Director of Public Prosecutions, Pretoria v Mtshali

• Jurisdiction: South Africa
• Court: Gauteng Division, Pretoria
• Judge: De Vos J
• Judgment Date: 20 June 2016
• Citation: 2016 (2) SACR 463 (GP)
• Hearing Date: 14 June 2016
• Docket Number: A 905/2014
• Counsel: J Cronje for the applicant. WJ van Wyk for the respondent.

Director of Public Prosecutions, Pretoria v Mtshali
2016 (2) SACR 463 (GP)

2016 (2) SACR p463

Citation	2016 (2) SACR 463 (GP)
Case No	A 905/2014
Court	Gauteng Division, Pretoria
Judge	De Vos J
Heard	June 14, 2016
Judgment	June 20, 2016
Counsel	J Cronje for the applicant.; WJ van Wyk for the respondent.

Flynote : Sleutelwoorde

Appeal — Condonation — Requirements for — Appeal by Director of Public Prosecutions against lenient sentence imposed for rape — Fact of lenient sentence imposed not brought to attention of prosecutor's superiors despite general instructions to do so — Public interest requiring that condonation be granted where non-custodial sentence imposed for violent rape. G

Headnote : Kopnota

The Director of Public Prosecutions (DPP) applied for condonation for leave to appeal against a sentence of five years' imprisonment, suspended in its entirety, for rape, and a fine of R2000 for attempted murder. The application was filed some 23 months after sentence was imposed. H The delay was explained by the National Director of Public Prosecutions in an affidavit as having been caused by it not having been made aware of the shockingly lenient sentence until the case was highlighted in a Sunday newspaper.

The rape, as found by the regional-court magistrate, was a violent one and the complainant was in fact raped twice although the respondent was only I charged with one count. The evidence was that the respondent and the complainant had been in a relationship that had ended a year earlier but they were still co-workers at a resort and the respondent was her supervisor. On the day of the offences, the respondent had asked her to have intercourse with him but she refused and he then forcibly had intercourse with her after having pulled her into a toilet cubicle. The respondent then drove her into the bushes where she attempted to break loose and run away J

2016 (2) SACR p464

A but the respondent caught up with her and hit her head against a stone. He took her back to the motor vehicle where he hit her head with the lid of a cast-iron pot several times until she lost consciousness after which he put her into the boot of the car. When she awoke the respondent hit her with the motor car jack as well as his fists and raped her again. The reason why the magistrate imposed such a light sentence was that the respondent had B claimed to be the caregiver of his minor children whose interests required that he not be imprisoned. The DPP explained that despite departmental requirements and procedures the prosecutor involved in the case, who had since resigned and become a magistrate, had not brought the matter to the attention of her supervisors.

Held, that the magistrate had misdirected himself in overemphasising the personal circumstances of the respondent and underemphasising the seriousness C of the offence and the interests of the community. He had also ignored numerous reported decisions of the courts that, when sentencing in cases such as the present, the emphasis had to be on retribution and deterrence and that the rehabilitation of the offender consequently had to play a relatively smaller role. (Paragraph [11] at 470g–h.)

Held, further, that the DPP had reasonable prospects of success on appeal and the D only question which remained was whether it should be granted condonation to embark on the process. Ignorance by the DPP caused by a lack of action from a prosecutor might not always be considered 'good cause' as it was in the interests of justice that litigation come to an end in order to ensure legal certainty. A belated appeal against the sentence imposed for a criminal conviction might evoke a public interest in the matter of the law's delays and E affect the respondent's interests with regard to the finality of his judgment: when the time for noting an appeal had lapsed, he was prima facie entitled to adjust his affairs on the footing that his judgment was safe. (Paragraph [12] at 470i–471g.) However, in the present matter, the public interest as well as those of the victim overshadowed the interests of the respondent to such an extent that the applicant's late filing of the application for leave to appeal F ought to be condoned. The message sent to the community by imposing a suspended sentence where women had been violently raped was in direct conflict, not only with the legislation on minimum sentences, but also with the general trend of sentencing by the courts in South Africa and the message those courts strove to send out to the community. Condonation was accordingly granted. (Paragraph [14] at 472g–j.)

Cases cited

Attorney-General, Venda v Maraga 1992 (2) SACR 594 (V): considered G

Engelbrecht v Khumalo 2016 (4) SA 564 (GP): dicta in paras [7] – [8] applied

S v Basson 2007 (1) SACR 566 (CC) (2007 (3) SA 582; 2005 (12) BCLR 1192; [2005] ZACC 10): referred to H

S v Chetty 2013 (2) SACR 142 (SCA) ([2013] ZASCA 6): referred to

S v Di Blasi 1996 (1) SACR 1 (A): dictum at 10f – g applied

S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC) (2008 (3) SA 232; 2007 (12) BCLR 1312; [2007] ZACC 18): referred I to

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220; [2001] ZASCA 30): dictum at 482f applied

S v Mhlakaza and Another 1997 (1) SACR 515 (SCA) ([1997] 2 All SA 185; [1997] ZASCA 7): dictum at 519d – e applied

S v Nkwanyana and Others 1990 (4) SA 735 (A): dictum at 749C – D J applied

2016 (2) SACR p465

S v Smith 2012 (1) SACR 567 (SCA) ([2011] ZASCA 15): dictum in A para [7] applied

S v Zinn 1969 (2) SA 537 (A): applied.

Case Information

J Cronje for the applicant.

WJ van Wyk for the respondent. B

An application by the Director of Public Prosecution, Pretoria, for condonation for the late filing of an application for leave to appeal against sentences imposed in a regional-magistrates' court for rape and attempted murder.

Order C

1.

Condonation is granted to the applicant for the late filing of the notice of appeal and/or heads of argument.

2.

Condonation is granted to the respondent for the late filing of his opposing papers and heads of argument. D

3.

Leave is granted to the applicant to appeal to the Gauteng Division of the High Court, Pretoria, on the sentences imposed on counts 1 and 2 respectively, on the grounds as set out in the notice of appeal.

Judgment

De Vos J: E

[1] This is an application, brought by the Director of Public Prosecutions, Pretoria (DPP), in terms of the provisions of s 310A of the Criminal Procedure Act 51 of 1977 (CPA), for leave to appeal against a sentence imposed on the respondent on 4 December 2012. It is common cause that on that day the respondent was sentenced by the regional-court F magistrate, Mokopane, to five years' imprisonment wholly suspended for a period of five years on count 1 (rape), and to a fine of R2000 or 12 months' imprisonment on count 2 (attempted murder). The respondent was charged with only one count of rape, although it appears from the facts — as will be discussed later — that the complainant was raped G twice. For purposes of this judgment I deal with one count of rape only. The application for leave to appeal was filed with the Registrar of the High Court, Gauteng Division, Pretoria, on 2 November 2014. This application was brought almost 23 months after the sentence was imposed. The applicant also filed an application for condonation for the H late filing of the application for leave to appeal. Both applications are opposed by the respondent.

[2] Section 310A(2)(a) of the CPA reads as follows:

'A written notice of such an application shall be lodged with the registrar I of the provincial or local division concerned by the attorney-general, within a period of 30 days of the passing of sentence or within such extended period as may on application on good cause be allowed.'

Du Toit AJ stated in Attorney-General, Venda v Maraga 1992 (2) SACR 594 (V) at 600a – b: J

2016 (2) SACR p466

De Vos J

A 'What a good cause is, will obviously depend on the circumstances of each case and will be considered by the Judge in Chambers on the facts of the matter, taking into account also the attitude, submissions and interests of the respondent.'

[3] The applicant filed an affidavit sworn to by Adv HM Meintjies SC B setting out reasons and offering an explanation for the failure by the applicant to adhere to the 30-day time limit. Succinctly put, the DPP was not aware of the shockingly light sentence imposed on the respondent until a newspaper article was published in the Sunday Times on 26 October 2014. Since then every effort was made to avoid any further delay and to file the application as soon as was reasonably possible. C Advocate Meintjies SC says in her statement that prosecutors are instructed and are obliged to bring inadequate sentences to the attention of the DPP. Upon enquiry to the senior prosecutor stationed at...