REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

     ______________________	______________________
     DATE			        	SIGNATURE

CASE NO:  A8/2018

In the matter between:

MAZIVI: DUMISANI ADRIAAN 	Appellant

and

THE STATE	Respondent

	JUDGMENT

INGRID OPPERMAN j
INTRODUCTION
[1]	This is an appeal against sentence only.  On 22 September 2017, the appellant, Mr Mazivi, was convicted in the Tembisa regional court of rape in contravention of section 3, read with sections 1, 55, 56(1), 57, 58, 59, 60 and 61 of the Criminal Law Amendment Act (Sexual Offences and related matters), 32 of 2007 having been legally represented during his trial.   
[2]	He was sentenced to life imprisonment and accordingly and in terms of section 309(1)(a) of the Criminal Procedure Act, 51 of 1977 (‘the CPA’) read with sections 10, 11 and 43(2) of the Judicial Matters Amendment Act, 42 of 2013, has an automatic right to appeal against both his conviction and sentence. The appellant, personally, filed his notice of appeal in which he appealed against his sentence only and attached, to his notice of appeal, an affidavit in which he confessed to the crime of rape. The appellant did thus not exercise his right to appeal his conviction.
SUMMARY OF THE EVIDENCE
[3]	During approximately June 2014, when the complainant was just 13 years of age, her mother, father and two of her three siblings visited Mozambique. Upon their return her mother announced that her husband (the complainant’s father and appellant in this case) had visited a Sangoma who had told the appellant to have sexual intercourse with his first born being the complainant. The complainant protested but they told her that if she did not do as she was told, that she should leave the home. The appellant then left the complainant with her mother and instructed her to persuade the complainant to do as she was told. Her mother said that if she did not do this deed, the family would not have money in the house and she and the appellant would chase the complainant away. Her mother then gave her one tablet of unknown description, to drink. The appellant arrived and he told the mother to leave with the other siblings. The complainant wanted to leave with them but the appellant said she should stay behind to clean the house. Whilst cleaning the house the appellant over powered her by tripping her. When she fell, he lay on top of her and raped her. She tried to scream but he covered her mouth and with his other arm, pinned her down. She sustained injuries as, after the rape, there was blood on the floor.
[4]	In the evening her mother returned and the appellant reported to her what had happened. Her mother laughed it off. When her father returned, he instructed her to clean her blood off the floor, which she did. Her mother had witnessed the blood on the floor.
[5]	Within the next couple of weeks the complainant started contemplating suicide. She swallowed 28 tablets also of unknown description, which caused her immense pain. In addition, the tablets caused her to vomit blood. Her mother treated this by giving her milk to drink. Instead of taking her to the hospital for immediate medical care, her father gave her a beating. 
[6]	During December of 2014, the appellant, his wife and the two younger siblings went to Mozambique leaving the complainant and her sister in Tembisa. The appellant returned during February 2015. Shortly after his return, when the complainant’s younger sister was playing outside, he came inside the house, tripped the complainant and proceeded to rape her. She reported the rape to her younger sister who suggested she tell a friend’s mother. She did not do so as she feared her father who she believed had a gun. The day after this rape, the appellant returned to the home with a friend and asked the friend whether he knew how ‘nice it was to sleep with a younger girlfriend’. The appellant accompanied his friend out, came back and gave the younger sister R2 so she would leave the home. The complainant explained that her father had now become more brazen. She said that he was no longer frightened as he threw her on the bed and raped her without even closing the door. Later her sister came back and she disclosed to her what had happened. The sister again suggested that they tell Nkele’s mother. She did not.
[7]	On the 4th occasion, the appellant bought the young girls Smirnoff Storm. The complainant pretended to drink the alcohol. The younger sister devised a plan. She told the complainant to pretend to be sleeping and that after she was raped, she should not wash. Her father carried the sleeping girl to his bed where he raped, what he thought was a sleeping or inebriated child.
[8]	The younger sister testified and confirmed that the complainant had communicated to her what her father was doing to the complainant. She also confirmed that she had seen her father carrying the complainant to his bedroom. She had told Mama Zanele. 
[9]	Ms Makwakwa, the land lady, testified that she had received a report from the complainant that the appellant was sexually abusing her.                   Ms Modeme testified that she too had received such a report. The complainant was taken to the hospital where a J88 form was completed. The doctor who had examined her did not testify as he could not be located. Another doctor, who had not examined her, testified about his colleagues’ findings contained in the J88. 
[10]	The appellant testified in his own defence. He denied any wrongdoing. He explained how the complainant had arrived with an Indian man in a car, how, because she had brought him into the house, he had slapped her, how the man had offered the appellant R500 to take his daughter to Pretoria and  how, he had refused this. 
[11]	The court a quo rejected the evidence of the appellant and convicted him.

ISSUES
[12]	When the matter came before us, we raised a number of additional issues with counsel and requested further heads of argument. We are most indebted to counsel for assisting the court in this regard.
[13]	The issues on which we required further heads of argument are:
13.1.	Can an accused person waive/abandon/not exercise their automatic right to appeal their conviction?
13.2.	Can an appeal court have regard to an affidavit deposed to by an accused after sentencing but before the appeal is heard?
13.3.	Is the opinion contained in the J88 being: ‘Old injuries/clefts are consistent with chronic penetration’ admissible in terms of sections 212(4) and 213 of the CPA under circumstances where the doctor did not testify?
[14]	Section 309 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 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)’. (emphasis provided)
[15]	The section grants an accused person an automatic right of appeal. It is up to such person to decide whether to exercise such right. In this case, the appellant decided to exercise his automatic right of appeal only in respect of the sentence, which had been imposed on him. No question of waiver or abandonment of such right arose. In my view, it is not for the court of appeal to compel the appellant to exercise his automatic right of appeal in respect of conviction. If that were so, all matters where life sentences are imposed would have to be referred to the High Court as a matter of course. That this is not what in fact occurs, we know. That it ought not occur is, in my view, also clear. Just as a person has a right to remain silent, which she is not obliged to exercise, so too, an accused person, sentenced to life imprisonment by a regional court, has a right to an appeal, which she may, or may not, exercise.
[16]	Whether this court can or should oversee the conviction proceedings was obliquely considered in Moyo v S, case number A204/2017. Whether or not we were obliged to do so, need not be considered as we have in fact done so. Had we been of the view that the conviction cannot stand, we would have allowed or suggested that the appellant exercise his automatic right to appeal in respect of conviction too. The procedure which should be followed in the event of no automatic right of appeal existing and the appeal serving before an appeal court only in respect of sentence but the appellant wanting to raise an issue relevant to conviction, was considered squarely in the Moyo (supra) decision. 
[17]	Nothing in the proceedings relating to conviction necessitates a reconsideration of the appeal in respect of conviction.  The one feature that caused potential concern was that the opinion of the doctor as reflected in the J88 was not included in the factual findings received in terms of sections 212(4) and 213 of the CPA. However, the facts, ie that the hymen was irregular with multiple clefts, with no fresh tears, was rightly received as evidence and considered to corroborate the allegations of rape made by the complainant. 
[18]	 As to whether the court can or should have regard to the affidavit  filed by the appellant when he elected not to pursue his right to appeal his conviction, this court need not pronounce on. Prima facie I would think not. He should, if he were so minded, have applied for leave to lead further evidence, which evidence could then be tested by the state. No such application was brought. Be that as it may, his failure to have appealed his conviction, speaks volumes in and of itself and such fact serves as some comfort that the conviction is sound.  
SENTENCE
[19]	The complainant was 13 at the time of the first incident and the minimum sentencing legislation accordingly has application. In S v PB, 2013 (2) SACR 533 (SCA) at para [20] Bosielo JA formulated the approach by a court on appeal against a sentence imposed in terms of the minimum sentencing legislation as follows:
"[20] 	What then is the correct approach by a court on appeal against a sentence imposed in terms of the Act? Can the appellate court interfere with such a sentence imposed by the trial court's exercising its discretion properly, simply because it is not the sentence which it would have imposed or that it finds shocking?  The approach to an appeal on sentence imposed in terms of the Act should, in my view, be different to an approach to other sentences imposed under the ordinary sentencing regime. This, in my view, is so because the minimum sentences to be imposed are ordained by the Act. They cannot be departed from lightly or for flimsy reasons. It follows therefore that a proper enquiry on appeal is whether the facts which were considered by the sentencing court are substantial and compelling, or not."

[20]	In other words, as Rogers J held in S v GK 2013 (2) SACR 505 (WCC), whether or not there exists substantial and compelling circumstances, is not a discretionary issue but rather a value judgment which judgment a court of appeal is obliged to bring to bear on the facts presented in the court a quo. 
[21]	S v Vilakazi, 2009 (1) SACR 552 (SCA), Nugent JA said at 562G : " it is enough for the sentence to be departed from that it would be unjust to impose it ". To determine whether or not it would be unjust to impose the sentence the court is entitled to consider factors traditionally taken into account in sentencing and referred to as "mitigating factors".
[22]	In S v Nkomo, 2007 (2) SACR 198 (SCA) Lewis JA at 201e-f held as follows: 
"But it is for the court imposing sentence to decide whether the particular circumstances call for the imposition of a lesser sentence. Such circumstances may include those factors traditionally taken into account in sentencing - mitigating factors - that lessen an accused's moral guilt. These might include the age of an accused or whether or not he or she has previous convictions. Of course these must be weighed together with aggravating factors. But none of these need be exceptional."

[23]	I turn now then to the central issue and consider all the circumstances available to the court a quo to assess whether the facts which were considered are substantial and compelling or not, or, put differently, whether it would be unjust to impose life imprisonment.
[24]	The appellant has no previous convictions. He was 41 years of age at the time of sentencing, married with 4 children aged 16 (the complainant), 13 (the sister who helped her during her ordeal), 8 and 3. The appellant was employed as a welder earning an amount of R700 a week. He was the breadwinner. At the time of sentencing the mother had returned to Mozambique with the 8 and 3 year olds. The complainant and the second eldest child were placed in foster care. The appellant spent 2 years and 9 months in custody awaiting the finalisation of the matter. During argument in the court a quo, emphasis was placed on the traditional or cultural belief that might have influenced the appellant. 
[25]	The state called Ms Sekgobela who runs a foster care home. She explained that the police had placed the complainant with her. She described the emotional turmoil the complainant was experiencing when first placed with her. She had suffered nightmares but her condition has improved due to counselling. She observed that this ordeal would stay with the complainant her entire life.
[26]	The court a quo in our view, dealt with the importance of taking a victim-centred approach in offences of this nature, as laid down in S v Matitia 2011 (1) SACR 40 (SCA).  This is important to achieve proportionality and a balance between the interests of society and those of the appellant.  
[27]	It is unfortunate that neither a victim impact report nor a pre-sentencing report relating to the appellant’s circumstances was obtained. Be that as it may, in the context of this particular case, the court a quo had sufficient facts before it to assess the proportionality and the other circumstances relevant to sentence.
[28]	The appellant’s refusal to take responsibility for his actions showed that he was someone who would not easily be rehabilitated.  Not only did he rape his own child but he also put her through the additional trauma of testifying an imputing dishonesty to her in the process. In addition, he suggested that she was having sexual relations with other men and that she had laid the charges because he had disapproved of her conduct. His conduct prior to and during the trial was reprehensible.
[29]	Rape of a child under the age of 16 is a heinous and abhorrent crime, which is why the lawmaker has placed this type of rape in the category of crimes attracting a life sentence in the absence of substantial and compelling circumstances.
[30]	Having considered and examined all the circumstances of this case I am not convinced that the sentence imposed is unjust.
[31]	Apart from all the facts the court a quo considered, there is the fact that there were 4 rapes. Now it is correct that the appellant was neither charged with, nor convicted of, 4 rapes. This court should not (and will not) punish the appellant as though he had been convicted of 4 rapes. However, in my view such conduct (the repeated rapes) shows no remorse, no insight into his wrongdoing. In fact, the appellant became more brazen as time went by. He even boasted about his vile deeds to a friend in front of his teenage daughter. This conduct is aggravating and militates against a finding that substantial and compelling circumstances are present. 
[32]	The appellant, not once, contended that his cultural or traditional beliefs moved him to commit the rapes. No factual foundation has been laid for such a belief – assuming without accepting that it might have had an influence on the sentence to be imposed on him. If the appellant wanted to rely on this he should have claimed this belief. He did not. All that was placed before the court is that the complainant was told that the sangoma had recommended this. Whether or not the appellant had actually held the belief as was communicated by the appellant and his wife to the complainant, was not proved. The court a quo thus rightly disregarded this issue.
[33]	In S v Kwanape [2012] ZASCA 168 at para [15], courts were reminded that we are duty-bound to implement the sentences prescribed in terms of the minimum sentencing legislation and that ‘ill-founded hypotheses that appear to fit the particular sentencing officer’s personal notion of fairness’ ought to be eschewed.’
[34]	The appellant abused his position of trust. He attempted to manipulate the complainant into ‘consenting’ to the sexual intercourse by putting the families’ prosperity into her hands. After raping her, he showed no empathy. He compelled her to clean her own blood off the floor. When she started becoming depressed and attempted suicide, he offered no help. Instead he gave her a beating. He showed no remorse or compassion but repeated his conduct towards his child over a prolonged period of time. At court, instead of finally taking responsibility for what he had done, he sought to make the child a liar. As was stated in S v SMM, 2013 (2) SACR 292 (SCA) at [27] ‘In effect, he victimised her again’.  
[35]	For all the aforegoing reasons I am not persuaded that the court below erred in its conclusion that substantial and compelling circumstances were absent. In my view, the prescribed sentence is indeed proportionate to the offence charged.
[36]	Of considerable concern is the failure by the prosecution to have prosecuted the mother of the complainant. She facilitated the rape of her child, saw her child’s blood upon her return and laughed off her pleas for help. This conduct is deserving of criminal sanction. At the hearing of this appeal, Mr Khumalo advised the court that he had already looked into this feature and would pursue it.
ORDER
[37]	I accordingly grant the following order: 
37.1.	The appeal is dismissed.
37.2.	It is recommended that the Director of Public Prosecutions investigate the facts surrounding the complainant’s mother’s involvement in the commission of the offence.

                                                                  _________________________

                                                                          Ingrid Opperman
                                                              Judge of the High Court
                                                      Gauteng Local Division, Johannesburg      

                                                                                                        I Agree 

                                                                  _________________________

                                                                                                    M Habedi
                                                                   Acting Judge of the High Court
                                                      Gauteng Local Division, Johannesburg      

Heard: 31 May 2018
Further Heads: 7 June 2018
Judgment delivered: 20 June 2018   
Appearances:
For Appellant:  Adv A Mavatha 
Instructed by: Legal Aid South Africa 
For Respondent: Adv SJ Khumalo
Instructed by: Office of the Director of Public Prosecutions