THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case No: 137/2012

In the matter between

AVHAPFANI VICTOR TSHIMBUDZI

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Tshimbudzi v The State (137/12) [2012] ZASCA 200
(30 November 2012)

Coram:
Heher, Mhlantla and Bosielo JJA, Swain and Mbha AJJA

Heard:
16 November 2012

Delivered: 30 November2012

Summary: Criminal – appeal against both conviction and sentence –
appellant convicted of rape of a 13 year old female by regional
magistrate – matter referred to high court for sentencing in terms of
s 52 of the Criminal Law Amendment Act 105 of 1997 – charge sheet
silent on whether the rape is covered by the provisions of the
Criminal
Law
Amendment
Act
–
appellant
sentenced
to
imprisonment for life – high court not having confirmed the
conviction of the appellant by the regional magistrate as being in
accordance with justice – effect of failure by the magistrate to
enquire into the complainant’s ability to distinguish between the
truth and lies and the ability to understand the import of the oath –
cumulative effect of irregularities – the difference between truth and
untruth and the consequences of telling a lie – the record marred by
a series of inaudibles.

___________________________________________________________

ORDER
___________________________________________________________

On appeal from:  Limpopo High Court, Thohoyandou (Hetisani J, sitting
as a court of first instance):

The appeal against both the conviction and sentence is upheld and both
are set aside.

___________________________________________________________

JUDGMENT
___________________________________________________________

BOSIELO JA (HEHER AND MHLANTLA JJA, SWAIN AND
MBHA AJJA CONCURRING):

[1] This matter is a regrettable comedy of errors. The record reveals
clearly that commencing from the plea stage in the regional court
culminating in sentencing in the High Court, Limpopo, nothing was done
according to the book. The record is riddled with irregularities. What
must be considered is the nature of the irregularities and their cumulative
effect.

[2] Aggrieved by the conviction and sentence imposed by the court
below (Hetisani J) the appellant is appealing with the leave of this court.

[3] This appeal came before us 12 years after the appellant was
sentenced to imprisonment for life. However, this delay is substantially

due to the appellant’s own inaction as he only submitted his application
for leave to appeal to this court in April 2011.

[4] It is clear from the record that substantially large parts of it that
was put before us were inaudible when it was transcribed. These
‘inaudibles’ are so frequent and of so indefinite a duration that we are
unable to determine what the proper outcome of the proceedings in the
trial should have been. Furthermore, we are of the view that, given the
poor state of the record, the learned judge in the court below was in the
same situation and that he could not have been able to satisfy himself that
the proceedings were in accordance with justice. Perhaps this is the
reason why he failed to record that he had considered the convictions of
the appellant by the regional magistrate and, found it to have been in
accordance with justice. The failure by the court below to confirm that the
proceedings were in accordance with justice means that the conviction
cannot stand subject to the possibility of a remittal to the high court
which will be considered below.  Because the trial judge could not in the
circumstances properly proceed to the sentencing phase the sentence also
falls to be set aside.

[5] In addition there are a number of irregularities which were
committed during the trial which in our view are of a serious nature. First,
the appellant was charged with the rape of a 13 year old female. This
offence falls under s 51(1) read with Part 1 of Schedule 2 of the Act. The
alleged rape took place between 30 April 1999 and 2 May 1999. Upon
conviction the appellant was referred to the high court for sentencing in
terms of s 52 of the Act. In the absence of any facts that qualify as

substantial and compelling to justify a lesser sentence, as contemplated in
s 51(3)(a), of the Act, the appellant stood to be sentenced to
imprisonment for life. However, this could only be done if the appellant
had been advised either through the charge sheet or in whatever manner
during the trial but before sentence that he faced an offence which fell
within the ambit of the Act and that the possible sentence was life
imprisonment. A failure so to advise the appellant means that it was
incompetent for the court below to sentence him to imprisonment for life
in terms of s 51(1) of the Act. See S v Legoa 2003 (1) SACR 13 (SCA); S
v Ndlovu 2003 (1) SACR 331 (SCA) and S v Makatu 2006 (2) SACR 582
(SCA).

[6] Furthermore, it is an essential requirement of the Act that for the
appellant to be convicted of rape under s 51(1) read with Part I of
Schedule 2 of the Act, there had to be admissible evidence that the
complainant was below the age of 16 years. There was none. The doctor
also recorded in the medical report that she was 13 years old. The opinion
by the medical doctor which is contained in the medical report, the J88, is
inadequate as it is not supported by any facts. The doctor did not testify.
Ordinarily, one would have expected the medical doctor to lay down a
basis for his opinion perhaps by reference to the medical examination
which he conducted. Absent such evidence, we find that notwithstanding
the fact that the medical report was admitted as evidence by consent, it is
not adequate to prove the complainant’s age satisfactorily. The age of the
complainant is crucial in determining the precise nature of the offence for
which the appellant is charged and the possible sentence to be imposed
upon his conviction.

[7] A further irregularity relates to whether the complainant was
validly sworn in in terms of s 162 of the Criminal Procedure Act 51 of
1977 (CPA) before she testified. The record shows that she was sworn in.
(‘d.s.s’). However this is not enough as the complainant was a minor.
Given the age of the complainant it was essential that the regional
magistrate make some enquiry to satisfy himself that the complainant
understood and appreciated the distinction of telling the truth and a lie.
Only in the event that the magistrate was satisfied that the minor
possessed this ability should the magistrate then have proceeded to
determine whether the said minor fully understood the nature and import
of giving evidence under oath. The magistrate conducted none of these
enquiries and as a consequence the complainant’s evidence was rendered
inadmissible.

[8] It should be clear from the above exposition that the trial was
characterised by serious irregularities which strike at the heart of the
conviction and the fairness of the trial. The cumulative effect is such as
cannot be corrected by any remittal.

[9] In the result, the appeal against both the conviction and sentence is
upheld and both are set aside.

_________________

L.O. BOSIELO

JUDGE OF APPEAL

Appearances:
For Appellant
:
M Madima

Instructed by:
Justice Centre, Thohoyandou

Justice Centre, Bloemfontein

For Respondent
:
A Madzhuta

Instructed by:

Director Public Prosecutions, Thohoyandou

Director Public Prosecutions, Bloemfontein