S v Toba and Another (ECJ 2004/019) [2004] ZAECHC 24; [2006] 4 All SA 492 (E); 2008 (1) SACR 415 (E) (26 August 2004)

27

FORM

A

FILING

SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO : 019/2004

PARTIES: BONGANI TOBA First Appellant

PUMZILE MENDU Second Appellant

and

THE STATE Respondent

RERENCE NUMBERS -

Registrar: CA & R 964/02

DATE HEARD: 2003 JUNE 24, AUGUST 13; 2004 MARCH 3, AUGUST 16

DATE DELIVERED: 26 AUGUST 2004

JUDGE(S): JENNETT, JANSEN AND PICKERING JJ

LEGAL REPRESENTATIVES -

Appearances:

for the State/Applicant(s)/Appellant(s): TN PRICE for the accused/respondent(s): H OBERMEYER

Instructing attorneys:

Applicant(s)/Appellant(s): GRIEBENOW

ATTORNEYS Respondent(s): DIRECTOR

OF PUBLIC PROSECUTIONS

CASE INFORMATION -

Nature of proceedings : FULL BENCH APPEAL

Topic: Remittal to trial court for further evidence – inadequate performance of legal representative alleged.

IN THE

HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

Case No.: CA&R 964/02

Date delivered:

In the matter between:

BONGANI TOBA First Appellant

PUMZILE MENDU Second Appellant

THE STATE Respondent

JUDGMENT

JANSEN, J:

The appellants were prosecuted in the Port Elizabeth Regional Court on a charge of rape. The allegation against them was that they on 23 June 1997 at or near Newton Park in the regional division of the Eastern Cape wrongfully and intentionally raped the complainant B.M.. Both appellants pleaded not guilty. Only the complainant was called to give evidence on behalf of the State. Neither of the appellants, who were legally represented at the time, testified. Both appellants were convicted. Both of them were sentenced to 36 months correctional supervision, and in addition thereto to 7 years imprisonment conditionally suspended for 5 years.

Both appellants noted an appeal against their conviction, and both of them now apply for an order setting aside the conviction and sentence and to have the matter remitted to the regional magistrate for further evidence to be led on behalf of the appellants.

It appears from the record placed before us that the two appellants were arrested on 15 July 1997. Their first appearance in court was the next day, 16 July. Their first appearance in the regional court was apparently on 5 January 1998. Both appellants were released on bail. Various remands followed and eventually the trial started on 15 August 2000 when the complainant was called to testify. Her evidence in chief was completed. The attorney appearing on behalf of the appellants, Mr Lineen Swarts, then started cross-examining the complainant. At stages she became emotionally upset. This apparently prompted the regional magistrate to postpone the case to the next day. The complainant completed her evidence on 16 August. The case was then postponed at the request of the prosecutor to 6 October 2000 to enable him to call further witnesses. On that day the matter was further postponed. Several postponements followed until the matter was again called on 7 August 2001. The prosecutor then closed the State’s case without calling another witness.

It is common cause that the appellants’ attorney thereafter applied for the discharge of the appellants in terms of section 174 of the Criminal Procedure Act. This application was opposed by the prosecutor. The magistrate’s judgment on this application reads as follows:

“Ja, ek stem saam met die aanklaer dat die klaagster was glad nie so ‘n swak getuie nie. Op hierdie stadium word ontslag geweier. Die datums en voorvalle wat u na verwys is u ook besig om heeltemal te oordryf. Ontslag geweier.” (The second last sentence was clearly directed to the defence attorney, Mr Swarts.)

The appellants’ attorney thereafter addressed the magistrate as follows:

“Edele kan ek net gou my kliënte nader. Edele ek sluit die saak van die beskuldigdes.”

The matter was then postponed to 28 August 2001 when the magistrate gave judgment convicting both appellants as charged. The case was then again postponed until 29 August 2001 for sentence. On that day the regional magistrate indicated that having considered the situation and in particular the fact that the appellants at the time were still relatively young, he required a pre-sentence report. The case was again postponed for one month. It appears from the transcribed record that the sentence was imposed on 28 September 2001, but form J15 indicates further postponements because of either the illness of the regional magistrate or that of the defence attorney. Sentence was eventually imposed on 31 January 2002.

From information placed before this Court it appears that the appellants’ attorney Mr Swarts noted an appeal against the appellants’ convictions. That original notice of appeal somehow disappeared. It, however, appears from the first appellant’s affidavit, which was made in support of the application to have the matter remitted to the regional magistrate for further evidence to be led, that the appellants’ appeal was originally placed on the roll for hearing on 22 October 2002. Mr Swarts approached counsel to draw heads of argument a week prior to the heads having to be filed. Counsel, having studied the record, then indicated to Mr Swarts that he was of the view that the appellants’ failure to testify made it difficult for him to argue the case on the merits. Mr Swarts then approached another advocate who expressed the same view. It is common cause that this second advocate was Mr Price, who eventually argued the case for the appellants. Counsel indicated (it is not clear to whom) that he was of the view that the appellants had not been given a fair trial based on what the appellants had told him about the decision not to testify. As a result of the advice the appellants received from counsel, they instructed Mr Swarts to withdraw the appeal from the roll to enable the appellants to consult in depth with another attorney, Mr Griebenouw, who was then briefed to represent them. After consultations with Mr Griebenouw and Mr Price, it was decided to bring the present application by way of Notice of Motion. An amended Notice of Appeal was also filed. The relief sought, as formulated in the appellants’ Notice of Motion dated 5 February 2003, reads as follows:

“That their conviction and sentence be set aside and the matter be remitted to the Trial Court for the hearing of the evidence of the two Appellants as well as any other witnesses that they may wish to call”

The matter was then placed on the roll for 24 June 2003. My colleagues Leach J and Froneman J presided. Certain defects in the appellants’ papers were pointed out to counsel and it was agreed to postpone the matter to 13 August 2003. It was also indicated by the learned Judges that they would require argument on a possible increase of the sentence in the event of the appeal and the application being unsuccessful. On 13 August 2003 the appeal again came before Leach and Froneman JJ. For reasons that do not appear from the record the matter was then postponed sine die. It was again set down for 3 March 2004. On that day I was presiding with my colleagues Pickering and Liebenberg JJ. It was pointed out to counsel that it might be in the interests of their clients’ case if an affidavit from Mr Swarts be obtained in view of the allegations made by the appellants, to which I will refer later. The matter was again postponed sine die. It was then set down before this Court on 16 August 2004 and we decided to hear argument in spite of the fact that the appeal record placed before us was not properly paginated, secured and indexed and had various other shortcomings. We decided to hear the case so that finality could be reached in a matter that had unnecessarily been dragged out for years.

Mr Price based the appellants’ case mainly on the application for remittal and then, in the alternative, on an argument that the appellants’ appeal should be allowed in that the State had not proved the guilt of the appellants beyond reasonable doubt.

The prerequisites for a successful application for remittal as formulated in S v de Jager 1965 (2) SA 612 (A) at 613C-D, and thereafter applied in numerous cases, are (a) there should be some reasonably sufficient explanation based on allegations which may be true why the evidence sought to be led was not led at the trial, (b) there should be a prima facie likelihood of the truth of the evidence and (c) the evidence should be materially relevant to the outcome of the trial. The onus of establishing the requirements set out above rests upon an applicant seeking remittal. Smalberger JA in S v H 1998 (1) SACR 260 (SCA) at 262g-h pointed out the fundamental and well established principle of our law that, in the interests of finality, once issues of fact have been judicially investigated and pronounced upon, further evidence will only be permitted in special circumstances. Accordingly, the power to remit a matter to a trial court to hear such evidence will be sparingly exercised and only when the circumstances are exceptional.

The appellants’ whole case in their application for remittal is based on an allegation that they did not have a fair trial in that the attorney who represented them, Mr Swarts, did not conduct their defence properly. The first appellant in his founding affidavit set out the appellants’ case as follows:

“5. I have been informed that bearing in mind the evidence led by the complainant, bearing in mind the fact that no other evidence apart from submissions on our part was led to gainsay that evidence and the fact that the Magistrate clearly did not dismiss her evidence at the end of the State case and found in fact that she was, to a degree reliable, and that we ought to have testified in the matter or at least led evidence in the matter. (sic)

6. When the State closed its case, Mr Swarts indicated to us that he was going to apply for our acquittal in terms of Section 174. He however did not explain to us what Section 174 entailed and we were unaware of the procedure that he was following. We were unaware of the test that the Court had to use at that point in time and were unaware that it differed substantially from the test that is used at the end of the Trial. When our Application for discharge was dismissed, Mr Swarts again approached us and informed us that he was going to close our case. Both my co-Applicant and I questioned this procedure and asked him if it would not be better if we testified and challenged the evidence of the complainant since it was our view that she was lying and secondly since the Magistrate had not rejected her evidence. Mr Swarts informed us that it would be very dangerous for us to testify and that it was not in our best interest to testify. He did not at any point explain to us what the effect would be of us not testifying on our acquittal or conviction.

At the time of the hearing I was 21 years of age whilst I was 18 years of age at the time of my arrest. I was clearly a lay person as far as the law was concerned since I had no previous convictions and had not previously been involved in any way in any court case of any nature whatsoever. I was therefore totally unaware of my rights in terms of the Constitution nor was I aware of the effect that my failure to testify or lead evidence would bring.

I have since been informed that had I testified and had the Trial Court accepted my evidence I would have been acquitted. I have been informed that even if my evidence was not of the highest standard, bearing in mind the fact that the complainant’s evidence was also not of any great merit, the chances are that I would have been acquitted. I had every intention of testifying and denying my guilt under oath. It was purely the advice and the insistence of my Attorney that led me not to testify.

It is my view that had I testified my evidence would have been accepted as being true or at the least the Magistrate would not have been able to make a finding that the State had proved its case beyond reasonable doubt. As such, it is my respectful submission that I have not been given a fair trial since the legal representative did not act in my best interests.”

We were referred by Mr Priceto numerous reported cases, locally and from abroad, where the principle is set out that each and every accused is entitled to a fair trial. The principle is clear that ineffective and improper defence by a legal representative, who has not prepared himself or herself properly, or who has not conducted proper consultations with the accused, may lead to a conclusion that the accused did not have a fair trial. We were referred to section 35(3) of the Constitution which inter alia that every accused person has a right to a fair trial which includes the right to adduce and challenge evidence. We were also referred to S v Pienaar 2000 (2) SACR 143 (NC); S v Charles 2002 (2) SACR 492 (E); S v Mofokeng 2004 (1) SACR 349 (WLD) and S v Chabedi 2004 (1) SA 477 (WLD). It needs no argument, however, that each case should be considered on its own facts.

It was in casusuggested that Mr Swarts, appearing on behalf of the appellants, did not conduct the appellants’ case at the trial properly. To illustrate this point the police docket of the case against the appellants was placed before us. Our attention was, however, in argument only drawn to the fact that the doctor’s report filed in the docket does not appear to corroborate the complainant. It was suggested that in view of the failure of the prosecutor to call the doctor the attorney on behalf of the appellants should have called him. I am, however, of the view that the medical evidence would not have taken the matter any further. The complainant conceded at the time that she had been sexually active. She conceded in cross-examination that she had not sustained any injuries to her private parts. She was confronted by Mr Swarts during cross-examination with the doctor’s report. It also appears that the complainant was only examined three days after the incident which resulted in the conviction of the appellants. In any event, the onus was on the State to prove the guilt of the appellants beyond reasonable doubt. The fact that no supporting medical evidence was produced by the State could be held against the State and not against the appellants. In any event, it was the decision of Mr Swarts not to call medical evidence. It was Mr Swart who was conducting the appellants’ case. The appellants left their defence in his hands.

It is clear from the authorities quoted infrathat an accused person, unless there are exceptional circumstances, has to abide the decision of his counsel conducting his case.

A reading of the complainant’s evidence leads to the conclusion that the complainant was intensively cross-examined by Mr Swarts. In cross-examination he referred to her statement made to the police, which was handed in as an exhibit, and to certain minor contradictions in her evidence when compared with her statement. He also, as I have said before, confronted the complainant with the medical report. He furthermore confronted her with a statement made by a friend of the complainant to whom she reported the matter (the complainant’s friend was not called, apparently because she could not be traced). The complainant was further confronted with certain entries made by the investigating officer in the police diary. It is clear from the conduct of the cross-examination that Mr Swarts had studied the police docket and that he was well prepared for the case. The defence of the appellants, namely that the complainant had not been raped, and that she had not been inside the house of the first appellant where the alleged rape had taken place, was put to the complainant. Mr Swarts is an experienced attorney with years of practice. It appears from the magistrate’s judgment that Mr Swarts also in the past had experience as a public prosecutor. No two defence attorneys are likely to cross-examine in the same manner. Some counsel are more effective with cross-examination than

others. It can however never be argued that, because the cross-examination of counsel A is not as effective as that of counsel B, counsel A’s clients have not had a fair trial. Not everyone can cross-examine as effectively as a Theunie Steyn or a Johann Kriegler could. What does appear from the record is that on two occasions the intensive cross-examination of the complainant by Mr Swarts moved her to tears.

The main point upon which the “no-fair- trial”argument was based is the fact that Mr Swarts advised the appellants not to go into the witness box and give evidence to rebut the complainant’s version.

The respondent, in its opposition of the appellants’ application for remittal, invited Mr Swarts to make an affidavit dealing with the allegations made by the appellants in their founding affidavits. Mr Swarts’s reply to the respondent reads as follows:

“I have taken cognisance of the allegations contained in the founding and supporting affidavits and I have also considered your request to furnish you with an affidavit in reaction to the allegations. I have even approached Counsel for advice in this regard. Having done all of this, I respond as follows:

That whilst I am deeply hurt by the allegations leveled at me personally, more so, bearing in mind the Regional Magistrate’s remarks at p 39:25-27 of the record confirming the fact that I am an experienced practitioner, I am nevertheless duty bound to act in accordance with the remarks expressed by Zietsman J in the case of S. v.Boesman and Others, 1990 (2) SACR 389 (E) at 401g-h and preferably not get involved in a matter where I am obliged to give evidence against my erstwhile clients. In the light hereof I must respectfully decline your request.”

It is clear from this that Mr Swarts, quite correctly, did not want to get involved with the State’s opposition of the application because of the privilege which existed between him and the two appellants. This letter was placed before us on 3 March 2004. Mr Price at the time indicated that the appellants had decided to waive the privilege, as they had the right to do. Opportunity was then given to the appellants to obtain an affidavit from Mr Swarts. The appellants’ present attorney, Mr Griebenouw, thereupon directed a letter to Mr Swarts in the following terms:

“Soos u bewus is het ek bogenoemde aangeleentheid by u oorgeneem. Die Appèl was op 3 Maart 2004 op die rol in die hof te Grahamstad.

Die regter het die saak sine die uitgestel.

Sy Edele Regter Jansen en Pickering het gelas dat ‘n afskrif van Bongani Toba se eedsverklaring aan u voorgelê word vir kommentaar.

Die Regter versoek dat u kommentaar die van ‘n eedsverklaring sal aanneem.

Ingeslote hierby vind asseblief ‘n afskrif van Bongani Toba se eedsverklaring vir u gerief.”

A completely wrong message was conveyed by Mr Griebenouw to Mr Swarts. We never gave any orders or made any requests as conveyed to Mr Swarts. We only gave opportunity to the appellants to approach Mr Swarts as indicated above. Mr Swarts reacted immediately, requesting Mr Griebenouw to supply him with a copy of the court order. It took Mr Griebenouw three and a half months to respond to Mr Swarts’s request and on 28 June 2004 Mr Griebenouw directed a letter to Mr Swarts in the following terms:

“We refer to your letter dated 11 March 2004.

I apologize for my comment that the judge made an order requesting you to comment on the allegations in Toba’s affidavit. I misunderstood council. (sic)

You are now invited to comment on Toba’s allegations if you so wish. Please ensure that, if you intend to make any comments, that such comments reach us on or before 16 July 2004 so that we can incorporate any comment you wish to make in our papers.”

Two days later Mr Swarts replied, stating that he had already indicated his position in previous correspondence. He preferred to say nothing more. The previous correspondence referred to by Mr Swarts is clearly the letter to the Director of Public Prosecutions quoted above. The fact that this application was heard without the benefit of Mr Swarts’s reaction to the appellants’ allegations should be blamed on Mr Griebenouw. He first conveyed the wrong impression to Mr Swarts and thereafter, in particular, he failed to inform Mr Swarts that the two appellants waived the privilege that existed between them and that he was in the light thereof invited to make an affidavit.

In support of his argument that Mr Swarts should have called the two appellants to the witness box Mr Price referred to the following passages in the judgment given by the regional magistrate:

“By hervatting het die staatsaanklaer sy saak gesluit, waarop mnr Swarts ontslag gevra het in terme van art. 174 van die Strafproseswet. Die aanklaer het dié aansoek ge-opponeer, ek het die aansoek van die hand gewys en uitdruklik genoem dat die klaagster nie so ‘n swak getuie was nie, en dat die aspekte waarna mnr Swarts verwys, nie haar geloofwaardigheid vernietig het nie. Hy het hierna met sy kliënte gepraat, en summier die verdedigingsaak gesluit. Ek moet ook byvoeg dat mnr Swarts geen groentjie is nie, hy is ‘n ervare regsverteenwoordiger wat self jare in die streekhof aangekla het.

Beide kante het my met hulle optrede effens tussen die duiwel en die diep blou see gelaat. Ek het oorweging daaraan gegee om self ‘n klomp getuies te roep, maar daarteen besluit aangesien ek te ver en te nou by die verrigtinge betrokke sou raak, en dit is nie my plig nie. Ek moet oordeel op wat voor my is.”

………………………………………………………………………………..

“Ek het ietwat van ‘n ongemaklike gevoel oor die situasie waarin ek geplaas is. Ek kan die staat kritiseer én die verdediging kritiseer vir hulle optrede, maar aan die einde van die dag sit ek met ‘n geloofwaardige getuie wie se getuienis nie weerspreek word nie, en wat ek géén rede kan vind om te verwerp nie, en het ek feitlik geen ander keuse as om die twee beskuldigdes skuldig te bevind nie. Beide word SKULDIG bevind soos aangekla.”

It is not clear exactly what the magistrate had in mind when he made those remarks. The construction given by Mr Price to the remarks was that the magistrate expected the two appellants to testify in their defence and that he probably would have acquitted them had they gone into the witness box and had they denied having raped the complainant. Another construction is that the magistrate was caught unawares because he expected the prosecutor to place more evidence before him as the case had been postponed for exactly that reason. It also appears from the judgment that the magistrate had the record transcribed after he had been addressed by the prosecutor and Mr Swarts on the merits, in particular in order to check on the so-called deficiencies in the complainant’s evidence. That is an indication that Mr Swarts submitted a strong and convincing argument in favour of his clients.

Matters of a similar nature have served before our courts in the past. One such a case was S v Louw [1990] ZASCA 43; 1990 (3) SA 116 (AD) where counsel for the accused also closed his client’s case without calling him to testify. It appears from the judgment in that case that counsel informed the attorney, who was sitting next to counsel in court, that he was going to close the defence case without leading any further evidence for the reason that there was no case for his client to meet. Counsel closed the defence case without prior consultation with his client. In his judgment Hoexter JA dealt with the criteria with reference to which a Court of Appeal will decide whether or not to order the further hearing of evidence. He referred to the basic approach which he summed up by saying that before fresh evidence will be received in a criminal appeal the circumstances must be exceptional. The learned Judge continued on page 123J as follows:

“In addition, before a conviction and sentence are set aside in order that further evidence may be heard, certain initial requirements must be satisfied. For purposes of the present appeal it is necessary to refer to no more than the very first of these initial requirements: there must be offered some explanation which the Court regards as reasonably sufficient to account for the fact that the evidence in question was not given at the trial.

In the instant case the explanation for the failure to lead the evidence in question is simple. The appellant’s counsel, well-knowing that the appellant was ready, willing and able to testify in his own defence deliberately decided not to call the appellant as a witness. But the explanation is not reasonably sufficient. It is palpably deficient. The discretion and duty of counsel in regard to the calling of witnesses, including the accused, and in regard to the conduct of the case where the accused wished to act contrary to his counsel’s advice, were considered by this Court in R v Matonsi 1958 (2) SA 450 (A). At 456A-C Schreiner JA remarked:

‘I have found no Roman-Dutch or South African authority which supports the view that the accused in a criminal case can question his counsel’s conduct of the trial and claim relief because counsel “prevented” him from giving evidence. The opposite view was indicated in R v Mauruven 1953 (2) SA 779 (N), though Broome JP refrained from deciding that the rule that the litigant is bound by what his representative does is entirely inflexible. Such Roman-Dutch writers as I have consulted emphasise the importance and high status of the advocate and I see no reason to doubt that the authority over the conduct of the case which he had been instructed to fight on behalf of a client was quite as full as that of the English barrister (cf Klopper v Van Rensburg 1920 EDL 239 at 242). The English cases show that, in general, trials cannot be conducted partly by the client and partly by counsel. Once the client has placed his case in the hands of counsel the latter has complete control and it is he who must decide whether a particular witness, including the client, is to be called or not.’

In the instant case the absence of a reasonably sufficient explanation for the failure to lead the evidence of the appellant at the trial represents a fatal flaw …”

In the Matonsi case, quoted by Hoexter JA, the following statement appears at page 457F:

“But since the appellant took no steps to withdraw his counsel’s mandate and expressed no disagreement with the conduct of his case until after the verdict had been given the trial was regular and the correctness of the verdict cannot be challenged on appeal to this Court.”

In the present case it appears that the appellants only became dissatisfied with the services rendered by Mr Swarts when they had consultations with Mr Price. The appellants’ initial dissatisfaction was with their conviction. They instructed Mr Swarts to note an appeal on their behalf, which he did. On their behalf Mr Swarts approached counsel and only thereafter, having received a negative report on the prospect of success on appeal, was Mr Price briefed. Although it is not specifically stated by the appellants, the only inference to be drawn is that on the advice of Mr Price the present application was brought after Mr Swarts’s power of attorney had been withdrawn and Mr Griebenouw appointed.

Another matter in which an allegation was made that the accused did not have a fair trial because of the conduct of his counsel is reported as S v Halgryn 2002 (2) SACR 211 (SCA). Paragraph 14 of the judgment of Harms JA which appears on pages 216-217 reads as follows:

“The constitutional right to counsel must be real and not illusory and an accused has, in principle, the right to a proper, effective or competent defence. Compare S v Majola 1982 (1) SA 125 (A) at 133D-E. Whether a defence was so incompetent that it made the trial unfair is once again a factual question that does not depend upon the degree of ex post facto dissatisfaction of the litigant. Convicted persons are seldom satisfied with the performance of their defence counsel. The assessment must be objective, usually, if not invariably, without the benefit of hindsight. Compare S v Louw [1990] ZASCA 43; 1990 (3) SA 116 (A) at 125D-E. The Court must place itself in the shoes of defence counsel, bearing in mind that the prime responsibility in conducting the case is that of counsel who has to make decisions, often with little time to reflect (cf R v Matonsi 1958 (2) SA 450 (a) at 456C as explained by S v Louw (supra). The failure to take certain basic steps, such as failing to consult, stands on a different footing from the failure to cross-examine effectively or the decision to call or not to call a particular witness. It is relatively easy to determine whether the right to counsel was rendered nugatory in the former type of case but in the latter instance, where counsel’s discretion is involved, the scope for complaint is limited. As the US Supreme Court noted in Strickland v Washington [1984] USSC 146; 466 US 668 (1984) at 689:

‘Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has been unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.’

Not everyone is a Clarence Darrow or F E Smith and not every trial has to degenerate into an O J Simpson trial.”

There can in the present case be no question about the fact that the complainant was properly cross-examined by Mr Swarts. I have already referred to above to the cross-examination. Mr Price in arguing the appellants’ case inadvertently referred to the severe cross-examination of the complainant on one point. It was specifically stated by Mr Price that the appellants do not seek an order for the complainant to be recalled for further cross-examination. Ultimately the only major ground upon which the appellants’ case is based is that they were not called by Mr Swarts to give evidence. It was, however, conceded by the appellants that the decision not to call them as witnesses was discussed by Mr Swarts with them. He advised them not to get into the witness box. He told them that it would be very dangerous for them to do so. He must have come to that conclusion after he had had consultations with the appellants. The only inference to be drawn from the fact that he thought it would be dangerous for the appellants to testify is that he, as an experienced attorney, believed that they would not stand up to cross-examination and that their defence would probably have been rejected by the regional magistrate. It is clear from the record that Mr Swarts attempted to persuade the regional magistrate to acquit the appellants because of weaknesses in the evidence of the complainant. Mr Swarts must have thought that it would be safer for the appellants not to testify in the sense that he would in that event more probably have secured their discharge.

In my view, it has not been established that the appellants did not get a fair trial. That brings me back to the conclusion reached by Hoexter JA in the Louw case (supra). The appellants’ attorney, Mr Swarts, well-knowing that it would be dangerous for the appellants to testify in their own defence and having conveyed that to the appellants deliberately decided not to call the appellants as witnesses, but to close their case. The explanation for the failure to lead the evidence in question is not reasonably sufficient, but palpably deficient, to account for the fact that the evidence was not given. On this basis the application must fail.

There is also another fatal defect in the appellants’ case on which their application for remittal must fail. I have referred above to the application as formulated on behalf of the appellants. They seek an order remitting the case to the regional magistrate for their own evidence to be heard as well as any other evidence that they may wish to tender. No further particulars were supplied. It was not revealed to this court what evidence the appellants wish to place before the regional magistrate. This is a fatal defect in the appellants’ application. In S v Loubscher 1979 (3) SA 47 (AD) at 55F-G Rumpff CJ said the following:

“Voordat ek oorgaan om die verklarings te analiseer, is dit nodig om daarop te wys dat sub-art (3) van art 316 van die Strafproseswet by implikasie vereis dat die inhoud van die verdere getuienis voor die Hof gelê moet word. Indien die inhoud van die getuienis nie voor die Hof gelê word nie, kan dit onmoontlik gesê word dat, indien dit aanvaar word, die getuienis redelikerwys tot ‘n ander uitspraak of vonnis aanleiding kan gee. Anders gestel, daar moet getuienis voor die Hof gelê word en indien dit bevind word dat hierdie getuienis redelikerwys tot ‘n ander uitspraak of vonnis aanleiding kan gee, dan kan die aansoek slaag mits aan die ander vereistes van art 316(3) voldoen word.”

Although Loubscher’s case deals with an application in terms of the provisions of the substituted section 316(3) of the Criminal Procedure Act the principle set out there is also applicable when application is made for remittal to a magistrates’ court. Dealing with a remittal by a High Court on appeal from a magistrates’ court Kriegler and Kruger in the 6th edition of Hiemstra’s Suid-Afrikaanse Strafproses at page 833 said the following:

“Terugverwysing kan ook geskied op aansoek van die beskuldigde, gewoonlik met die doel om getuienis voor die verhoorhof te plaas wat die beskuldigde versuim het om aan te bied. Die benadering ten opsigte van landdroshof en hoër hof appelle is wel in beginsel eenders maar daar is bepaalde verskille, beide wat betref die maatstawwe en die prosedure. Bygevolg moet presedente van die een met oorleg by die ander gebruik word.”

The learned authors thereafter discussed the criteria to be applied when an application for remittal is considered and referred specifically to the case of De Jager (supra). The criteria set out in De Jager’s case referred to above are in essence the requirements set out in the substituted section 316(3) referred to in Loubscher’s case (supra). Although not specifically discussed by Smalberger JA in the case of S v H (supra), it was accepted by him that the prerequisites for a successful application for remittal as formulated in De Jager’s case are also applicable in an application for remittal to a regional court. When the requirements as set out in Loubscher’s case quoted above are applied, this Court can never say, because the contents of the evidence proposed to be led is not before us, that, if accepted, it would result in a different verdict. On the basis of this fatal defect alone the appellants’ application for remittal cannot succeed.

In the result, the application for remittal should be dismissed.

That leaves the appellants’ alternative case i.e. their appeal against their conviction. The complainant testified that on the day in question she was on her way home from school, waiting for transport, when the second appellant, who had a relationship with a friend of the complainant, arrived on the scene. It was in the vicinity of a bus stop. The second appellant requested her to keep an eye on his school bag. He went to a house across the street. After a while he called her and requested her to bring the bag for him. She did not want to do that but because she could not leave the bag where she was, she decided to take it to the house where the second appellant was. The door of the house was open. There was however nobody in sight. When she walked in to put the bag inside the house, the second appellant suddenly appeared and locked the security gate behind her. She was directed to a room. First appellant then also appeared. Inside the room she was told to undress and, when she refused, the first appellant took out a knife and threatened her. A struggle ensued, but she was overpowered. Eventually, appellant no. 2 and thereafter no. 1 had intercourse with her against her will. At the time appellant no. 2 raped her she was held down by no.

1. When no. 1 raped her no. 2 held her down. She was eventually allowed to leave the house but only after she had made herself respectable at the insistence of the appellants. This happened on a Friday afternoon. She immediately phoned the police and reported the matter and she waited for the police to attend to her. The police, however, did not arrive. She was afraid to tell her mother about it and on Monday at school she again phoned the police who then arrived and took a statement from her and she was medically examined. During the struggle she received a scratch wound, apparently at the back of her neck which bled and which caused some blood on her school uniform. This was apparently seen by one or both of her sisters. That was the only evidence placed before the regional magistrate.

The regional magistrate had the record typed and he carefully considered the evidence and in particular the criticism leveled against the complainant’s evidence by Mr Swarts. The regional magistrate gave a well considered judgment and made a specific finding as to the credibility of the complainant. She made a good impression on the regional magistrate. The regional magistrate dealt in detail with the points of criticism leveled against her evidence as pointed out by Mr Swarts on behalf of the appellants. The regional magistrate, quite correctly in my view, regarded the discrepancies pointed out as minor and of no significance. The complainant gave evidence more than three years after the incident and after she had made her statement. Minor differences are expected. No material differences between her statement and her evidence are apparent. It is further clear from the regional magistrate’s judgment that he did take into account the shortcomings in the State’s case and that he at a certain stage apparently also considered calling further evidence. At the end of the day, however, as was correctly pointed out by the regional magistrate, he was left only with the evidence of the complainant. She testified that she had been raped by the two appellants. No evidence to dispute her version was placed before the regional magistrate. He was, quite correctly in my view, entitled to convict the two appellants. The appeal against their conviction cannot be sustained.

That leaves the sentence. Following upon the indication given by my colleagues Leach and Froneman JJ, referred to above, counsel on behalf of the respondent submitted that this Court should increase the sentence and he suggested a sentence of 15 years imprisonment on each appellant.

The crime of which the two appellants were convicted took place before the implementation of Act No. 105 of 1997, which introduced the minimum sentence of life imprisonment for rape where the complainant had been raped by two or more persons. The sentence was therefore entirely within the discretion of the regional magistrate. It is clear that he carefully considered the sentence. He, in particular, took note of the fact that the complainant did not sustain any serious bodily injuries although the incident had a negative psychological effect on her. He also took into account the personal circumstances of the appellants and in particular the fact that they were at the time they committed the offence respectively only 18 and 17 years old. The fact that he had to sentence the two appellants for a crime committed by them some three and a half years ago also played a role.

A sentence imposed in the exercise of a trial court’s discretion will only be increased if the sentence imposed is shockingly lenient. The regional magistrate at the time decided to keep the appellants out of prison. He did that by imposing correctional supervision. In addition thereto a fairly long period of imprisonment was imposed, although suspended. Although the sentence may appear lenient, in particular when the heavier sentences presently passed after introduction of Act No. 105 of 1997 are considered, the sentence does not appear to me to be shockingly inappropriate. When an increase of the sentence is considered, and in particular a custodial sentence, regard may also be had to the time period between the commission of the offence and the date when the sentence is imposed. The incident occurred some seven years ago. I do not think that it would be in the interest of justice if the sentence be increased to direct unsuspended imprisonment.

In the result, I would grant an order dismissing the appeal as well as the application, and confirm the convictions and sentences of both the appellants.

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J

C H JANSEN

JUDGE

OF THE HIGH COURT

JENNETT, J:

I agree. It is so ordered.

M

P JENNETT

PICKERING, J:

I agree.

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J

D PICKERING