Director of Public Prosecutions, Gauteng v MG

• Jurisdiction: South Africa
• Judgment Date: 02 June 2017
• Citation: 2017 (2) SACR 132 (SCA)

Director of Public Prosecutions, Gauteng v MG
2017 (2) SACR 132 (SCA)

2017 (2) SACR p132

Citation	2017 (2) SACR 132 (SCA)
Case No	6/2017; [2017] ZASCA 82
Court	Supreme Court of Appeal
Judge	Lewis JA, Petse JA, Mathopo JA, Gorven AJA and Mbatha AJA
Heard	May 2, 2017
Judgment	June 2, 2017
Counsel	J Crone for the appellants.; HL Alberts for the respondent, instructed by the Justice Centre, Bloemfontein.

Flynote : Sleutelwoorde

Appeal — By Director of Public Prosecutions in terms of s 311 of Criminal Procedure Act 51 of 1977 — Question of law — What constitutes — Imputing consent to sexual acts by 10-year-old child in mitigation of sentence constituting error C of law triggering s 311.

Headnote : Kopnota

The respondent was convicted in a regional magistrates' court three counts of rape and several other counts relating to child pornography. The complainant on the rape counts was the respondent's 10-year-old stepdaughter whom he also used in some of the child-pornography counts. He was D sentenced to life imprisonment on each of the counts of rape and 10 years' imprisonment (effective) in respect of the remaining counts.

He appealed to the High Court against his convictions and sentences. In respect of two of the rape counts, the court found that there was no proper proof of penetration, and that those convictions had to be set aside and replaced with convictions of sexual assault in contravention of s 5(1) of the Criminal E Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Sexual Offences Act). As to the remaining counts, the court found that there was a strong suspicion that the victim was not an unwilling participant, even though she was only 10 years old at the time, and thus, for the purposes of s 57(1) of the Sexual Offences Act, unable to consent to sexual acts. It then imposed a globular sentence of 10 years' imprisonment, F treating all the counts as one for purposes of sentence, of which five years were suspended.

The state appealed against the sentences under s 311 of the Criminal Procedure Act 51 of 1977 (the CPA) and contended that imputing consent by conduct to the commission of the offences by a child under the age of 12, for the purposes of mitigation of sentence, amounted to an error of law by the High Court, justifying the appeal in terms of the section.

Held, G that, in imputing such consent to the complainant, the High Court had done so despite the clear and unequivocal provisions of s 57(1) of the Sexual Offences Act, and had committed an error of law. The case therefore fell foursquare within the purview of s 311 of the CPA and, in the circumstances, the interests of justice dictated that the sentence imposed by the High Court had to be set aside (see [28]). The matter was remitted to the H High Court for the appeal on sentence to be dealt with in accordance with the principles set out in the judgment.

Cases cited

Attorney-General (Transvaal) v Steenkamp 1954 (1) SA 351 (A): dicta at 357F – G applied

De I Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2003 (2) SACR 445 (CC) (2004 (1) SA 406; 2003 (12) BCLR 1333; [2003] ZACC 19): considered

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

Director of Public Prosecutions, Gauteng v KM 2017 (2) SACR 177 (SCA) J ([2017] ZASCA 78): dicta in paras [70] – [71] applied

2017 (2) SACR p133

Director of Public Prosecutions, Gauteng v Mphaphama 2016 (1) SACR 495 (SCA) A ([2016] ZASCA 8): distinguished

Director of Public Prosecutions, Transvaal v Mtshweni 2007 (2) SACR 217 (SCA): distinguished

Director of Public Prosecutions, Western Cape v Kock 2016 (1) SACR 539 (SCA) ([2015] ZASCA 197): distinguished

N v T 1994 (1) SA 862 (C): considered B

S v D 1995 (1) SACR 259 (A): considered

S v Jansen 1999 (2) SACR 368 (C): considered

S v MM 2012 (2) SACR 18 (SCA) ([2012] 2 All SA 401): referred to

S v Mosterd 1991 (2) SACR 636 (T): distinguished

S v Seedat 2017 (1) SACR 141 (SCA) ([2016] ZASCA 153): compared. C

Legislation cited

The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 1997, ss 5(1) and 57(1): see Juta's Statutes of South Africa 2015/16 vol 1 at 2-661 and 2-676

The Criminal Procedure Act 51 of 1977, s 311: see Juta's Statutes of South Africa 2015/16 vol 1 at 2-403 – 2-404. D

Case Information

J Cronje for the appellant.

HL Alberts for the respondent, instructed by the Justice Centre, Pretoria, c/o the Justice Centre, Bloemfontein.

An appeal by the state in terms of s 311 of the Criminal Procedure Act E 51 of 1977 from a sentence imposed by the Gauteng Division, Pretoria (Preller J and Kganyago AJ).

Order

1.

The appeal is upheld. F

2.

The question of law raised by the state is determined in its favour.

3.

The sentence imposed by the High Court is set aside.

4.

The matter is referred back to the High Court for the appeal on sentence to be dealt with in accordance with the principles set out in this judgment. G

Judgment

Petse JA (Lewis JA, Mathopo JA, Gorven AJA and Mbatha AJA concurring):

[1] This is an appeal by the Director of Public Prosecutions, Gauteng, arising from what it submits is a question of law in relation to sentence, H decided in favour of the respondent, which informed the sentence imposed by the Gauteng Division of the High Court, Pretoria (Preller J and Kganyago AJ), sitting on appeal from a judgment of the regional court, Louis Trichardt, Limpopo. I shall refer to the court as the High Court for convenience. This court granted special leave to appeal against sentence. [1] It is more properly an appeal under s 311 of the Criminal I

2017 (2) SACR p134

Petse JA

Procedure A Act [2] (the CPA) and was argued on that basis. It concerns the question whether imputing consent to a sexual act (defined as rape) by a child under the age of 12 years for purposes of sentence is competent.

[2] The respondent, MG, was arraigned in the regional court on the following seven charges:

(a)

B Three counts of rape in contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Sexual Offences Act);

(b)

using a child for child pornography in contravention of s 20(1) of the Sexual Offences Act (count 4);

(c)

exposing, displaying or causing the exposure or displaying of child C pornography in contravention of s 19(a) of the Sexual Offences Act (count 5);

(d)

sexual grooming of children in contravention of s 18(2)(a) of the Act (count 6); and

(e)

possession of a film or publication containing child pornography in D contravention of s 27(1)(a)(i) of the Films and Publications Act 65 of 1996 (the Films Act) (count 7). In the regional court he pleaded not guilty to all seven counts.

[3] Briefly, the background to which the charges relate is as follows. The respondent and the complainant's mother, AG, married each other E during September 2006. The complainant, CC, who was 10 years old at the time, and her younger brother, TT, lived with the respondent and their mother at the Air Force base in Louis Trichardt. The complainant and her brother were AG's children from a previous relationship. All of the offences in respect of which the respondent was charged were alleged F to have been committed during the period spanning from September to November 2009 at the family home on various occasions when the complainant's mother was not at home. The allegations against the respondent, broadly stated, were that on various occasions during this period the respondent, unlawfully and intentionally, penetrated the complainant's vagina, anus and mouth with his penis. And that he took photographs of G the sexual acts with his cellular phone, thus creating pornographic material, and transferred and stored these on the family computer. It was also alleged that he had shown the complainant pornographic images of him and her mother having sex, and that he sexually groomed the complainant.

[4] H The complainant's mother testified at the trial that, on the morning of 2 November 2009, whilst she was scrolling through the family computer, she came across pornographic images of adult women and later stumbled upon photographic images of the respondent engaged in sexual acts with the complainant. This fortuitous discovery set the wheels of justice in motion and culminated in the prosecution of the I respondent on the seven charges mentioned earlier. It is, however, not

2017 (2) SACR p135

Petse JA

my view to recapitulate all the evidence led at the trial. Rather, this A judgment will focus on a single issue decisive of this appeal, namely, whether the appeal is one based on a question of law: that the High Court wrongly took into account that the complainant could have consented to the sexual act (defined as rape) when she was but 10 years old. I shall deal with the facts underlying the application of the wrong principle more fully below. B

[5] At the conclusion of the trial the respondent was convicted on six counts, and was acquitted on count 6. After hearing both the defence and the state on mitigation and aggravation of sentence, the regional magistrate sentenced the respondent, in terms of s 51 [3] of the Criminal C Law Amendment Act 105 of 1997, to life imprisonment on each of the three rape counts. The three remaining counts (counts 4, 5 and 7) were treated as one for purposes of sentence and a sentence of 10 years' imprisonment was imposed. In...