant was correctly convicted by the magistrate.
[4] The matter was then referred to the High Court for sentence. The matter came before Hetisani J on 5 February 2002. At this stage the appellant was represented by MrNetshifhefhe, an advocate. It is not clear whether the learned judge confirmed the conviction as was required by section 52 of the Act at that time. This appears to have been a factor which influenced Makhafola J to grant leave to appeal on 12 June 2012. Hetisani J had retired.The appellant argued on appeal both that there had been non-compliance with the provisions of s 52 of the Act and with s 112(1)(b) of the Criminal Procedure Act 51 of 197, as amended.
[5] It is clear that the appellant was correctly convicted. If indeed Hetisani J failed to confirm the conviction, no irregularity sufficiently serious to vitiate the proceedings occurred.This conclusion was supported by counsel for both sides. The requirement that the conviction in the Magistrates Court be confirmed by the High Courtbefore the latter court imposed sentence is, in any event, now a repealed provision of the law. To the extent that it is necessary to confirm that conviction, this court does so.
[6] The judge who imposed sentence asked a number of questions and received a probation officers report from a social worker. After questioning by the magistrate, it appeared that the appellant had known the complainant and that the offence had been committed at around 22h00. The appellant was the third of six children. His parents worked on the Reef. His highest level of education is Standard Three. At the time of sentencing, the appellant was serving a three year sentence for house-breaking. He expressed remorse for the offence.
[7] The appellant reported to the social worker that he had been under the influence of alcohol at the time of commission of the offence. The social workers report records that the mental state of the appellant was still in question. The judge determined that a psychiatric report be obtained. That report by Dr Weiss, a forensic psychiatrist, dated 12 February 2002, determined that the appellant was not certifiable in terms of the Mental Health Act; that he was fit to stand trial; and that he was not impaired by mental illness or defect. Dr Weiss noted that the appellant was sullen and monosyllabic and that there was evidence that he had a maladjusted personality with antisocial traits. None of these observations were challenged either by the appellant or the State.
[8] It is not apparent why sentence was imposed as late as 27 February 2011. In itsjudgment the High Court said that counsel had:
¦drawn the courts attention to the fact that you have what we call a psychological problem. This came to the courts attention through the welfare report which mentioned that, for example, you can steal someones property and not make use of it and sometimes you would run away from school to go and sit in the bush the whole day and do nothing.
The High Court found that there were indeed substantial and compelling circumstances which justified the imposition of a sentence less than life imprisonment. A sentence of 30 years imprisonment was thereafter imposed.
[9] The background facts of the appellants young age of 18 years at the time of the commission of the offence, together with his social problems and remorse justify a finding that there was, cumulatively, a sufficiency of factors to justify a departure from the prescribed minimum of life imprisonment for an offence such as this. Having made such a finding, the High Courts imposition of a sentence of 30 years imprisonment does not square with the requirements of justice. This is a view which has been supported by the State. Counsel for the appellant and the State agreed that 15 years imprisonment would do justice, albeit imperfectly, in this matter. I agree. The interests of justice demand that the sentence should run from the date of conviction rather than that upon which the High Court imposed sentence some ten years after conviction.
[10] The order of this court is the following:
1. The appeal against conviction is dismissed.
2. The appeal against sentence is upheld.
3. The sentence of 30 years imprisonment imposed by the court below is replaced with 15 years imprisonment, antedated to 13 October 2001.