S v Budaza

• Jurisdiction: South Africa
• Judge: Smuts AJ
• Judgment Date: 21 October 1999
• Citation: 1999 (2) SACR 491 (E)
• Hearing Date: 20 October 1999
• Counsel: J Powers (attorney) for the accused N Gounden for the State
• Court: Eastern Cape Division

Smuts AJ:

The accused, a 20-year-old male, was convicted in the regional court, Grahamstown, on one count of rape and another of common assault. Upon convicting the accused, the magistrate D remarked as follows:

'Furthermore, the court will continue to say the matter will then at this stage be referred to the High Court for sentence without the State having to prove previous convictions because it is Part I of Schedule 2 where the accused has been part of a gang rape.' E

The legislation referred to is Part I of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 ('the Act'). The legislation seeks inter alia in certain circumstances to curtail the sentencing power of the Courts and turn them into administrative functionaries whose task is to advise accused persons convicted of certain offences of sentences which have been imposed upon them by the Legislature. F I shall comment upon this aspect again in due course.

The evidence in the instant matter revealed that the accused was a cousin of the boyfriend of the complainant on the rape charge, and to whom I shall refer in this judgment as the complainant. At G approximately 8 o'clock on the night in question, the complainant and her boyfriend had encountered the accused in the company of friends at a shop, and an exchange took place between them. Much later, at a time which the complainant's boyfriend placed before 11 pm, while the complainant and her boyfriend were returning from a drinking party, they were encountered again by the accused and two associates, who proceeded to assault them with sticks, and to rape the complainant. While one H of the party was raping the complainant, the other two would continue the assault upon her boyfriend. The accused was the second of the party to rape the complainant. I am not persuaded that, given the superficial way in which the evidence was adduced, the State established that the complainant was in fact raped by the third assailant, but as he was not before the court, this was of I little moment in the proceedings before the magistrate.

The accused relied on a defence of alibi, but could offer no explanation as to why his cousin and the complainant should identify him as their assailant, and received little assistance from the evidence of his witness, his mother, who had retired to bed by the time at which the attack J

Smuts AJ

A occurred. The magistrate accordingly convicted the accused of rape, gave the accused the benefit of the doubt in acquitting him on the assault charge in respect of the complainant on the grounds that the attack upon her with sticks may have been an integral part of the process of breaking down her resistance to the rape, and convicted the accused of common assault of the complainant's boyfriend, notwithstanding the persistent attack with sticks which apparently lasted for B the duration of the multiple rape of the complainant. I pause to record that a somewhat more enthusiastic prosecution of this case in respect of the charge of assault with intent to do grievous bodily harm to the complainant's boyfriend could have resulted in a conviction on that more serious charge. No attempt was made to adduce any medical evidence in respect of the complainant's C boyfriend, nor was he even asked as to the extent of injuries suffered during the sustained attack upon him. I am not of view that the magistrate erred in convicting the accused as he did. It was upon conviction that he sought to refer the case to this court for sentence since the accused had been D 'part of the gang rape'. That terminology employed by the magistrate does not occur in Part I of Schedule 2 to the Act. The magistrate was apparently purporting to act in terms of the procedure under ss 51, 52 and 53 of the Act, which were brought into operation on 1 May 1998 by Presidential Proclamation R43. These sections provide as follows:

E '51(1) Notwithstanding any other law but subject to ss (3) and (6), a High Court shall, if it has convicted a person of an offence referred to in Part I of Schedule 2, sentence the person to imprisonment for life.(2) Notwithstanding any other law but subject to ss (3) and (6), a regional court or a High Court shall -

(a)

F if it has convicted a person of an offence referred to in Part II of Schedule 2, sentence the person, in the case of -

(i)

a first offender, to imprisonment for a period not less than 15 years;

(ii)

a second offender of any such offence, to imprisonment for a period not less than 20 years; and

(iii)

a third or subsequent offender of any such offence, to imprisonment for a period not less than 25 years;

(b)

G if it has convicted a person of an offence referred to in Part III of Schedule 2, sentence the person, in the case of -

(i)

a first offender, to imprisonment for a period not less than 10 years;

(ii)

a second offender of any such offence, to imprisonment for a period not less than 15 years; and

(iii)

a third or subsequent offender of any such offence, to imprisonment for a period not less than 20 years; H and

(c)

if it has convicted a person of an offence referred to in Part IV of Schedule 2, sentence the person, in the case of -

(i)

a first offender, to imprisonment for a period not less than five years;

(ii)

a second offender of any such offence, to imprisonment for a period not less than seven years; and

(iii)

I a third or subsequent offender of any such offence, to imprisonment for a period not less than 10 years:

Provided that the maximum sentence that a regional court may impose in terms of this subsection shall not be more than five years longer than the minimum sentence that it may impose in terms of the subsection.(3)(a) If any J court referred to in ss (1) or (2) is satisfied that substantial and

Smuts AJ

compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in A those subsections, it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence.

(b)

If any court referred to in ss (1) or (2) decides to impose a sentence prescribed in those subsections upon a child who was 16 years of age or older, but under the age of 18 years, at the time of the commission of the act B which constituted the offence in question, it shall enter the reasons for its decision on the record of the proceedings.

(4) Any sentence contemplated in this section shall be calculated from the date of sentence.

(5) The operation of a sentence imposed in terms of this section shall not be suspended as contemplated in s 297(4) of the Criminal Procedure Act, 1977 (Act 51 of 1977). C

(6) The provisions of this section shall not be applicable in respect of a child who was under the age of 16 years at the time of the commission of the act which constituted the offence in question.

(7) If in the application of this section the age of a child is placed in issue, the onus shall be on the State to prove the age of the child beyond reasonable doubt. D

(8) For the purposes of this section and Schedule 2, 'law enforcement officer' includes -

(a)

a member of the National Intelligence Agency or the South African Secret Service established under the Intelligence Services Act, 1994 (Act 38 of 1994); and

(b)

a correctional official of the Department of Correctional Services or a person authorised under the E Correctional Services Act, 1959 (Act 8 of 1959).

52(1) If a regional court, after it has convicted an accused of an offence referred to in Schedule 2 following on -

(a)

a plea of guilty; or

(b)

a plea of not guilty, F

but before sentence, is of the opinion that the offence in respect of which the accused has been convicted merits punishment in excess of the jurisdiction of a regional court in terms of s 51, the court shall stop the proceedings and commit the accused for sentence by a High Court having jurisdiction.

(2)(a) Where an accused is committed under ss (1)(a) for sentence by a High Court, the record of the proceedings in the regional court shall upon proof thereof in the High Court be received by the High Court and form part of the G record of that Court, and the plea of guilty and any admission by the accused shall stand unless the accused satisfies the Court that such plea or such admission was incorrectly recorded.

(b) Unless the High Court in question -

(i)

it satisfied that a plea of guilty or an admission by the accused which is material to his or her guilt was H incorrectly recorded; or

(ii)

is not satisfied that the accused is guilty of the offence of which he or she has been convicted and in respect of which he or she has been committed for sentence,

the Court shall make a formal finding of guilty and sentence the accused as contemplated in s 51. I

(c) If the Court is satisfied that a plea of guilty or an admission by the accused which is material to his or her guilt was incorrectly recorded, or if the Court is not satisfied that the accused is guilty of the offence of which he or she has been convicted and in respect of which he or she has been committed for sentence or that he or she has no valid defence to the charge, the Court shall enter a plea of not guilty and proceed with the trial as a summary trial in that Court: Provided that J

Smuts AJ

A any admission by the accused the recording of which is not disputed by the accused, shall stand as proof of the fact thus admitted.(d) The provisions of s 112(3) of the Criminal Procedure Act, 1977 (Act 51 of 1977), shall apply with reference to the proceedings under this subsection.(3)(a) Where an accused is committed under ss (1)(b) for sentence by a High Court, the record of the proceedings in the regional court shall upon proof thereof in the High B Court be received by the High Court and form part of the record...