S v Mnguni

• Jurisdiction: South Africa
• Judge: Louw J and Keightley AJ
• Judgment Date: 30 July 2014
• Citation: 2014 (2) SACR 595 (GP)
• Docket Number: A 12/2014
• Hearing Date: 30 July 2014
• Counsel: Information not provided
• Court: Gauteng Division, Pretoria

S v Mnguni
2014 (2) SACR 595 (GP)

2014 (2) SACR p595

Citation	2014 (2) SACR 595 (GP)
Case No	A 12/2014
Court	Gauteng Division, Pretoria
Judge	Louw J and Keightley AJ
Heard	July 30, 2014
Judgment	July 30, 2014
Counsel	Information not provided

Flynote : Sleutelwoorde

Fundamental rights — Rights of mentally disabled complainants in criminal B cases — Failed to address question of mental disability under s 1 of Criminal Law Amendment Act 32 of 2007 — Further failure to secure appropriate psychological expert evidence led to further violation of rights — Secondary victimisation by presiding officer and prosecutor by calling complainant into court to determine themselves if mentally disabled — Violation of rights to privacy, dignity, bodily integrity. C

Rape — Of mentally disabled person — Prosecution of such cases — Directive issued by National Director of Public Prosecutions in terms of s 66 of Criminal Law Amendment Act 32 of 2007 — Prosecutors obliged to comply with directives — Prosecutors to ensure all statements in docket D are accurate and complete, including expert evidence of psychological nature, in order to prove whether victim was mentally disabled as intended by s 1 of Act.

Headnote : Kopnota

The appellant was convicted in a regional court of rape in contravention of E s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 in that he had raped a 20-year-old mentally retarded woman. He was sentenced to life imprisonment, the minimum sentence as prescribed by s 51 of the Criminal Law Amendment Act 105 of 1997 (the Act) for the rape of a person who was mentally disabled as defined in s 1 of the Act. The appellant appealed against his conviction and sentence. The state led F the evidence of a clinical psychologist who had examined the victim and prepared a report indicating that the victim was mentally retarded and appeared to be functioning below the age of 15 years. The magistrate was not impressed with this evidence. The state also led the evidence of a nurse who specialised in sexual assault cases but this witness could not say whether the victim could appreciate the nature and reasonably foreseeable G consequences of a sexual act. The magistrate then called the complainant into the court to see whether she was mentally disabled. On appeal,

Held, per Louw J, that the onus was on the state to prove that the victim was mentally disabled as contemplated in one of the four categories mentioned in the definition in s 1. The nature of the mental disability required to be proved was specific and it was not sufficient for the state to merely prove H that the victim was mentally disabled, retarded or challenged. The evidence presented by the state in this regard fell short of what was required. (Paragraph [4] at 597f – g.)

Held, further, that, in the absence of this necessary evidence, the trial court should have convicted the appellant of rape, which was a competent conviction on the charge on which he was arraigned. (Paragraph [9] I at 598h.)

Held, further, that, in the circumstances where there were no substantial or compelling circumstances which could have justified a lesser sentence than the prescribed minimum sentence of 10 years' imprisonment on a conviction of rape, that was the sentence which the trial court should have imposed. (Paragraph [10] at 598i.) J

2014 (2) SACR p596

A Held, further, per Keightley AJ, that the National Director of Public Prosecutions had published directives on the prosecution of sexual offences which required public prosecutors to adopt a victim-centred approach to give priority to the emotional and psychological wellbeing of the complainant; to make every effort to reduce secondary traumatisation; and to make additional B efforts in this regard in respect of mentally disabled complainants. The directives also obliged prosecutors to determine whether any expert evidence would be required, including evidence of a psychological nature. Critically for the present case, they had to ensure that all statements in the docket, including expert statements and reports, were accurate and complete. (Paragraph [17] at 599h – 600a.)

Held, further, that the failure of the state to secure appropriate psychological C expert evidence had led to a further violation of the complainant's rights, in that the presiding magistrate had called the complainant into court so that she and the prosecutor, as well as the appellant who was sitting in court, and his legal representative, could see for themselves whether the complainant was mentally disabled. Not only was it highly irregular for a court to try to formulate an opinion in this matter but it was also fundamentally contrary D to the complainant's rights to privacy and dignity. She was effectively put on display and discussed as an object by the magistrate and others involved in the trial. It was to be hoped that the National Prosecuting Authority, public prosecutors, and the magistracy would take heed of the shortcomings in the manner in which expert evidence had been dealt with in the present case in order to avoid similar repetitions in the future...