S v Masina

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: TV Ratshibvumo AJ and SS Mphahlele J
• Judgment Date: 20 April 2021
• Docket Number: A05/2020
• Hearing Date: 20 April 2021
• Citation: 2021 JDR 0777 (MN)

Ratshibvumo AJ:

[1] Introduction:

This is an appeal against the conviction and sentence imposed by the Regional Court sitting in Ermelo, on Mr Masina (the appellant). The appellant stood trial on two charges of rape of DM, a child aged 9 years old and a charge of assault with intent to do grievous bodily harm on TM, who is a mother to DM. He pleaded not guilty to all the charges and following a trial, he was convicted on all the charges. The two counts of rape were taken as one for purposes of sentence and he was sentenced to life imprisonment. On the charge of assault, he was cautioned.

[2] Automatic right to appeal

Despite the provisions of section 309(1)(a) of Act 51 of 1977 (the Criminal Procedure Act), the appellant still brought an application for leave to appeal both the conviction and sentence before the trial court.

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Ratshibvumo AJ

The trial court granted the application only in respect of the sentence and refused it in respect of the conviction.

[3]

Section 309(1)(a) of the Criminal Procedure Act provides:

Subject to section 84 of the Child Justice Act, 2008 (Act 75 of 2008), any person convicted of any offence by any lower court (including a person discharged after conviction) may, subject to leave to appeal being granted in terms of section 309B or 309C, appeal against such conviction and against any resultant sentence or order to the High Court having jurisdiction: Provided that if that person was sentenced to imprisonment for life by a regional court under section 51(1) of the Criminal Law Amendment Act, 1997 (Act 105 of 1997), he or she may note such an appeal without having to apply for leave in terms of section 309B: Provided further that the provisions of section 302(1)(b) shall apply in respect of a person who duly notes an appeal against a conviction, sentence or order as contemplated in section 302(1)(a). [My emphasis].

[4]

Section 309(1)(a) was amended by the Judicial Matters Amendment Act 42 of 2013 which came into operation on 22 January 2014. Section 43 of this Act provides for the retrospective application of this provision, meaning this amendment is deemed to have come into operation from 01 April 2010. This means by the time the application for leave to appeal was heard, this provision was in operation for almost 10 years. In this section, the right to appeal is given, it is expressly stated that no leave to appeal is required and the person is directed to exercise that right by simply noting an appeal. [1] Where the appellant applies for leave to appeal for reason of being ignorant of the legal provisions in this regard, it is not expected that the trial court would refuse any such application, as this is a right the accused already has by virtue of the legislation. For this

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Ratshibvumo AJ

reason, we proceeded to hear the appeal in respect of both the conviction and sentence.

[5] Factual background.

Following is the summary of facts. The appellant resided with DM the complainant and her family comprising of her mother and her brother SM, then aged 22 years old. The appellant was in a love relationship with the complainant's mother making him to be a father figure to her. It was common cause though that he was not her biological father although she shared a surname with him. DM testified how she went to where the appellant was running a tuck shop with her friends in order to buy snacks. The appellant chased her friends away and made her to pack the chips in the shop. As she was packing, the appellant undressed her and made her to lie down. He then inserted his penis into her vagina and had sexual intercourse with her until he ejaculated. She did not tell anyone about this incident because he had threatened to kill her if she did.

[6]

She testified further that he again had sexual intercourse with her on another occasion when the schools had closed but this time it happened in the house they occupied at the time. She was busy sweeping when the appellant undressed her, put her on her bed and had sexual intercourse. He again did not make use of any protection. It was after the second incident that she told her brother and her mother. At the request of her mother, her brother took her to the police station where after they took her to the hospital for medical examination.

[7]

The medical report, which was handed in by agreement, reflected that the complainant was observed on 18 February 2018 at 19h30 while the incident was alleged to have taken place on 16 February 2018. Dr. Mokone who observed her noted the following clinical findings:

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Ratshibvumo AJ

a)

Whitish vaginal discharge.

b)

Abrasion between labia major and labia minor.

c)

Difficult to visualise hymen properly – no comment.

d)

Long hair seen on vagina and taken as evidence

[8]

Under conclusion, the doctor noted that the finding was in keeping with genital irritation, which is keeping with the history of sexual assault. Unfortunately, not much turned out of the evidence material collected by the doctor in this examination as according to the statement by the forensic analyst...