Director of Public Prosecutions, Gauteng Division, Pretoria v Moabi

• Jurisdiction: South Africa
• Citation: 2017 (2) SACR 384 (SCA)

Director of Public Prosecutions, Gauteng Division, Pretoria v Moabi
2017 (2) SACR 384 (SCA)

2017 (2) SACR p384

Citation	2017 (2) SACR 384 (SCA)
Case No	959/2015; [2017] ZASCA 85
Court	Supreme Court of Appeal
Judge	Maya AP, Theron JA, Dambuza JA, Molemela AJA and Gorven AJA
Heard	February 15, 2017
Judgment	June 2, 2017
Counsel	S Mahomed SC (with CP Hamzen) for the appellant.; HL Alberts (with S Moeng) for the respondent.

Flynote : Sleutelwoorde

Appeal G — Leave to appeal — Application for — By Director of Public Prosecutions on question of law in terms of s 311(1) of Criminal Procedure Act 51 of 1977 — Such appeal one of right and leave to appeal not required.

Rape — Sentence — Life imprisonment — Minimum sentence in terms of s 51 of Criminal Law Amendment Act 105 of 1997 — Where grievous H bodily harm inflicted — Enhanced minimum-sentence provisions not requiring state to show that accused had intention to cause grievous bodily harm.

Headnote : Kopnota

In an appeal against a conviction in a regional magistrates' court on a charge of I housebreaking with intent to rape and rape (read with the provisions of s 51(1) of the Criminal Law Amendment Act 105 of 1997) the High Court had confirmed the conviction but set aside the sentence of life imprisonment and replaced it with a sentence of 14 years' imprisonment. The basis for the interference in the sentence was the court's opinion that the state had not proved the respondent's intention to inflict grievous bodily harm on J the complainant.

2017 (2) SACR p385

In the present proceedings, the state applied for special leave to appeal to the A Supreme Court of Appeal on a question of law in terms of s 311(1) of the Criminal Procedure Act 51 of 1977 (the CPA). The question was whether the High Court had been correct in holding that rape contemplated in part 1(c) of sch 2, read with s 51(1) of the Criminal Law Amendment Act 105 of 1997 (the Act), required intent on the part of the convicted person to cause grievous bodily harm. B

Held, that the question raised involved the interpretation of the Act to ascertain what had to be proved to bring the offence of rape within the ambit of either part 1 or III of sch 2 to said Act. The Director of Public Prosecutions had accordingly raised a question of law. (See [12].)

Held, further, that by importing the intention of the respondent into the enquiry, C the High Court had disregarded previous authority. It had committed an error of law in that intent was irrelevant in the determination of whether grievous bodily harm was inflicted on a complainant in the rape. Rather, the question to be answered was whether, as a matter of fact, the victim had sustained grievous bodily harm. (See [15].)

Held, further, that special leave to appeal was not required in a matter arising D from s 311 of the CPA, which provided for an appeal as of right, without leave. An appeal under that section was also an appeal 'regulated in terms of the Criminal Procedure Act' and was therefore one to which the provisions of ch 5 of the Superior Courts Act 10 of 2013, and in particular s 16(1)(b) thereof, did not apply. (See [27].)

Held, further, that the appeal had to be upheld on the question of law and the E order of the High Court on sentence set aside. The sentence imposed by the regional court was accordingly reinstated and the matter remitted to the High Court for the appeal to proceed on sentence. (See [48].)

Cases cited

Attorney-General, F Transvaal v Nokwe and Others1962 (3) SA 803 (T): referred to

Attorney-General (Transvaal) v Steenkamp1954 (1) SA 351 (A): referred to

Cronshaw and Another v Fidelity Guards Holdings (Pty) Ltd1996 (3) SA 686 (A) ([1996] 2 All SA 435; [1996] ZASCA 38): referred to

Director of Public Prosecutions, Gauteng v Pistorius2016 (1) SACR 431 (SCA) G (2016 (2) SA 317; [2016] 1 All SA 346; [2015] ZASCA 204): referred to

Director of Public Prosecutions, KwaZulu-Natal v Mekka2003 (2) SACR 1 (SCA) (2003 (4) SA 275; [2003] ZASCA 17): referred to

Director of Public Prosecutions v Olivier2006 (1) SACR 380 (SCA) ([2006] 4 All SA 224; [2005] ZASCA 121): compared H

DPP Western Cape v Kock2016 (1) SACR 539 (SCA) ([2015] ZASCA 197): compared

Magmoed v Janse van Rensburg and Others1993 (1) SACR 67 (A) (1993 (1) SA 777; [1992] ZASCA 208): dictum at 94b – c applied

Pharmaceutical Society of South Africa and Others v Tshabalala Msimang and I Another NNO; New Clicks South Africa (Pty) Ltd v Minister of Health and Another2005 (3) SA 238 (SCA) (2005 (6) BCLR 576; [2005] 1 All SA 326; [2004] ZASCA 122): referred to

R v Jacobs1961 (1) SA 475 (A): dictum at 478A applied

S v Absalom1989 (3) SA 154 (A): referred to

S v Banger2016 (1) SACR 115 (SCA): referred to J

2017 (2) SACR p386

S A v Botha en 'n Ander2002 (1) SACR 222 (SCA) (2002 (2) SA 680; [2002] 2 All SA 577; [2001] ZASCA 146): referred to

S v Goabab 2012 JDR 1063 (Nm): referred to

S v Kolea2013 (1) SACR 409 (SCA) ([2012] ZASCA 199): referred to

S v Maselani and Another2013 (2) SACR 172 (SCA): referred to

S v Meje 2011 ZASCA 127: referred to

S B v Nabolisa2013 (2) SACR 221 (CC) (2013 (8) BCLR 964; [2013] ZACC 17): referred to

S v Swiegers 1969 (1) PH H110 (A): referred to

S v Tsedi1984 (1) SA 565 (A): referred to

S v Van Wyk and Another2015 (1) SACR 584 (SCA) ([2014] ZASCA 152): distinguished

Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering1986 (2) SA 555 (A) C ([1986] ZASCA 10): dicta at 564 – 565 applied.

Legislation cited

The Criminal Law Amendment Act 105 of 1997, s 51(1) and parts 1 and III of sch 2: see Juta's Statutes of South Africa 2016/17 vol 1 at 2-516, D 2-518 and 2-520

The Criminal Procedure Act 51 of 1977, s 311: see Juta's Statutes of South Africa 2016/17 vol 1 at 2-403 – 2-404

The Superior Courts Act 10 of 2013, s 16(1)(b) and ch 5: see Juta's Statutes of South Africa 2016/17 vol 1 at 2-265 – 2-266.

Case Information

S E Mahomed SC (with CP Hamzen) for the appellant.

HL Alberts (with S Moeng) for the respondent.

An application by the Director of Public Prosecutions, Gauteng Division, for special leave to appeal from a sentence imposed by the Gauteng F Division, Pretoria (Louw J and Kooverjie AJ), in a matter on appeal from a regional magistrates' court.

Order

1.

The appeal is upheld in respect of the question of law.

2.

The order of the High Court on sentence is set aside.

3.

G The sentence imposed by the regional court is reinstated.

4.

The matter is remitted to the High Court for the appeal to proceed on sentence.

Judgment

Molemela AJA (Dambuza JA concurring):

[1] This is an application by the Director of Public Prosecutions, Gauteng Division, Pretoria (the DPP), for special leave to appeal to this court on a question of law in terms of s 311(1) of the Criminal Procedure Act 51 of 1977 (the CPA).

[2] I The respondent was arraigned in the regional division of North West held at Klerksdorp (Magistrate Nzimande) (the regional court) on a charge of housebreaking with intent to rape and rape, read with the provisions of s 51(1) of the Criminal Law Amendment Act 105 of 1997 (CLAA). On 16 May 2014 the regional court convicted the J respondent and sentenced him to life imprisonment as contemplated in

2017 (2) SACR p387

Molemela AJA

s 51(1), read with part I(c)[1] of the CLAA on the basis that the complainant A had suffered grievous bodily harm during the course of the rape.

[3] The facts leading to the respondent's conviction and sentence are the following. On the night of 3 April 2012, the heavily pregnant complainant was asleep on her sofa in the dining room of her house in Jouberton, Klerksdorp, when she felt something touching her. She opened her eyes B only to find an intruder standing near her feet. The intruder closed her mouth with his hand and pressed a sharp object against the side of her mouth. The complainant wrestled with her assailant and broke a window pane so as to alert her neighbour to her plight. At some point during the scuffle she switched on the light and recognised her assailant as the C respondent — a man who had accompanied her boyfriend to her house earlier that day.

[4] During the scuffle that ensued, the respondent managed to overpower the complainant. He strangled her until she lost consciousness. When she regained consciousness, the respondent dragged her to her D bedroom and ordered her to undress. She refused. He then pushed her onto the bed, undressed her, undressed himself and raped her. She pleaded with him to stop, impressing upon him that he was hurting her unborn twins. He ignored her pleas and hit her with fists on the buttocks. After the respondent's departure the complainant went to her E neighbour's house and reported the rape to her. The neighbour arranged for a car to take her to the police station, after which the complainant was transported to the hospital, where she received medical attention for the injuries she had sustained.

[5] Pursuant to the sentence of life imprisonment being imposed by the F regional court, the respondent lodged an appeal against his conviction and sentence by virtue of the automatic right of appeal granted in terms of s 309(1)(a) of the CPA. The appeal was heard by two judges of the Gauteng Division of the High Court, Pretoria (Louw J and Kooverjie AJ (High Court). The High Court confirmed the conviction but set aside G the sentence on the basis that life imprisonment was not the applicable minimum sentence because the state had failed to prove that the respondent had the intent to inflict grievous bodily harm on the complainant. In making that conclusion, the High Court reasoned as

2017 (2) SACR p388

Molemela AJA

follows: A 'We are not satisfied that the element of intent exists. Hence there was assault but not intention to...