S v Carter

• Jurisdiction: South Africa
• Judge: Kgomo JP and Mamosebo AJ
• Judgment Date: 27 September 2013
• Citation: 2014 (1) SACR 517 (NCK)
• Docket Number: CA&R 37/2013
• Hearing Date: 05 August 2013
• Counsel: PJ Cloete for the appellant, instructed by the Legal Aid Board, Kimberley. CG Jansen for the state.
• Court: Northern Cape Division

S v Carter
2014 (1) SACR 517 (NCK)

2014 (1) SACR p517

Citation	2014 (1) SACR 517 (NCK)
Case No	CA&R 37/2013
Court	Northern Cape High Court, Kimberley
Judge	Kgomo JP and Mamosebo AJ
Heard	August 5, 2013
Judgment	September 27, 2013
Counsel	PJ Cloete for the appellant, instructed by the Legal Aid Board, Kimberley.; CG Jansen for the state.

Flynote : Sleutelwoorde

Appeal — By Director of Public Prosecutions or other prosecutor on question of fact — Semble: Court expressing desirability of amending Criminal F Procedure Act 51 of 1977 to allow appeal by state, on facts, against discharge or acquittal of accused.

Appeal — Notice of appeal — Requirement of filing notice of appeal — In terms of s 309B of Criminal Procedure Act 51 of 1977 and rule 67 of Magistrates' Court Rules — Respondents must take stand against non-compliance provisions and take points in limine. G

Headnote : Kopnota

In dismissing an appeal by the appellant against his conviction and sentence in a regional magistrates' court for a number of counts, including kidnapping and attempted rape, the court remarked on a number of misdirections committed by the magistrate, including, seemingly, lack of appreciation by H the magistrate that even the slightest penetration was sufficient to constitute the crime of rape. These misdirections had resulted in the appellant being convicted only of attempted rape and not of rape itself. The court pointed to the anomalous situation where the state was only entitled to appeal against the discharge of an accused on a point of law, and suggested that perhaps the time had come for the courts to enquire whether the state I should not also be entitled to appeal against a discharge on the merits. The court ordered that a copy of its judgment be sent to a number of authorities for the purpose of possibly amending the law in this regard. (Paragraphs [6] at 520e – f and [32] at 529f – h.)

It appeared that, after leave to appeal had been granted on petition, no notice of appeal had been filed in terms of s 309B of the Criminal Procedure Act 51 of 1977 and rule 67 of the Magistrates' Court Rules. The courts had J

2014 (1) SACR p518

A often expressed their dismay at non-compliance with these provisions and the time had come to put these indulgences to a stop. Respondents in both criminal and civil cases were urged to wake up to these requirements and take the stand against their abuse by taking points in limine.

Annotations:

Cases cited

Case law

Osman and Another v Attorney-General, Transvaal1998 (2) SACR 493 (CC) (1998 (4) SA 1224; 1998 (11) BCLR 1362): referred to B

R v C1952 (4) SA 117 (O): dicta at 120A – 121C applied

R v Dhlumayo and Another1948 (2) SA 677 (A): referred to

R v Dladla and Others1962 (1) SA 307 (A): referred to

R v K1958 (3) SA 420 (A): dicta at 421E – 422F applied C

S v Blaauw1999 (2) SACR 295 (W): compared

S v Boesak2001 (1) SACR 1 (CC) (2001 (1) SA 912; 2001 (1) BCLR 36; [2000] ZACC 25): referred to

S v Hadebe and Others1997 (2) SACR 641 (SCA): applied

S v Mabasa and Others2005 (2) SACR 250 (NC): considered

S v Mokela2012 (1) SACR 431 (SCA) ([2011] ZASCA 166): referred to D

S v Mthetwa1972 (3) SA 766 (A): referred to

S v Nabolisa2013 (2) SACR 221 (CC): applied

S v Shabalala1986 (4) SA 734 (A): referred to

S v Teek 2009 (1) NR 127 (SC) ([2009] NASC 5): referred to

S v Thebus and Another2003 (2) SACR 319 (CC) (2003 (6) SA 505; 2003 (10) BCLR 1100): referred to E

S v Yolelo1981 (1) SA 1002 (A): applied

Strategic Liquor Services v Mvumbi NO and Others2010 (2) SA 92 (CC) (2009 (10) BCLR 1046): referred to.

Legislation cited

Statutes

F The Criminal Procedure Act 51 of 1977, s 309B: see Juta's Statutes of South Africa 2012/13 vol 1 at 2-417.

Rules Considered

Rules of court

The Magistrates' Court Rules, rule 67: see The Supreme Court Act and the Magistrates' Courts Act and Rules (Juta, 2014) at 386.

Case Information

PJ Cloete for the appellant, instructed by the Legal Aid Board, Kimberley. G

CG Jansen for the state.

Appeal from convictions in a regional court and sentences imposed for a H number of offences, including kidnapping and attempted rape.

Order

(1)

The appeal in respect of both the convictions and sentences is dismissed.

(2)

I The registrar is directed to send a copy of this judgment to the following instances to consider the feasibility or the need to introduce, legislation to address the issue alluded to in para [6] of this judgment:

•

the Minister of Justice and Constitutional Development;

•

the National Director of Public Prosecutions;

•

the various Directors J of Public Prosecutions;

2014 (1) SACR p519

•

the Chairperson of the Justice Portfolio Committee; A

•

the Chairperson of the Law Commission;

•

the Commissioner of Police;

•

the General Council of the Bar;

•

the Law Society of the Cape of Good Hope;

•

the Law Society of the Northern Provinces; B

•

the Law Society of KwaZulu-Natal; and

•

he Law Society of the Free State.

Judgment

Kgomo JP and Mamosebo AJ:

[1] The appellant, Mr Johnny Carter, is a 45-year-old man of Vergenoeg, C Kimberley. On 30 July 2009 he was convicted by a regional court magistrate of Kimberley, Mr Pieterse, as follows:

(a)

Count 1: Kidnapping;

(b)

count 2: Common assault;

(c)

count 3: Assault with intent to do grievous bodily harm;

(d)

counts 4, 5 and 6: Attempted rape; D

(e)

count 11: Theft.

On counts 7, 8, 9 and 10 of rape he was acquitted. The appeal against the conviction and sentence is with leave of this court.

[2] The appellant was represented by Mr Tlisani, an attorney attached to E Legal Aid South Africa, Kimberley. He pleaded not guilty to all the charges. The oral plea-explanation is ambiguous and amounted to this: the appellant had been in Warrenton and was unjustifiably arrested when he walked past an area in Galeshewe, Kimberley, where the complainant in respect of all the charges, Ms AM, happened to be with a police officer F from whom she sought help.

[3] The less said about the judgment of the regional magistrate, the better. The judgment does not provide any factual background. There is no critical assessment of why the acts of the appellant constituted G attempted rape, and not rape for which he was charged. No authority is cited for the drastic deviation from the original charge. There is no explanation for rejecting the complainant's evidence that she was sexually penetrated. The appellant did not testify, nor did he call any witness. The impact of the appellant's choices to remain silent in the face of implicatory evidence is not dealt with. The magistrate, and indeed the H magistracy, may do well to look at the following judgments in this respect: S v Mokela2012 (1) SACR 431 (SCA) ([2011] ZASCA 166) at 436e – 437b (paras 12 and 13) and cased cited therein; Strategic Liquor Services v Mvumbi NO and Others2010 (2) SA 92 (CC) (2009 (10) BCLR 1046) at 96B – 98A (paras 12 – 19) and cases there cited. I

[4] It is not the length of the judgment that matters, but whether the state has proved its case beyond a reasonable doubt. This the court establishes by investigating whether all the elements of the crime an accused is charged with have been proved. In casu on the merits, if the recital of the charges and verdict part are excluded, the body of the J

2014 (1) SACR p520

Kgomo JP and Mamosebo AJ

A judgment of the regional magistrate is hardly a page long. The reason for the abdication by the magistrate of his duty lies in the following remarks in his so-called judgment:

'Die Hof is dus tevrede Meneer, dat die versoek van die aanklaer en die toegewing van u prokureur met betrekking tot die klagtes waarop u B skuldig is inderdaad korrek is. Die klaagster se getuienis staaf al hierdie getuienis en sy word ook gestaaf deur die polisie beamptes en die verklaring in terme van artikel 212 wat ingehandig is vanoggend'.

[5] The correct approach to be adopted by an appellate court has been enunciated as follows by Marais JA in S v Hadebe and Others1997 (2) SACR 641 (SCA) C at 645e – f:

'Before considering these submissions it would be as well to recall yet again that there are well-established principles governing the hearing of appeals against findings of fact. In short, in the absence of demonstrable and material misdirection by the trial Court, its findings of fact are presumed to be correct and will only be disregarded if the recorded D evidence shows them to be clearly wrong. The reasons why this deference is shown by appellate Courts to factual findings of the trial court are so well known that restatement is unnecessary.'

See also R v Dhlumayo and Another1948 (2) SA 677 (A) at 705 – 706.

[6] In view thereof that there is no judgment worth speaking of, the E above principle is not applicable to it. We are therefore at large to assess the evidence afresh and come to our own conclusion. In light of the travesty of justice that took place in this case, maybe the time has come for the courts to enquire, while paying due deference to the doctrine of the separation of powers amongst the three arms of government, why, if F indeed that is so, does it seem to be unacceptable for a democratic constitutional dispensation to allow the state in criminal matters to appeal a discharge of an accused on a question of merits, as distinct from a point of law. On this point it bears reminding that Kgomo JP of this division repeated that entreaty in S v Mabasa and Others2005 (2) SACR 250 (NC) at 252b – 254a (paras 5 – 9):

G '[5] The appellants were incorrectly acquitted on count 2, as will be seen later. I must advocate more vigorously the introduction of a procedure that I have called for for some time in several unreported...