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

    	DELETE WHICHEVER IS NOT APPLICABLE
(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES / NO
(3)	REVISED. 

 _____________________	       ………………………………
           DATE			   SIGNATURE

CASE NO: A107/2014

In the matter between:

CHAUKE, COLLINS, TINYIKO 			                                           Appellant			  	          
and

THE STATE					                                                 Respondent

JUDGEMENT

NICHOLLS J:  (MABESELE J CONCURRING)

[1]      This is an appeal against conviction and sentence. The appellant was indicted on four counts - rape, kidnapping, unlawful possession of a firearm and robbery with aggravating circumstances. He was found guilty of rape and ‘common’ robbery by the Regional Court, Alexandra on 18 June 2013. He was sentenced to life imprisonment in respect of the rape charge and 4 (four) years imprisonment in respect of the robbery charge. In addition he was declared unfit to possess a firearm and his particulars were to be entered in the register of sex offenders.
 
[2]     The appellant was refused leave to appeal by the court a quo. On petition to the High Court the appellant was granted leave to appeal against sentence only. In terms of section 10 of the Judicial Matters Amendment Act 42 of 2013, read with section 309 of the Criminal Procedure Act, an appellant sentenced to life imprisonment has an automatic right of appeal against both his conviction and sentence. 
 
[3]	Although commencing as a straightforward appeal, the primary issue on appeal is whether the judgment is subject to a review and should be set aside on the basis that the appellant did not receive a fair trial. The appellant’s counsel relies on the unreported full bench judgment of Opperman J in this court. In that matter it was held that section 304(4) of the Criminal Procedure Act does not prescribe how notice in terms of the section 304 (4) was brought to the court’s attention and although the matter was set down as an appeal it was competent to deal with it purely as a review in terms of section 304(4) of the Criminal Procedure Act. As I understand it, that this appeal could be dealt with as a review was not seriously disputed by counsel for the respondent. 

1. The grounds of review are threefold:
(i)	The appellant who was unrepresented at the trial was never informed that he could get legal representation at state expense.
(ii)	The presiding officer did not adequately assist the accused who was unrepresented.
(iii)	The presiding officer descended into the arena to the extent that he did not appear impartial, but appeared to have made up his mind that the appellant was lying prior to the close of the defence case. 

[4]	These irregularities, so it is contended, are of such a serious nature that they offend the right of an accused person to a fair trial as enshrined by the Constitution. As a result, the court is urged to declare the proceedings invalid without going into the merits.

[5]	The first ground is ill-conceived. The appellant had legal representation at his bail appeal. It is unknown whether these were Legal Aid attorneys. At the commencement of the trial he was represented by attorneys from Legal Aid at state expense. Although various portions of the record relating to his initial appearances (where he was also indicted on other matters), seem to be missing, what is clear is that he was represented by Mr Mengoai, an attorney with Legal Aid. In view of the seriousness of the case Mr Mengoai sought the assistance of his colleague Ms Mputle to help convince the appellant to be represented by an attorney. 

[6]	On 13 November 2012 the Magistrate postponed the case for a week in order that the appellant could employ the services of an attorney. A week later on 20 November 2012 it was again postponed for the same reason. On 5 December 2012 Mr Mashambe represented the appellant. However on 16 January 2013, the appellant insisted on conducting his own defence. It is noted that the Magistrate once again explained the implication of the possible sentence of life imprisonment. It is ludicrous to suggest that on all these occasions the appellant was unaware of his right to have legal representation at state expense. In fact, it appears that at least for some of his court appearance, he enjoyed precisely that. 

[7]	The second alleged irregularity is that the Magistrate did not adequately assist the appellant, as an unrepresented accused, in conducting his trial. Firstly, copies of the case docket were made available to the appellant. Secondly, a perusal of the record shows that the Magistrate carefully and painstakingly explained to the appellant all his rights at the different stages of the trial. At the beginning of the trial he was informed that he had an opportunity to disclose his defence:
“This means that you can tell the court why you are pleading not guilty. The court can ask you questions to establish the points in dispute, but you do not have to answer me, you still have the right to remain silence”.

[8]	When the appellant indicated that he wished to address the court. The Magistrate intervened to warn him that he must only explain why he was pleading not guilty but not give the “whole story”. Once the appellant indicated that his defence was consensual sex with the complainant, the Magistrate asked if he was formally admitting to the having sex with the complainant but advised him that he did not have to assist the state in proving the case against him. The Magistrate requested the interpreter to assist him in ensuring that he could record this. Presumably through the services of the interpreter this was confirmed. 

[9]	Before the cross examination of the complainant, the Magistrate explained to the appellant: 
“You now have the right to examine the witness. If you do not agree with her evidence you may put questions to her regarding all the facts relevant to this issue. It is expected of you to put your defence to the witness and to point out where you disagree with her evidence. Everything which you place in dispute, you must ask her because the court will have the right to accept that you agree with all those facts that are not disputed by you, understand?”
Further he reminded the appellant to put questions to the complainant regarding the robbery and the kidnapping. 

[10]	After the state had closed its case, the Magistrate explained his rights to him in the following manner:
“Sir, you have now, the state has closed its case against you, you now have the opportunity to put your case to the court. You can do that by giving evidence yourself, you can call witnesses to testify on your behalf. Evidence is tendered under oath, where after the prosecutor will have the right to cross-examine you and your witnesses. You do not have to testify, and you have the right to remain silent. However, the court must warn you that if you remain silent, the only evidence is that of the state, on which the court must make a finding. Further you are informed that a denial of the allegations, tendered together with your plea, and propositions made in your favour by you to the state witnesses, have no evidential value, and if you wish the court to have regard to that, you should repeat it under oath. 
After ascertaining that the appellant would testify and that no other witnesses would be called, the Magistrate postponed the case. On 18 June 2013 the appellant testified in his own defence. 

[11]	The high watermark of this complaint is that the appellant was not informed that he could order the transcript of the complainant’s evidence given against the appellant’s co-perpetrators, who for some unknown reason, were arraigned separately in the High Court. The complainant testified that she was called to an identification parade. She was asked if she had testified in the case of the co-perpetrators.  Her response was “I was called in to Magistrate High Court”. She then said that she knew nothing further about the outcome of the case. I am in agreement with counsel for the state that it is unclear whether she actually testified or merely attended court in anticipation of testifying and if she did testify whether this was finalised. In any event in view of the appellant’s defence of consensual sex and the evidence of the doctor of forceful penetration, it is doubtful what value the transcript would have been to the appellant. 

[12]	A further criticism levelled at the Magistrate was that he did not discharge the appellant in terms of section 174 on the charges of kidnapping and unlawful possession of a firearm, at the close of the state’s case. On the latter charge it is not clear that there no was no case to answer. The complainant stated somewhat confusingly that “the man who was in possession of the firearm to the person who is here today, the accused, your worship and then both of them undressed me…” In any event Counsel for the appellant conceded that there was no prejudice to the appellant as he was acquitted of these charges. However, he persisted that this oversight is indicative of the Magistrate’s general attitude towards the appellant. As regards the kidnapping it is not clear on the complainant’s version whether the kidnapping was a separate offence or part of the rape. 

[13]	This then leads me to the final and what the appellant’s counsel described as his most compelling argument, namely that the Magistrate descended into the arena and showed his bias against the appellant. For this submission he relies on three passages towards the end of the appellant’s cross-examination. 
The first is an exchange that the Magistrate had with the appellant regarding the improbability of his co-perpetrator waiting for the appellant:	 
“No they would not have gone to the same place hey? Rogers waited there and after you reached him he would have gone to 11th Avenue and you would have gone to 16th avenue to your place, is that not so? Is Rogers stupid hey?
---Rogers is a person that I do not socialise with most of the times Your Worship but after looking at the way, when I saw him and the appearances [indistinct]…[intervenes]
Yes.
---Your Worship I could see Your Worship that he is not an aggressive man.
Okay you grew up with this man you would know if he is stupid or not. You sat with him in the taxi from Pretoria to Alexandra, you could not tell if he is stupid or not?
---Your Worship we take the taxi from Limpopo.
Of from Limpopo to here, you know whether he is stupid or not, is that not so?
The Magistrate was attempting to clarify why Rogers would wait for the Accused and the complainant to finish their business and then proceed to his own place of residence, instead of getting off the taxi first and proceeding to his place of residence anyway.

[14]   The second is an instance when the Magistrate says to the appellant:
			“You are evading questions ne?” 
The Magistrate said this in response to the accused not answering the Magistrate’s question as to why Rogers would wait for the accused and the Complainant before going to his place of residence.

[15] 	The final comment was made after the appellant gave two contradictory versions relating to his house key. The Magistrate then said:
			“You see sir you are making up your stories.”
The Magistrate said this in response to the accused first saying that his house key was with someone else and then saying that his house key was under the mat.

[16]	The appellant’s argument is that these comments, particularly the latter can only be interpreted as the Magistrate telling the witness that he is lying. Accordingly, the only reasonable inference to be drawn is that the learned Magistrate was not open-minded, impartial and fair during the trial. As a result the appellant was not afforded his constitutional right to a fair trial and it is argued that this court should set aside the proceedings. 

[17]	Reliance is placed on S v La Grange where the Supreme Court of Appeal found that the trial should be declared a nullity as a result of the bias of the    presiding Judge. It was found that the Judge in that matter made up his mind at an early stage of the proceedings that the state witnesses were telling the truth and that the accused were lying. After an extensive analysis of the record, the court quoted almost 9 pages where the presiding officer descended into the arena. His bias was apparent. Many of the questions were intended to discredit the accused, compounded in many instances by disbelief and scepticism. 

[18]   The court at paragraph [14] said:
“A cornerstone of our legal system is the impartial adjudication of disputes which come before our courts and tribunals. What the law requires is not only that a judicial officer must conduct the trial open-mindedly, impartial and fairly, but that such “manifest to all those who are concerned in the trial and its outcome, especially the accused”. … “An impartial judge is a prerequisite for a fair trial. The integrity of the justice system is anchored in the impartiality of the judiciary.”

[19]     In the circumstances of that case the court found that it was unnecessary to go into the merits and the convictions were set aside on the basis of the irregularity only. The matter remitted to the High Court for re-trial before a different judge. 

[20]	It is correct that presiding officers should guard against conduct which could be perceived as being in any way partisan. Indeed our law reports are replete with such warnings. The pertinent question, however, is whether the irregularity is of such a nature that it vitiates the trial. In the end, the final test is whether the accused person received a fair trial. In S v Scott-Crossley the Judge was severely criticised for his conduct. He descended into the arena and directly told the accused that he was lying. Notwithstanding the above, the court did not set aside the proceedings on the grounds of this irregularity. Instead the appellant was convicted of a lesser offence.

[21]	In this matter too, while the learned Magistrate’s comments towards the end of the accused’s cross examination, are somewhat disquieting, the record is not replete with instances where he displayed bias and partisanship against the appellant. To the contrary, he conducted himself in a proper and fair manner until confronted with patently contradictory and improbable versions of the appellant. At this stage he then expressed his credulity and disbelief. 

[22]	In the circumstances of the case before us I am of the view that despite the learned Magistrate’s unfortunate comments at the end, nonetheless viewed holistically, the appellant was afforded a fair trial.

[23]	The merits of the appeal on conviction cannot be overlooked. These are extremely poor and whilst counsel for the appellant emphasised that he did not have instructions to concede the merits, he stated that he could not argue that the appeal had prospects of success. He suggested that on occasion such as this, a court was bound to “reluctantly set aside a conviction”. It was further pointed out that should the conviction be set aside, it would be on a pure technicality and in terms of section 313 read with section 324, and the State would be at liberty to institute proceedings de novo. 

[24]	The complainant testified that she was on her way back from a funeral in Pretoria where she boarded a taxi to Tembisa. The three occupants of the taxi, including the driver, were all related. The passenger, who the appellant described as Rogers, was the son of the taxi driver.  After driving for some time the complainant was dragged out of the taxi into the open veld. She later learnt that this occurred in Alexandra. Her bag and cell phone was taken from her. The taxi drove off. First Rogers and then the appellant raped her in the veld. After this ordeal she made her way to a tavern where she received help, first being taken to the police station and then to a doctor. 

[25]	The appellant’s version was so contradictory and fraught with improbabilities that it does not bear repetition save to say that he claimed that the sex was consensual. At first he said it was because, although having just met each other there was a ‘love’ relationship. Later he said that it was a financial arrangement whereby he agreed to pay the complainant R50 which was increased to R100 because the condom burst. On his version the complainant demanded the money because she did not have enough money to pay for a taxi first to Daveton and then on to Tembisa, an allegation vehemently denied by the complainant. The appellant’s version is that they had consensual sex in an abandoned house on cardboard which was strewn over the floor. 

[26]	Although the complainant was a single witness, her evidence was clear consistent in most aspects. Importantly, her evidence was corroborated by the medical doctor who examined her the same evening. In coming to the conclusion that there was forced penetration, the doctor noted that there was:
(i)	grass on the perineum indicating that the rape had been in the veld;
(ii)	a lot of blood on the pubic hairs;
(iii)	bruising on the  posterior fouchette and fossa navicular; and 
(iv)	general swelling of the vagina.

[27]	In my view the learned Magistrate cannot be faulted for convicting the appellant of rape and robbery of the complainant.

[28]	As regard to sentence the personal circumstances of the accused are nothing out of the ordinary. He is single with two children. He was 30 years old at the time of the rape. He has a standard 8 education and before his arrest supported himself by doing piece jobs as a bricklayer. The appellant has 3 (three) previous convictions:
(i)	Assault with intent to do grievous bodily harm, 1999, sentenced to a fine of R600 (six hundred) or 2 (two) months imprisonment;
(ii)	Possession of Dagga, 2005, sentenced to a fine of R100 (one hundred) or 10 (ten) days imprisonment;
(iii)	Possession of an unlicensed firearm, 2010, sentenced to a fine of R15 000, 00 (fifteen thousand) or 18 (eighteen) months imprisonment. 

[29]	It is correct that the appellant spent 2 (two) years and 8 (eight) months as an awaiting trial prisoner. The blame for much of this delay lies squarely at the feet of the appellant who kept changing legal advisors until he elected to defend himself. In S v Radebe the time spent incarcerated before being sentenced, was held to be merely one of the factors to be taken into consideration when determining sentence. Clearly the time spent awaiting trial takes on less importance where the accused is sentenced to an indeterminate sentence. 

[30]	Because the rape was by more than one person, the mandatory minimum sentence was life imprisonment. The Magistrate after dealing with the appellant’s personal circumstances correctly found that there were no substantial and compelling circumstances to justify the imposition of a lesser sentence. That a gang rape is particularly traumatic for women requires no further elucidation - this is the very reason why the legislature saw fit to impose the maximum sentence for this offence. In aggravation of sentence, it appears that there was some degree of pre-meditation in that all three occupants of the taxi seemed to have planned the rape and the attack on the appellant at some point during the journey when they went from Pretoria to Alexandra, and not to her chosen destination. Further, the appellant shows no remorse and maintains his innocence. 

[31]	In conclusion the learned Magistrate cannot be faulted for convicting the appellant and for imposing a sentence of life imprisonment.
In the result I make the following order:
The appeal on conviction and sentence is dismissed.

____________________________
C. H. NICHOLLS
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG

I agree

____________________________
M. M. MABESELE
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG

Appearances

Counsel for the Appellant			:  Adv. EA Guarneri
Instructing Attorneys			:  Legal Aid South Africa

Counsel for the State			:  Adv. M van Heerden
			:  National Prosecuting Authority 
			 
Date of hearing			:  22 February 2018
Date of judgment			:  23 March 2018