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[2016] ZAWCHC 77
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Masuku v S (A436/15) [2016] ZAWCHC 77; 2017 (2) SACR 321 (WCC) (23 June 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE
TOWN)
CASE
NO: A436/15
REPORTABLE
DATE:
23 JUNE 2016
In the matter between:
SIBUSISO
MASUKU
...............................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
DELIVERED ON 23 JUNE 2016
SHER, AJ:
[1] This is a rather
unusual matter. The appellant was arraigned before the Regional
Magistrate, Cape Town on two counts of
robbery with aggravating
circumstances, in that a firearm was allegedly involved, and one
count of kidnapping. On the one
count of robbery it was alleged
that at the Regency Hotel, Sea Point, he robbed members of staff of
cash, and a bag containing
keys, a cellphone and various personal
items. In respect of the other count, it was alleged that he
had robbed one Gerhard
Van Wyk of a red Alfa Romeo motor vehicle, and
R9 000.00 cash at Kuilsriver. In respect of the remaining
count of kidnapping
it was alleged that he had deprived the said Van
Wyk of his freedom of movement by transporting him in his own motor
vehicle under
threat of a firearm.
[2] The appellant pleaded
not guilty to all three charges. He was legally represented and
tendered a plea explanation.
Other than admitting that he lived
at the Regency Hotel for a period of two weeks, he denied any
knowledge of the alleged robbery
which had been committed there.
As far as the alleged robbery of the red Alfa Romeo was concerned, he
said that when he was
arrested on this charge he was in the process
of buying the motor vehicle from the owner, and that is why he had
the key in his
possession. He denied any knowledge of the
alleged kidnapping. The state then proceeded to call a number
of witnesses.
[3] Yolande Tsubentla
testified that she started working as a receptionist at the hotel in
June 1997. In September 1998 three
men came to stay at the
hotel for a week or so. The appellant was one of them. They
became acquainted with one another, and
the appellant spent some time
talking to her whilst she was on duty at reception. About 6
months later, on 21 March
1999, and whilst she was on duty, the
appellant telephoned her and said he wished to see her. He
later came to the hotel
and they made arrangements to meet at a
nearby convenience store, after Tsubentla’s shift ended.
At the appointed hour
she found the appellant and two other men in a
red motor vehicle, and she accompanied them to a parking lot near the
beach.
The appellant then asked her to tell him where the
hotel’s valuables were kept. She thought he was joking,
but one
of his compatriots pulled out a firearm and pointed it at
her. She proceeded to give them a rundown of where the hotel’s
walk-in safe and guest safety deposit boxes were, and depicted the
location thereof on two sketches she drew for them. The
appellant warned her not to tell anyone what had transpired between
them, and threatened to kill her if he ever found out she had
spoken
out of turn. Two days later, on 23 March 1999, when she
reported at reception for the morning shift she was informed
by a
colleague that the hotel had been robbed. On 25 March 1999 she
was approached by a Capt Swart of the SAPS who confronted
her with
the two sketches, at which point she admitted that she had drawn them
and explained how this had come about. The
police then asked
her to assist them in setting a trap for the appellant. She was
instructed to phone the appellant and to
arrange a meeting with him
outside a department store in the centre of Cape Town and, when he
arrived, Capt Swart and other members
of the police duly arrested
him.
[4] I may point out at
this juncture that in line with the evidence which was given by
Tsubentla, and later Capt Swart, the charge-sheet
reflects that the
appellant was arrested on 25 March 1999. However, his
first appearance in the Regional Court was only
on 27 March
2001, when it was noted that he was in custody on another matter.
[5] I will return to the
aspect of the various attendances before the Regional Court later.
It will suffice, at this stage,
to point out that from his initial
appearance in March 2001 and until he was sentenced on 20 December
2002, the appellant
was reflected as being in custody.
[6] After the evidence of
Tsubentla was concluded on 5 August 2002, the matter was
remanded to the following day for the evidence
of further witnesses.
For the purposes of this matter it is not necessary to traverse such
evidence in any detail.
For the sake of completing the story,
it may be simply be mentioned that evidence was led of how the
Regency hotel and its staff
were robbed by two men on 23 March 1999
and of how, at about midday on the selfsame day, a young woman and
her father found two
bags containing a number of identity documents,
bank cards, and keys, as well as the hotel’s register and the
sketches that
had been drawn by Tsubentla, on a piece of open ground
next to Modderdam Road in Heideveld. The hotel was informed of
the
find and the police duly collected the bags. And that is how the
police got to Tsubentla and the appellant.
[7] At the conclusion of
the evidence of Capt Swart on 6 August 2002, the matter was postponed
for further trial on a number of
occasions. When the matter was
again called on 19 December 2002, the appellant’s legal
representative indicated
that he wished to change his plea to one of
guilty on all 3 charges. To this end, she proceeded to read out
the contents
of a statement which she had prepared on his behalf in
terms of
s 220
of the
Criminal Procedure Act 51 of 1977
(“
the
Act
”), which contained a list of formal admissions by the
appellant, and which had been signed by both of them. In terms of
this
statement the appellant admitted the essential elements of all
the charges and he also admitted that inasmusch as a firearm had
been
used at the time, aggravating circumstances in terms of the
provisions of
s 1
of the Act were present. The appellant
declared in the aforesaid statement that the admissions were made
“
freely and voluntarily without any duress”,
and
that he was ‘sorry’ for what he had done, and he asked
the honourable court to be “
merciful unto
” him.
On questioning by the magistrate, the appellant confirmed that he was
aware of the contents of the statement
and that there was nothing
therein which he disagreed with. He also confirmed that nothing
was missing from the statement.
As he put it: “
everything”
in the statement was “
in order”,
and he
further confirmed that he had signed the statement after reading it,
and after “
understanding the contents”
(sic)
thereof. As a result of these admissions the State closed its case
and the magistrate duly proceeded to convict the appellant
on all
three charges.
[8] The appellant’s
attorney then informed the court that the appellant was serving two
sentences: a sentence of 30 years
imprisonment which had been imposed
in August 2000, and a sentence of 40 years imprisonment which had
been imposed in February
2001. She indicated that the 30-year
sentence had been imposed in KwaZulu-Natal and the 40-year sentence
had been imposed
by the High Court in Cape Town. Because it was
of importance for the magistrate to have exact details of the
appellant’s
previous convictions, as this would impact on the
“
quantum”
of the sentence that he was to impose,
he stood the matter down in order for the prosecutor to make further
enquiries. On
resumption, the prosecutor indicated to the court
that the matter which was heard in KwaZulu-Natal had been before the
Durban High
Court on 26 July 2000 and concerned a charge of
armed ‘bank’ robbery and numerous counts of kidnapping.
The other matter before the High Court in Cape Town concerned a
charge of so-called cash-in-transit robbery, various counts of
attempted murder and possession of a firearm without a licence, as
well as two counts of theft of a motor vehicle. The police
dossier numbers in respect of these offences reflected that they were
committed in or about December 1998.
[9] The prosecutor then
pointed out that the offences of which the appellant had been
convicted in the Regional Court that day,
were committed in
March
1999
, shortly after the offences in respect of which he was
convicted and sentenced by the High Court in Cape Town. As the
magistrate
was still not satisfied with the information that was
before him, particularly in regard to whether the appellant was a
first,
second or third offender, as there were different prescribed
sentences which might apply, the matter was further adjourned. On
resumption of proceedings the following day the prosecutor informed
the court that the offences in respect of which the appellant
had
been convicted and sentenced by the High Court in Durban, were
committed on 6 November 1997. As a result, the appellant
was due to be sentenced by the Regional Magistrate for the third
time, on a charge of armed robbery.
[10] In a well-reasoned
and fair-minded judgment on sentence, the Regional Magistrate set out
the appellant’s personal circumstances
and made reference to
the nature and gravity of the offences for which he had been
convicted, and he paid particular attention
to the cumulative effect
which the sentence he was to impose would have on the appellant, in
order not to punish him unduly harshly.
To this end, although
he sentenced the appellant to 25 years imprisonment on each of the
two counts of robbery (counts 1 and 2),
he ordered that they were to
run concurrently, and in respect of the count of kidnapping (count
3), he sentenced the appellant
to 10 years’ imprisonment. But,
in order to further ameliorate the effect of the sentences he
imposed, he ordered that 15
years of the sentences in respect of
counts 1 and 2 and the entire sentence in respect of count 3 were to
run concurrently with
the sentences which were being served by the
appellant at the time. He also ordered that the balance of 10
years of the sentences
on counts 1 and 2 should also run
concurrently. In effect therefore he sentenced the appellant to only
serve an additional 10 years
on top of his existing sentences.
[11] On 1 September 2005,
some 3 months short of 3 years after he had been sentenced, the
appellant made application to the
magistrate via a new attorney, for
leave to appeal against the convictions and leave to lead further
evidence. To say that
the applications were paltry and sparse
in the extreme would be to do justice to them. In a handwritten
document which comprised
all of 6 paragraphs, the appellant’s
legal representative simply stated that it was the appellant’s
‘submission’
that the attorney who had dealt with his
matter at his trial, had “
influenced”
him to make
admissions “
knowing that they were not part of”
his
“
version of the events”
, and, even though the
appellant had no right to do so absent leave being granted to him in
this regard, she said the appellant
intended to lead ‘new’
evidence to the effect that he was advised that, should he make the
admissions he would be given
a very ‘lenient’ sentence
and it would be “
easier for him”
if the trial was
not proceeded with, and he would in due course show “
good
reason”
for why he had not led such evidence at the trial.
She submitted further that, had the appellant testified in his own
defence and
put his version before the Court, instead of making
admissions in terms of
s 220
, the magistrate “
may”
have acquitted him on all three counts.
[12] As far as the
application for condonation for the late filing of the application
for leave to appeal and leave to lead further
evidence was concerned,
this too was utterly sparse, and in a similar handwritten document
which was a single page long, the appellant
simply contended that
after he had been sentenced he was transferred to various prisons,
and had made enquiries as to what the
applicable procedures were in
order to apply for leave to appeal and “
it took him some
time to find out what to do”
. The appellant said that
thereafter, he had to apply for legal aid and his new attorney had to
apply for the transcripts
which then had to be “
perused”
.
No dates, names or further particulars were provided in regard to
these endeavours or why it took the appellant some 3 years
to carry
them out.
[13] In my view, neither
the application for leave to appeal nor the application for
condonation complied, even cursorily, with
the requirements which
have been laid down for such applications, and they should never have
been entertained by the magistrate.
I may point out, in fairness to
him, that neither of the applications were opposed by the State, a
matter which is cause for concern.
In my view, it is incumbent
upon both the prosecutor and the presiding magistrate in applications
such as these, not to simply
go through the motions and to concede to
leave to appeal being granted where such applications are ill-founded
and have no merit,
and in which the relief which is sought is not
properly made out. I point out further that as far as the
stated intention
of leading further evidence on appeal was concerned,
such application as there was in this regard was desultory and did
not comply
with even one of the well-established and trite
requirements (
vide S v De Jager
1965 (2) SA 612
(AD)).
In granting leave to appeal against the convictions, the magistrate
warned that it was predicated on the grounds that
the appellant had
been improperly advised by his legal representative at the trial, but
that there was no such evidence on record
and the appellant would
have to make application before the High Court by way of an affidavit
or further evidence, before the court
of appeal would be at large to
re-open the matter. No such application was however forthcoming.
[14] It appears that the
appeal against the convictions was eventually enrolled for hearing on
29 September 2007 but for some reason
which is not explained at all
by the appellant on the papers, it only came before this court on
20 March 2009, at which time
it was struck from the roll, in
default of appearance and prosecution of the appeal. In this
regard, counsel for the state
has informed us that no heads of
argument were ever presented by the appellant, and there was no
appearance on his behalf. In the
circumstances the appellant clearly
abandoned his appeal against the convictions.
[15] On 19 March 2015, a
further 6 years after the appeal against the convictions was struck
from the roll in this court, the appellant
made application before
the magistrate for leave to appeal against the sentence which had
been imposed. On this occasion,
the appellant deposed to an
affidavit in support of his application. It is noteworthy that
in this affidavit the appellant
made absolutely no attempt to deal
with the circumstances surrounding his failure to prosecute the
appeal in respect of the convictions,
and in fact the affidavit is
utterly silent in this regard. The appellant simply stated therein
that from the time the sentence
had been imposed, he had felt that it
was unduly harsh and “
too lengthy in time”
(sic).
He said that, because of this, he knew that he had to appeal the
sentence but as he was incarcerated he did not have
the necessary
funds and had to rely on his sister and other family members to
assist him. He averred that he was not visited
regularly by his
sister and other family members and had to rely on promises they made
that they had engaged various lawyers to
assist him, without any
success.
[16] On 30 May 2014
attorney Greeff of Matthewson Gess Inc attorneys was eventually
instructed to investigate the possibility of
lodging an appeal
against sentence. Greeff consulted with the appellant in June
2014 and thereafter commissioned a copy of
the transcript of the
evidence, which was received on 9 July 2014. Having regard
to what he read in the record and the
fact that the appeal against
conviction had been struck from the roll, Greeff advised the
appellant’s family to obtain an
opinion from senior counsel.
Although such opinion was received on 24 September 2014, a
further 5 months went by
before the necessary funds were raised
in order that instructions could finally be given to proceed.
[17] In his affidavit,
appellant set out the basis for his proposed application for leave to
appeal against sentence. He said
that the result of the
addition of a further 10 years imprisonment by way of the
sentence which had been imposed on him by
the Regional Magistrate,
was to increase the overall term of his incarceration to 50 years,
which he had been advised induced “
a sense of shock”
and amounted to a “
cruel and inhumane”
sentence
which was ‘destructive’ rather than rehabilitative and
which “
sacrificed”
him on the “
altar of
deterrence”
.
[18] However,
notwithstanding that the basis for the appeal according to the
appellant’s affidavit in the application for
leave to appeal
pertained solely to the overall length of the period of imprisonment
he would have to serve, when the matter was
called before the
magistrate on 19 March 2015 his counsel motivated that leave
should be granted to appeal the sentence on
a completely new ground,
which was not foreshadowed or set out in the supporting affidavit, or
the application itself, at all.
In this regard, counsel
submitted to the court that the appellant had been incorrectly
sentenced to 25 years imprisonment on each
of the robbery charges, on
the basis that he was a third offender, when this was not the case,
if one had regard for the ‘facts’
and the ‘dates’
in question. Faced with these submissions, the magistrate said
he felt he had no option but to
grant leave to appeal against the
sentences.
[19] Once again, it is
disconcerting to note that no attempt was made by the magistrate to
properly consider and evaluate the application
which was before him,
in the light of the record, which was by this time available.
If he had proper regard therefor he would
have noted that the
appellant’s convictions in the matter before him had occurred
in 2002 and were in respect of offences
that had been committed in
1999. Given the appellant’s conviction in the High Court
in Durban in 2000 for offences
which had been committed in 1997 and
his convictions before the High Court in Cape Town in 2001 in respect
of offences which had
been committed in 1998, the appellant was
indeed liable, in my view, as a third offender, to the prescribed
minimum sentence of
25 years, when he appeared before the magistrate
in 2002 in respect of offences committed in March 1999. That
this is indeed
the case is also apparent from the fact that this
point was not taken or proceeded with by the appellant’s
counsel either
in the heads of argument which were filed, or in
argument before us.
[20] However,
notwithstanding that the appeal which is before us is only in respect
of sentence, the submissions contained in the
appellant’s heads
of argument are now directed at the merits of the convictions.
And once again a new ground of appeal
is raised that was not included
in the application for leave to appeal. In this regard, appellant’s
counsel points out that
inasmuch as the appellant was sentenced on
4 August 2000 to a term of 30 years imprisonment, and on
22 February 2001
to a further term of 40 years imprisonment
which was to run concurrently with the previous sentence imposed, the
appellant had
clearly been in custody from at least 4 August
2000 until his conviction and sentence in this matter on 20 December
2002.
Consequently, it was submitted that insofar as the
convictions on counts 2 and 3 were concerned ie the robbery and
kidnapping of
Van Wyk, which were alleged in the charge-sheet to have
taken place on 3 March 2002, these could not ‘stand’ as
the
appellant was in prison at the time of the alleged commission of
these offences, as a sentenced prisoner.
[21] In order to
circumvent the difficulty which faced the appellant in regard to the
fact that there was no appeal before us in
respect of the
convictions, the appellant resorted to invoking the review provisions
of
s 304(4)
of the Act, which provide that where it is brought
to the attention of any provincial or local division that proceedings
in which
a sentence was imposed were not in accordance with justice,
the court shall have the same powers in respect thereof as if the
record
had been laid before it for the purposes of so-called
automatic review, in terms of
s 303.
To my mind, what the
appellant seeks to do is impermissible and amounts to nothing more
than an attempt to appeal his convictions
via the back door. In this
regard, Hiemstra in
Criminal Procedure
(at p30 – 23),
points out that the provisions of the section are not intended to be
used as a “
back door for the shrewd, but an emergency exit
for the needy”
.
[22] In a number of
matters where an accused was in a position to afford legal assistance
to launch a proper appeal, but chose instead
to use the provisions of
the section to attempt a ‘back-door’ appeal, the courts
declined to assist
vide
S v Matsane an ‘n Ander
1978 (3) SA 821
(T) 823d-e;
S v Singh
2013 (2) SACR 372
(KZD)
at para [14]. In addition, in a number of reported cases courts
of appeal refused to make use of the provisions of
s 304(4)
to
set aside sentences (which were imposed in the Magistrate’s
Court), on the basis of incorrect information being before
the court
at the time, pertaining to the appellant’s previous
convictions. In this regard
vide R v Miller
1961 (4) SA
277
(C);
S v Smit
1967 (2) SA 235
(C); and
S v Mazibuko
1974 (2) SA 321
(T),
contra
S v Monchanyana
1968 (1) SA
56
(O).
[23] In my view, given
that the appellant was legally represented at the time of his trial
a
quo
, and given that the appellant freely and voluntarily made
certain admissions in terms of the provisions of
s 220
of the
Act whereby he admitted to each of the elements necessary in order to
sustain a conviction in respect of all three charges
which were
preferred against him, and given the fact that the appellant is only
before us in regard to sentence, the provisions
of
s 304(4)
cannot be used as a back-door appeal against the appellant’s
conviction on the merits. Nor, in my view, can they be used
to move
this court to act in terms of its special powers of review under the
section.
[24] However, even if we
are wrong in this regard, and even if we are at liberty to assist the
appellant notwithstanding the fact
that his attempt to rely on the
provisions in question has occurred some 13 years after his
convictions, and without even a cursory
explanation for his gross
dilatoriness, there is in our view no merit in the appellant’s
submissions, and in my view this
is not a matter where, in terms of
s
304(4)
we can exercise our powers of review in favour of the
appellant. I say this for the following reasons.
[25] It is apparent from
the evidence which was tendered by all 5 of the State witnesses,
which evidence was common cause, that
the events in question, at
least insofar as the robbery of the hotel is concerned, took place on
23 March 1999 and the appellant
was arrested some 2 days later
on 25 March 1999. From the time of his first appearance in this
matter before the magistrate
on 27 March 2001 and until he was
sentenced on 20 December 2002, the appellant was in custody.
One of his numerous
attendances before the magistrate was on 1 March
2002, at which time it was again recorded that the appellant was in
custody
as he was serving a sentence in another matter, and he was
remanded to 5 August 2002 for trial.
[26] It was thus indeed
inconceivable that the appellant could have robbed Van Wyk of his red
Alfa Romeo and that he could have
kidnapped him on 3 March 2002
(ie some 2 days after the postponement on 1 March 2002 when he
was remanded in custody
for trial to 5 August 2002), and the
date which was provided in the charge-sheet in respect of both these
charges (ie counts 2
and 3) was thus clearly wrong. But this
does not mean that the appellant did not commit these offences. Or
that he was not properly
convicted of having committed them.
[27] Had this date been
correct, it is inconceivable that the appellant, who was legally
represented at the time, would not immediately
have brought this to
the attention of his legal representative and the court, and it is
inconceivable that, had it not been possible
for the appellant to
have committed these offences because he was in custody at the time,
this would not have been revealed to
the court either at the outset
when the appellant tendered his plea explanation, or during the
trial, or at some time thereafter
on one of the various occasions
when the appellant made application for leave to appeal before the
magistrate. Instead, as
I have previously pointed out, in his
plea explanation in respect of the charges involving Van Wyk,
appellant alleged that he had
been arrested at a time when he was in
the process of buying the motor vehicle from Van Wyk and that is why
he had the vehicle’s
key in his possession. This was a
clear and distinct indication on the part of the appellant that he
was involved in the
charge relating to the vehicle but had an
innocent explanation therefor, and not an indication that the
appellant could never have
committed the offence in question because
he was in prison at the time. It may be pointed out that even the
date which was given
in the charge-sheet in respect of the first
charge ie the robbery at the hotel, was wrong, inasmuch as it was
alleged that this
took place on 23 February 1999 when it was
clear from the evidence of all five State witnesses, and indeed
common cause, that
this in fact occurred on 23 March 1999.
[28] It is not without
significance that Tsubentla referred to the appellant as having been
in possession of a red motor vehicle
at the time when she saw him
some two days before the robbery, and it is to be noted that during
her evidence she was presented
by the prosecutor with a photograph of
a red motor vehicle but was unable to positively confirm that it was
the vehicle in question
or that it was an Alfa Romeo, because she
said she was not
au fait
with the various makes and models of
motor vehicles. In the circumstances the red motor
vehicle she spoke of and in
respect of which she was shown a
photograph, was probably none other than the red Alfa Romeo which
featured in respect of count
2, and which the appellant took by force
from Van Wyk. And in due course, had the appellant not decided to
change his plea to one
of guilty, by making the necessary admissions,
the State would no doubt have tendered the evidence of Van Wyk in
regard to the
robbery of this vehicle, and his kidnapping. And given
the prosecutor’s comments in his address to the court on
sentence
(as referred to in paragraph [9] above), it seems that the
date in the charge-sheet in respect of these charges should possibly
have been 3 March
1999
, and not 3 March 2002, and what could
have happened is that the prosecutor at the time simply made an error
in regard to the year,
when filling out the
pro forma
charge-sheet.
[29] In this regard
counsel for the respondent indicated in heads of argument that the
state was in possession of an affidavit which
was submitted by the
erstwhile investigating officer, one Lieutenant-Colonel Brink of the
SAPS, which would clear up the error
in the dates, which affidavit,
in the event that the matter were to have proceeded to be heard as a
review, would, in due course,
have been presented to the Court.
[30] Be that as it may,
even if the robbery and the kidnapping occurred on some other date,
it would in my view still not avail
the appellant.
[31] In terms of the
provisions of
s 304(4)
, this court is only at liberty to interfere
and to exercise its statutory power of review if there was an
irregularity present
which resulted in a failure of justice in the
proceedings
a quo
. This means that there must have been a
material or gross irregularity which occurred therein (
S v Moodie
1961 (4) SA 752
(A) 758f; 759c). It is not necessary for the
proceedings to have been strictly according to the very letter of the
law, only that
they were substantially in accordance with justice
vide
S v Nteleki
2009 (2) SACR 323
(OPD). The essential
question which must be answered in this regard is whether the accused
received a fair trial.
[32] In this matter, the
only apparent irregularity which occurred was that the dates in the
charge-sheet were incorrect which resulted
in the statement in terms
of
s 220
also being incorrect in respect thereof, and the dates in
both the charge-sheet and the statement in terms of
s 220
should have
been amended before the appellant was convicted.
[33] Although
s 84
of the
Act stipulates that a charge-sheet shall set forth the particulars of
the offences with which an accused is charged, with
sufficient
particularity as to the time when, and the place where, such offences
are alleged to have occurred so as to inform the
accused of the
nature of the charge, if any such particulars are unknown to the
state it shall (in terms of
s 84(2))
be sufficient to state this in
the charge, and the absence of such particularity will thus not
render the charge defective, unless
the time when the offence was
committed is a material element of the offence (
vide
Du Toit
et al
Commentary on the
Criminal Procedure Act
at
14-16, and
s 92(1)
of the Act). In this instance, the dates when the
robbery and kidnapping in respect of Van Wyk occurred were not
material and essential
elements of the offences, and as a matter of
law it cannot be said that without such dates being established the
appellant could
not necessarily have been convicted of having
committed the offences in question (see
Moodie
at 758e-h).
Nor were such dates material to the defence that was pleaded by the
appellant in regard thereto. It would have
been otherwise in the
event that the appellant had pleaded an alibi, because then it would
obviously have been unfair to expect
him to run the gamut of a trial
on the basis of the offences having been committed on a certain day,
or days, and then for the
State to argue later that it didn’t
matter what the dates were, when the evidence showed otherwise (see
s
93
rtw
s 92(2)
in regard to the effect of incorrect dates in a
charge-sheet in respect of alibi defences). That would be an instance
of true prejudice,
to an accused. In this matter the defence raised
was that the appellant had an innocent explanation for the vehicle
being in his
possession and that he had not robbed the owner thereof,
and knew nothing of his alleged kidnapping. The date was
immaterial
to the appellant’s defence, and to his later
decision to make the necessary formal admissions.
[34] Even when the time of
commission is a material element of an offence, where this is stated
incorrectly in a charge-sheet such
a defect may be cured by way of
evidence (in terms of
s 88)
or formally rectified by the court (in
terms of
s 86(1)
of the Act). In addition, in terms of
s 86(1)
where
a charge is defective for want of an essential averment, or where
there appears to be any variance between an averment in
the charge
and the evidence which is adduced in support thereof, or where there
is “
any other error
” in a charge, it may be
amended by a court at any time before judgment, even where the
charge-sheet is so defective that
it fails to disclose an offence,
provided it does not prejudice an accused. Importantly,
s 86(4)
provides that where a charge which is defective in any one of the
meanings referred to, is not amended by a court, this shall
not
effect the validity of the proceedings thereunder.
[35] Lastly, I point out
that
s 92(2)
provides that a charge shall not be held to be defective
because the offence pertaining thereto is stated to have been
committed
on a day “
subsequent to the laying of the
complaint, or the service of the charge, or on an impossible day, or
on a day that never happened
”. Whilst it was not
possible for the appellant to have robbed and kidnapped Van Wyk on 3
March 2002, on the evidence
before us it was certainly possible for
him to have done so in March 1999.
[36] In my view, the
irregularity, such as it was, in respect of the incorrect dates in
the charge-sheet thus did not render the
proceedings unfair and does
not vitiate the convictions, and given the undisputed evidence which
was tendered and the appellant’s
admissions which were freely
and voluntarily made in terms of
s 220
, there can be no question that
the appellant’s trial was substantially in accordance with
justice.
[37] In the
circumstances, for the reasons set out above there is in my view no
merit in the appeal and I would accordingly dismiss
it, and confirm
the convictions and the sentences that were imposed.
SHER AJ
I agree, and
it is so ordered.
YEKISO
J