THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

NOT REPORTABLE

Case No: 20079/14

In the matter between:

TSHIFHIWA LEROY RAVELE

APPELLANT

and
-
THE STATE

RESPONDENT

Neutral citation:  Ravele v S (20079/14) [2014] ZASC 118 (19 September

2014)

Coram:
Cachalia and Bosielo JJA and Mocumie AJA

Heard:
20 August 2014

Delivered:
19 September 2014

Summary:
Appeal against both convictions and sentences ─ rape read with
s 51(1) of the Criminal Law Amendment Act 105 of 1997 and s 3 of the
Criminal Law Amendment Act 32 of 2007─ right to a fair trial ─ attention of the
appellant that he could be sentenced to life imprisonment not drawn at the
outset ─ duplication of convictions ─ kidnapping committed as part of rape ─
proper approach to formulating charges under s 51 of the Criminal Law
Amendment Act 105 of 1997 ─ whether sentence imposed is appropriate ─ no
rehabilitative element infused in previous sentences.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from Limpopo High Court, Thohoyandou (Booi AJ sitting as
court of first instance):
1 The appeal in respect of the conviction on counts 1 and 3 is upheld.
2 The appeal in respect of the conviction on count 2 is dismissed.
3 The appeal in respect of the sentence on count 2 succeeds.
4 The order of the trial court is set aside and the following order is substituted
in its place:
‘(a) The accused is found not guilty on counts 1 and 3.
(b) The accused is found guilty on count 2.
(c) The accused is sentenced to 8 years’ imprisonment’.
5 The sentence referred to in para 4(c) above is antedated to 9 June 2010.
______________________________________________________________

JUDGMENT
______________________________________________________________

Mocumie AJA (Cachalia and Bosielo JJA concurring):

[1] The appellant, who was 20 years old at the time of the commission of
the offences discussed below, was convicted on 4 June 2010 by the Limpopo
High Court, Thohoyandou (Booi AJ sitting as court of first instance) on two
counts of rape read with s 3 of the Criminal Law Sexual Offences and Related
Matters Amendment Act 32 of 2007 (the Criminal and Sexual Offences
Amendment Act) and s 51(1) and Part I of Schedule 2 of the Criminal Law
Amendment Act 105 of 1997 (the Act), as amended, and one count of
kidnapping. The appellant was sentenced to life imprisonment on both counts
of rape and five years’ imprisonment for kidnapping, the latter being ordered
to run concurrently with the sentence imposed on count 2.

[2] The appellant was initially granted leave to appeal against the
sentence only by the court a quo, on 8 December 2011. However, upon
reading the record, it became apparent that the appellant may have been

improperly convicted on all counts. Accordingly, at the request of the presiding
judge, as the Supreme Court of Appeal has no jurisdiction to entertain an
appeal on the convictions in the absence of leave having been granted by the
high court, the registrar of this court directed a letter to the legal
representatives of both the appellant and the state to:
(a)
confirm an instruction from the appellant that he wished to appeal the
convictions; and
(b)
approach the high court promptly to obtain the necessary leave; and
(c)
to bring the contents of the letter  ─ which included a discussion on the
difficulties with each of the convictions, including the failure of the trial judge to
properly explain the nature of the charges to the appellant – to the attention of
the court.
The court a quo duly granted leave to appeal on conviction on all counts, on 7
August 2014.

[3] In view of what will be discussed hereafter under s 51(1) of the Act, it is
well to remind oneself at the outset that, in invoking the minimum sentencing
regime contained in the Act, compliance with fair trial requirements is
essential. Thus an accused person must be informed of the charges he is
facing with sufficient detail to enable him or her to answer properly to such
charge. Section 35(3) of the Constitution1 provides for a fair trial for an
accused person, while s 84(1) of the Criminal Procedure Act 51 of 1977 (the
CPA) stipulates that the charge must contain the essential particulars of the
offence.2 This court has also in numerous judgments stated that a failure to
inform an accused person that he or she is facing a serious charge under the
Act and the sentence which may be imposed, may, depending on the facts

1 The Constitution of South Africa, 108 of 1996.
2 Section 35(3)(a) of the Constitution provides: ‘Every accused person has a right to a fair
trial, which includes the right ─ (a) to be informed of the charge with sufficient detail to answer
it.’
Section 84(1) of the CPA: ’Subject to the provisions of this Act and of any other law relating to
any particular offence, a charge shall set forth the relevant offence in such a manner and with
such particulars as to the time and place at which the offence is alleged to have been
committed, and the person, if any, against whom and the property, if any, in respect of which
the offence is alleged to have been committed, as may be reasonably sufficient to inform the
accused of the nature of the charge.’

and circumstances of the case, result in a finding that it would be unfair to
sentence the accused in terms of the Act.3

[4] In this case, in respect of count 1, the State properly conceded that the
appellant had not been properly informed of the nature of the charges against
him. This issue need not be considered further because it is also clear from
the evidence that the appellant was wrongly convicted.

[5] The incident giving rise to count 1 occurred on 8 November 2009. The
issue was whether or not the appellant had consensual sexual intercourse
with the complainant Ms Khuthadzo Gadizi. It is common cause that she was
with her friends, Lorraine Thabelo Ndou (Lorraine), Nancy and Christina
Mudau (Chrissie), at Lorraine’s home where the appellant found them around
19h00. She testified that the appellant had in their presence and at knifepoint
dragged her to his home where he raped her on two or three occasions. She
left his home the following morning and reported the incident.

[6] The appellant’s version was that the complainant accompanied him
voluntarily from Lorraine’s home, had sexual intercourse with him and slept
over before departing in the morning. In response to a question why she
would falsely have implicated him, he explained that this was probably
because she wanted to conceal the fact that she had accompanied him
voluntarily, from her current boyfriend, Hulisani.

[7] There were several inconsistencies in her version. I mention four which
I think are significant. First, some of the state witnesses contradicted the
complainant’s version that she had been dragged away from Lorraine's home
against her will. They therefore confirmed the appellant’s version on this
aspect. Secondly, Lorraine confirmed that the complainant was in a
relationship with Mavhona, which also corroborated the appellant’s version
and contradicted her denial. Thirdly, the evidence of Hulisani, the
complainant’s current boyfriend as to what transpired at the appellant’s house

3 See S v Legoa 2003 (1) SACR 13 (SCA); S v Ndlovu 2003 (1) SACR 331 (SCA); S v
Makatu 2006 (2) SACR 582 (SCA); S v Kolea 2013 (1) SACR 409 (SCA).

directly contradicted her version as to what had happened. He testified that he
went to look for her at the appellant’s home, but when he knocked on the
window nobody responded. He then left. In contrast she testified that Hulisani
saw the appellant dragging her away and remonstrated with him, which he
flatly denied. Finally, she testified that the appellant raped her several times
throughout night. At the end of her evidence it was not clear how many times
─ on her version ─ she had been raped. At one point during her testimony she
said that it had happened on three occasions; at another, she said that it had
happened twice.

[8] I should add that the medical evidence, on which the court a quo relied
heavily to support the conviction, showed no more than that sexual
intercourse had taken place. There were, as in similar circumstances in most
cases of this nature, no obvious injuries to corroborate the alleged rape. It
follows that the court a quo misdirected itself in finding that the medical
evidence provided corroboration for the rape.

[9] In the circumstances the appellant ought to have been found not guilty
on this count. The state quite properly conceded before us that the conviction
could not be sustained.

[10] In respect of count 2, it does not appear what charge was put to the
appellant. There was no indictment or summary of substantial facts in the
court record. As in count 1, it appears that the appellant was made to plead to
a charge of rape in terms of s 51(1) of the Act without any reference to the
circumstances sought to be proved in Part 1 of Schedule 2; the relevant
provision for rape, namely para (b)(i) where the victim is alleged to be under
16 years of age. The judgment is silent on why a sentence of life
imprisonment was imposed, but it is clear that this sentence was imposed
because the judge assumed that the Act was applicable. The State conceded
that a proper charge had not been put to the appellant, and the judge had
misunderstood which provisions of the Act were applicable. In the
circumstances we must approach the matter on the basis that the Act did not
apply. I turn to consider the evidence.

[11] The complainant, who was almost 16 at the time of this incident,
testified that she met the appellant at about 19h00 on 29 November 2008. It
was not dark yet and she recognised him as someone she knew. She testified
that the appellant grabbed her and took her to a nearby church where he
raped her. Thereafter he took her to his house where he raped her again. The
appellant kept her in his house from 19h00 until the next morning, around
5h00.

[12] The appellant’s version was, the complainant wrongly identified him as
the perpetrator. He claimed to have been elsewhere at the time of the
incident. The complainant and her brother were resolute in their identification
of the appellant as the person who kidnapped and raped her that night. They
both testified that they knew the appellant as they reside in the same area.
The appellant did not dispute this. To my mind, this prior knowledge excludes
every possibility of a mistaken identity.4 It follows that the appellant’s version
was palpably false. He was therefore properly convicted on this count.

[13] The circumstances of the alleged rape resulted in the appellant being
charged with two offences: rape and kidnapping. The state accepted that the
conviction on the kidnapping count constituted a duplication of convictions.
The concession was properly made and nothing further need be said about
this count.

[14] Having come to the conclusion that the court a quo erred in sentencing
the appellant to life imprisonment under the Act, it is now open to this court to
consider sentence afresh. The appellant was 20 years of age at the time of
the commission of the offence. He was an orphan. He was married in terms of
customary law. He was temporarily employed at a carpentry workshop
earning a salary of R1600 per month. To his discredit, he had a relatively long

4 See R v Dladla & others 1962 (1) SA 307 (A) at 310B-E. Unlike in S v Mthetwa 1972 (3) SA
766 (A) and S v Charzen & another 2006 (2) SACR 143 (SCA), this case is not a case of total
strangers in which one would have expected the witnesses to explain in detail the peculiar
features with which they identified the appellant.

list of previous convictions ranging from assault to indecent assault.5 He had
attended school until grade 11. It was submitted on his behalf that he showed
remorse. Based on his youthfulness, it was submitted that he was a good
candidate for rehabilitation.

[15] It is trite that rape is not only a very serious offence but it is prevalent in
this country. It is a humiliating, degrading and brutal invasion of the privacy,
dignity and the person of the victim.6 In this case the victim was a young girl of
15 years. She was raped twice by someone she knew and who lives in the
same community.

[16] Regrettably, a Victim Impact Report was not obtained to assist the trial
court in understanding the impact of the rape on the complainant. It is
incumbent on the prosecution to secure such evidence to assist the court to
assess the seriousness and impact of the offence on the victim. We can
however, assume that the complainant suffered some trauma.

[17] The same holds true regarding the failure of the trial court to obtain a
pre-sentencing report on the accused.  No court should proceed to sentence a
youthful person unless it has all the facts relevant to sentencing before it to
enable it to decide on an appropriate sentence. The proper judicial approach
to sentencing was enunciated as follows in S v Siebert:7
‘Sentencing is a judicial function sui generis. It should not be governed by
considerations based on notions akin to onus of proof. In this field of law, public
interest requires the court to play a more active, inquisitorial role. The accused
should not be sentenced unless and until all the facts and circumstances necessary
for the responsible exercise of such discretion have been placed before the court.’

5 2001-10-05, Assault, 30 days IMP; 2002-08-08, Assault, AOG R20.00; 2003-10-13,
Indecent Assault, AOG R100.00; 2003-12-12, Robbery, 4 months’ imprisonment;2004-07-21,
Robbery, 6 months’ imprisonment; 2005-06-17, Abuse of drugs, R1000,00 or 3 months’
imprisonment; 2005-08-03, Assault, 6 months’  imprisonment; 2006-12-14, Assault, 6 months’
imprisonment.
6 S v Chapman 1997 (3) SA 341 (SCA) at 344I-J.
7 S v Siebert 1998 (1) SACR 554 (A) at 558i-559a; S v Matyityi 2011 (1) SACR 40 (SCA) para
15-17.

[18] However, it remains the court’s primary duty to dispense justice,
through imposing well balanced and appropriate sentences which will not only
address the accused’s favourable personal circumstances but will address the
seriousness of the offence and take into consideration the interests of society
which include the victim of the offence committed. Sexual assaults especially
on the most vulnerable of our society, young children, have become endemic
in our society. Our courts have a duty to send a clear message to society that
the courts view such offences seriously and that they are willing and prepared
to impose the kind of sentence which whilst serving as a deterrent both
individual and general, will also serve to protect society against people who
pose a serious threat to their well-being in society. As this court remarked in S
v N:8 ‘Bearing in mind that a sentence does more than deal with a particular offender
in respect of the crime of which he has been convicted ─ it constitutes a message to
the society in which the offence occurred. The interests of society must thus also be
taken into account. The sense of outrage justifiably roused by the offence of rape in
the right thinking members of a South African society in which sexual violence is so
endemic and shows no sign of abating, must . . . be a critical factor in the imposition
of a suitable sentence . . ..’

[19] He has a long list of previous convictions which, on the face of it,
shows a propensity for criminality. He had his first clash with the law at the
tender age of 13 years. Amongst his previous convictions is one of indecent
assault for which he was convicted when he was 14 years old. Nonetheless, it
was wrong for the court a quo to look at the appellant’s previous convictions
and conclude therefrom that there were no prospects for his rehabilitation.
There is no evidence to inform the court of his upbringing, his social and
cultural background, his family structure and whether his upbringing had any
influence on his susceptibility to crime and his anti-social behaviour and
whether he would have been receptive to any rehabilitation program. What is
clear is that he is still relatively young. He requires correction and
rehabilitation, but not destruction,9 lest he returns to the very society from
which he comes more hardened and desensitised to living amongst law

8 S v N 2008 (2) SACR 135 (SCA) para 30.
9 See S v Phulwane & others 2003 (1) SACR 631 (TPD).

abiding citizens. Programs aimed at rehabilitation of young offenders may
give him an opportunity to change his behaviour, especially that towards
women.

[20] Although a sentence of life imprisonment is clearly inappropriate, a
sentence of an exemplary term of imprisonment is nevertheless appropriate,
taking into account the following aggravating factors. The complainant was
well known to the appellant; he was older than her; he took her against her
will and kept her away from the comfort and safety of her home and her
parents for one night. Throughout the trial the appellant maintained his
innocence and showed no remorse. It was only after his conviction that he
claimed to be remorseful. It is in his interest as well as the broader society
that he stays long enough in a correctional facility to allow correctional
services to take him through all the required programs in a meaningful way to
rehabilitate him. Short term imprisonment will have no such desired effect.
Having considered all the facts relevant to sentence, I am of the view that a
sentence of imprisonment of eight years is the most appropriate.

[21] In conclusion, it will be remiss of me to not refer to what this court
stated in S v Makatu,10 namely that regrettably there are many cases which
have come to this court from Limpopo High Court with similar problems
referred to above, with reference to the failure of the State to set out the
provisions of the relevant section and circumstances, ie s 51(1) of the Act.
Unfortunately this has resulted in accused persons not being fairly tried and
appropriately punished for the crimes which they in fact have committed. This
brings the administration of justice into disrepute and erodes public
confidence in the criminal justice system. The prosecution must be meticulous
in their preparation of charge sheets and indictments to avoid a recurrence of
this kind of situation. A copy of this judgment shall be made available to the
National Director of Public Prosecutions (NDPP) to deal with this problem
through proper and advanced training of prosecutors who deal with these
matters.

10 S v Makatu 2006 (2) SACR 582 (SCA).

[22] In the result, the following order is granted:
1 The appeal in respect of the conviction on counts 1 and 3 is upheld.
2 The appeal in respect of the conviction on count 2 is dismissed.
3 The appeal in respect of the sentence on count 2 succeeds.
4 The order of the trial court is set aside and the following order is substituted
in its place:
‘(a) The accused is found not guilty on counts 1 and 3.
(b) The accused is found guilty on count 2.
(c) The accused is sentenced to 8 years’ imprisonment’.
5 The sentence referred to in para 4(c) above is antedated to 9 June 2010.

________________________
B C MOCUMIE
ACTING JUDGE OF APPEAL

Appearances

For the Appellant:

L M Manzini (with him M P Legodi)
Instructed by:
Justice Centre, Polokwane
Justice Centre, Bloemfontein

For the Respondent :
Ms S M Mahada
Instructed by:
The Director of Public Prosecutions,
Thohoyandou
The Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

19 September 2014

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

T L Ravele v S

The Supreme Court of Appeal (SCA) upheld the appeal of the appellant, a 20 year old
offender, against his conviction on one count of rape read with the provisions of s 51(1) of
the Criminal Law Amendment Act (the Act), 105 of 1997 and kidnapping but confirmed the
conviction on another count of common law rape. It furthermore upheld the appeal against a
sentence of life imprisonment for the rape and substituted it with imprisonment for eight
years, taking into account his relative youthfulness and the possibility of rehabilitation. The
SCA held that correction and rehabilitation, are in the circumstances, more appropriate and
not destruction of the youthful appellant.

Regarding count 1 of rape, the SCA held that, given the serious contradictions in the State’s
version, the court a quo erred in finding that the appellant’s guilt had been proved beyond
reasonable doubt and set the conviction aside. Regarding count 3, kidnapping, the SCA held
that as the evidence showed conclusively that the complainant was kidnapped solely to
facilitate the eventual rape, the conviction on kidnapping amounted to a duplication of
convictions and set the conviction aside. With regard to count 2, rape, the SCA found that
the State had not proved the circumstances which brought it within the purview of the Act
which would justify a sentence of life imprisonment. The SCA found that the appellant was
guilty of the common law crime of rape and that in the circumstances a sentence of
imprisonment for eight years was appropriate.
--- Ends ---