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[2018] ZAWCHC 27
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S v Horn (123/2016) [2018] ZAWCHC 27; 2018 (1) SACR 685 (WCC) (26 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
(Coram:
Wille, J
et
Andrews, AJ)
REPORTABLE
High
Court Ref No: 17274
Magistrate
serial no: 03/2017
Case
No: 123/2016
STATE
V
ARCHIBALD
HORN
REVIEW
JUDGMENT: 26 FEBRUARY 2018
ANDREWS,
AJ:
Introduction
[1]
This is a review in terms of
the provisions of Section 302 of the Criminal Procedure Act 51 of
1977 (“the Act”).
This matter was remitted to the
High Court in February 2017 in the ordinary course pursuant to the
court
a quo
imposing a reviewable sentence. It came before the Reviewing Judge
Van Staden AJ, who directed certain queries to the Presiding
Acting
Magistrate. In December 2017, I was seized with the matter and
directed further queries to the Acting Magistrate.
[2]
The accused in this matter
were arraigned in April 2014 in the Laingsburg Magistrate’s
Court on a charge of housebreaking
with intent to steal and theft.
According to the charge sheet, it is alleged that on or about 6 March
2016 and at or near Goldnerville
in the District of Laingsburg the
accused did unlawfully and intentionally and with intent to steal,
break open and enter the house
of Caliwyn van Rooyen and then and
there wrongfully and intentionally steal items (which were listed) to
the value of R1500.00
being the property or in the lawful possession
of Caliwyn van Rooyen.
[3]
Accused number 1, Archibald
Horn, who was legally represented by the Legal Aid Board, pleaded
guilty to the charge on 18 October
2016 in terms of section 112 (2)
and was subsequently found guilty. Accused number 2, Clinton Kruger
was discharged. The Acting
Magistrate then proceeded to impose a
sentence of “
R10
000.00 (Ten Thousand Rand) or 5 (five) years imprisonment wholly
suspended for (8) years”
[4]
I have identified numerous
irregularities in the record, which include:
(a)
that an incompetent sentence was imposed;
(b)
the “discharge” of accused
number two, when it was clear that the state withdrew the charges
against him;
(c)
the previous convictions of accused number
one were not properly admitted;
(d)
no
section 103
[1]
enquiry was held, and
(e) a referral to
the Department of Social Development after the sentence was already
handed down.
[5]
Pursuant to the enquiries sent
by Reviewing Judge Van Staden, the Acting Magistrate responded as
follows:
‘
B
QUALITY CONTROL
During the process of quality
control, it was brought under (sic) my attention that the sentence I
imposed was an incompetent one;
given that:-
4.
I had exceeded my jurisdiction, and
5.
that the sentence was incomplete
C REASONS
I fully concur with (sic) view
expressed above during the quality control process, and respectfully
request the Honourable Court
to correct and reduce the sentence which
should read as follows:
“
The
Accused is sentenced to a fine of R10 000 (Ten thousand rand); or 3
(three) years imprisonment which is wholly suspended for
3 (three)
years, on condition that the accused is not found guilty of the crime
of house breaking (sic) with intent to steal and
theft, which is
committed during the period of suspension”
’
[6]
The record reflected that
accused number one was unemployed. This raises a concern as the
sentence imposed would potentially defeat
the purpose of sentencing.
It was against this backdrop, that I directed additional queries to
the Presiding Officer wherein,
inter
alia
, clarity was
sought in relation to the considerations that were taken into account
in determining the sentence. Furthermore, in
deciding whether the
proceedings were in accordance with justice, other queries were
raised namely, the referral of the accused
to the Department of
Social Development after the sentence was pronounced; and also
whether the accused’s previous convictions
were admitted and
finally, the section 103 enquiry.
[7]
The query was attended to by
Magistrate CW Scott who responded as follows:
‘
A.
Introduction
1. I would like to inform the
Honourable Reviewing Judge that I was not the presiding Magistrate in
this case, but was tasked to
reply to the query. The Presiding
Magistrate in this case was Adv. F. Seria who acted on contract for 6
months.
2. During the last part of her
contract another Magistrate was send (sic) to assist and evaluate her
cases and on his instructions
some of her cases were send (sic) on
special review as they were not in accordance with justice. I was
sent from Cape Town to Laingsburg
to replace the acting Magistrate
whose contract was not extended.
3. In her
undated reasons for the special review (marked I) she recorded the
incorrect details of the case (Par ‘A’
Introduction).
This was then followed by the query of the Honourable Judge Van
Staden (marked II). The acting Magistrate’s
response thereto is
marked III and IV respectively. This was then followed by the current
query (marked V).
B. REPLY TO
CURRENT REVIEW QUERY:
Ad Para 1:
It is clear that the Magistrate did not apply
the law correctly. The sentence imposed was not only incomplete but
also incompetent.
The request by the Magistrate for such a huge fine
or 3 years imprisonment are also not a correct and just sentence. I
am in agreement
with the remarks by the Honourable Reviewing Judge.
Ad Para 2:
Previous convictions were proved
but not correctly signed and admitted.
Ad Para 3:
Section 103 of Act 60 of 2000 is
applicable- No explanation can be given why an enquiry was not held
except that it must have been
an oversight by the Magistrate.
Ad Para 4:
The Magistrate did not apply the
law correctly nor did she keep a proper record of the proceedings. It
should have read: ‘withdrawn
by Public Prosecutor’ and
not ‘discharged’.
Ad Para 5:
I
refer to the Magistrate’s letter (marked III) paragraph 2. It
should have been part of the sentence. (page 15 of the case
record)
C. CONCLUSION
The sentence
should be replaced with a sentence the Honourable Judge deem fit in
the circumstances.
I wish to
express my sincere apology to the Honourable Judge for the way in
which the Magistrate dealt with this case’
[8]
It is most peculiar that the sentencing
pro
forma
which the Acting Magistrate used also
encapsulated her sentencing judgment which reads as follows:
‘
Sentences must operate as
a deterrant (sic). In other words it must deter members of the
community from committing such acts. Society
must be vindicated and
individuals must not be tempted to act in such a manner again;
contrary the restorative justice system in
S v Maluleke 2008 (sic)
emphasised the need for reparation. Our system also seeks to make
sure that the punishment fits the crime.
It took the accused a total
of 6 months in this instance to come forward and tender a plea. This
court does not look @ the finality
of the Plea as something of a
mitigating circumstance it should have been done earlier. In
hindsight. The Accused has a history
of offences to which he
admitted, two of which are similar to the present offence. To which
he pleaded guilty. He accordingly proceed
to commit another crime
while still on the wrong side of the law. In the circumstance you
must be deterred from committing crimes
& Rehabilitated
Your sentence is as follows: - A
fine of R10 000.00 (Ten Thousand Rands); or 5 (Five) years
Imprisonment wholly suspended for
8 (eight) years; on condition
that no similar offences are committed. But I’ve gone a step
further. *Referral from. Report
to DSD = see if you are a candidate
for crime prevention program’
Legal
Principles
[9]
It
is trite that the institution of automatic review, which is unique to
South African criminal procedure, fulfils an important
function as it
aims to ensure validity and fairness of the convictions and sentence
in certain categories of lower-court proceedings.
[2]
It is also a developed principle in our law that a reviewing judge is
not limited to the investigation of irregularities but may
also
devote attention to all matters which are subject to appeal.
[3]
[10]
The
powers of the High Court to review proceedings of the Magistrate’s
court are set out in section 304(2) (c) of the Act.
[4]
These powers include:
‘…
(i)
confirm, alter or
quash the conviction, and in the event of the conviction being
quashed where the accused was convicted on one
of two or more
alternative charges, convict the accused on the other alternative
charge or on one or other of the alternative charges;
(ii)
confirm, reduce,
alter or set aside the sentence or any order of the magistrate’s
court;
(iii)
set aside or
correct the proceedings of the magistrate’s court;
(iv)
generally give
such judgment or impose such sentence or make such order as the
magistrate’s court ought to have given, impose
or made on any
matter which was before it at the trial of the case in question;
(v)
remit the case to
the magistrate’s court with instructions to deal with any
matter in such manner as the provincial or local
division may think
fit; and
(vi)
make any such
order in regard to the suspension of the execution of any sentence
against the person convicted or the admission of
such person to bail,
or, generally, in regard to any matter or thing connected with such
person or proceedings in regard to such
person as to the court seems
likely to promote the ends of justice.’
[11]
Section
92(1) of the Magistrates’ Court Act
[5]
sets out the jurisdictional limitations in relation to matters
of punishment which states that:
‘…
the court, whenever
it may punish a person for an offence –
(a)
by imprisonment, may impose a sentence of imprisonment
for a period not exceeding three years…
(b)
by fine, may
impose a fine not exceeding the amount determined by the Minister
from time
to
time by notice in the Gazette for the respective courts…’
[6]
[12]
It
is trite that courts cannot impose forms of punishment which do not
fall within their jurisdiction as ‘
a
court of law is still limited to its own prescribed jurisdiction’
.
[7]
An accused has the Constitutional right to a fair trial which
includes the benefit of the least severe of the prescribed
punishments.
[8]
Of course, the
objects of punishment and the trite legal principles akin to
sentencing proceedings remain a crucial consideration.
[9]
[13]
A
suspended sentence serves to deter offenders from committing similar
offences in future and have been regarded as a useful sentencing
option for a judicial officer in order to achieve the aims and
objectives of sentence. It is trite that when direct
imprisonment
is imposed which is coupled with a fine which is wholly
suspended for a period of time, it should afford an accused person a
realistic
opportunity to avoid incarceration.
[14]
It
is also a fundamental legal principle that ‘
[t]he
sentence for all offences may be suspended in whole or in part for a
period not exceeding 5 years, save where a law prescribes
a minimum
punishment …
’
[10]
Additionally, it is settled in our law that no sentence may be
suspended for a period longer than 5 years.
[11]
[15]
It
is also trite that every court shall be a court of record.
[12]
[16]
Turning
to the failure by the Presiding Magistrate to hold a Section 103
enquiry, it was stated in
S
v Mkhonza
[13]
that
‘…
A trial court that
has convicted an accused person of an offence falling under section
103(1) of the Act must be mindful of the
fact that in seeking to
ensure that unfitness to possess a firearm should automatically
follow on a conviction of certain serious
offences, the legislature
brought within the ambit of section 103(1) cases that may not be very
serious. The circumstances
of the particular offence may be
such that when regard is had to the personal circumstances of the
accused there is no justification
for disqualifying the accused from
the right to possess a firearm.
[22] In my view when the
legislature vested in the courts of this country the jurisdiction to
determine that the statutory unfitness
to possess a firearm imposed
under section 103(1) of the Act should not apply, it did not intend
the courts to adopt a supine approach
to these matters dependent
entirely upon whether the accused had the knowledge, means and
resources to place a proper case before
it that the disqualification
should not apply to them, and in all other cases for the
disqualification to apply as a matter of
rote. At the very
least it was the intention of the legislature that the court should
have regard to all relevant factors
concerning the offence, however
feeble and limited the case advanced by the accused, and to consider
the issue of whether it should
determine otherwise in the light of
all the facts. In other words there is an obligation on the
trial court to consider properly,
having regard to all relevant
factors, whether the case is one where the statutory disqualification
from possessing a firearm
should remain in place or whether it should
determine otherwise. In approaching that task the court should
have regard to
any factor that bears on the issue and if there is
reason to believe that all material facts bearing on that decision
are not before
it to cause those facts to be discovered and placed
before it. Without attempting to be comprehensive, I agree with the
court in
S v Phuroe en Agt Ander Soortgelyke Sake
[14]
that amongst the important issues that should be considered are:-
(a) the accused’s age and
personal circumstances;
(b)
the nature of any previous convictions or the absence thereof;
(c) the nature and seriousness of
the crime of which he has been found guilty and the connection that
the crime has with the use
of a firearm;
(d)
whether there is any background which suggests that the accused may
make use of his or her licensed firearm for the purpose
of committing
offences;
(e)
whether it is in the interests of the community that the accused be
declared unfit to possess a firearm because of the fact
that he or
she poses a potential danger to the community.
I would add to that list that
consideration should be given to the period during which the accused
has possessed a licensed firearm
and whether there is any indication
of previous irresponsibility in regard to that possession and use.’
Discussion
[17]
The Acting Magistrate
conceded that there were jurisdictional challenges in respect of the
sentence imposed. In this regard, the
Acting Magistrate suspended the
sentence for a period of eight (8) years when she was not permitted
to suspend the sentence in
whole or in part for a period not
exceeding 5 years. Additionally, the sentence was incomplete which
renders the sentence incompetent.
Although the sentence of
R10 000.00 (ten thousand rands) or three (3) years imprisonment
fall within the jurisdictional limits
of the Magistrates’ Court
for this offence, there are two glaring concerns namely, that
previous convictions were not proven
and the fact that the accused
was unemployed at the time of the commission of the offence.
[18]
Notwithstanding the
fact that sentencing falls within the discretion of the Presiding
Officer, this judicial discretion cannot be
exercised blindly without
taking into account the crucial sentencing factors and considerations
which judicial officers are enjoined
to consider.
[19]
It is furthermore
incumbent on the Presiding Officer to ensure that the aims of
punishment are achieved. Even though the accused
received a wholly
suspended sentence I am not persuaded that same affords the accused a
realistic opportunity to avoid incarceration,
unless it was the
intention of the Acting Magistrate that the accused serves a period
of three (3) years imprisonment. If that
were the case, then the
intention of the Acting Magistrate should not be disguised in a
manner which superficially appears to grant
an accused an opportunity
to circumvent imprisonment.
[20]
It has become evident
that the Acting Magistrate was an Advocate who was appointed for a
period of six (6) months on a contractual
basis. Additionally, the
Acting Magistrate should have called for a pre-sentence report from
the Department of Social Development
if the intention was to consider
a non-custodial sentence aimed at rehabilitating the accused.
Furthermore, the Acting Magistrate
should not have completed a
referral form after the sentence was handed down as she was then
functus officio
. It
needs to be borne in mind that inexperience holds its own challenges,
however, Judicial Officers perform a very important function
and hold
significant powers which could impact on the lives of the people who
are protected by our country’s constitution
and the law.
[21]
The
entry of a discharge in respect of accused number two, may have
insurmountable ramifications as it creates the impression that
the
accused was acquitted after evidence was led. It is trite that an
accused person has the constitutional right to be protected
against
double jeopardy.
[15]
In this
instance, the consequence of the endorsement of “discharge”
on the record means that he could never be charged
for the same
offence again. The intention by the state was to withdraw all charges
against accused number two. If the endorsement
on the charge sheet
was to remain, it would essentially have the consequence of the
accused never being able to be charged again
for the same offence. I
am therefore of the view that the Acting Magistrate’s failure
to keep a proper record, which she
was obliged to do, is an
irregularity and falls to be corrected.
[22]
In
light of the serious nature of the charge and subsequent sentence
imposed, it is clear that the deeming provisions of Section
103 (2)
of the Firearms Control Act
[16]
have relevance. It is evident from the record that not all relevant
factors were taken into consideration in relation to the prescribed
statutory disqualifications
.
The accused
has a right to present evidence as to why he should be disqualified
from possessing a firearm.
[17]
The
audi
alteram partem
rule applies
.
In the
circumstances, it would be prejudicial to the accused if an order to
this effect were to be made in the absence of a proper
enquiry.
Conclusion
[23]
I am not in agreement
with the proposed correction suggested by the Acting Magistrate. I am
of the view that a fine is not a suitable
sentence given that the
accused was unemployed at the time of the imposition of sentence.
I am of the view that a term of
imprisonment which is wholly
suspended would be appropriate and encompasses all the relevant aims
of punishment.
[24]
This, however, would
trigger the provisions of Section 103 (1) of Act 60 of 2000. It would
therefore be incumbent on me to ensure
that the accused is not
automatically declared unfit to possess a firearm in light of the
fact that the accused was not given an
opportunity to address the
court in this regard. In the circumstances, it would be appropriate
to specifically order that the accused
not be declared unfit to
possess a firearm.
[25]
I
am not persuaded that the accused’s previous convictions were
proved as the SAP 69 was not signed by the accused. Consequently,
his
previous convictions were not admitted. I am therefore of the view
that accused number one should be afforded the benefit of
the doubt
and be sentenced as a first offender. The charge to which the accused
pleaded, however, remains serious. I
am
mindful of what was stated by Thring J in
S
v Sonday and Another
[18]
that
'
[a] sentence which is shockingly or strikingly or disturbingly too
light is as much a miscarriage of justice as one which is shockingly
or strikingly or disturbingly too heavy'.
It is
therefore imperative for the court to strike a balance in the three
elements of the triad, blended with the element of mercy.
[26]
In considering the
conspectus of the evidence, I find that the trial court has exceeded
its jurisdiction by imposing an incompetent
sentence and as such, it
is a nullity. The proceedings, as far as the sentence is concerned,
are therefore not in accordance with
justice and fall to be set aside
and need to be corrected
.
I further find that the endorsement on the record in relation to
accused number two was irregular.
[27]
Magistrate CW Scott is
thanked for his assistance in relation to the review queries in the
absence of the Acting Magistrate.
[28]
In the result, I would
make the following order:
(a)
that the conviction of accused number one
is in accordance with justice and is confirmed.
(b)
that the sentence of accused number one imposed
on 18 October 2016 is set aside and replaced with:
“
Two
(2) years imprisonment which is wholly suspended for a period of
three (3) years on condition that the accused is not convicted
of the
offence of housebreaking with intent to steal or attempt thereto or
theft or attempt thereto to which the accused is not
given the option
of a fine, committed during the period of suspension”
(c)
that in terms of section 103 (1) of Act 60 of
2000, accused number one is not declared unfit to possess a firearm.
(d)
The narration in connection with accused number
two is amended to read:
“
All
charges against accused number two are withdrawn by the state.”
__________________________
ANDREWS,
AJ
(Acting
Judge of the High Court)
I agree, and it is so ordered.
__________________________
Wille, J
Judge of the High
Court
[1]
Firearms Control
Act
60 of 2000
.
[2]
Du Toit et al ‘
Commentary
on the
Criminal Procedure Act’
(Juta
)
[SERVICE 59, 2017] at 30-8.
[3]
Ibid
at
30-8
.
[4]
Ibid
at
30-16
“
Section
304
not only lays down the procedures to be followed in regard to
automatic review. It also establishes independent review
opportunities, together with its own procedure for submission,
besides the institution of automatic review. But whether the
case comes before a judge via the institution of automatic review or
whether it reaches him by way of the special review ground
and
procedures in
s 304(4)
, the reviewing court has the same power.
In addition,
s 304
makes provision for the review of proceedings
which until recently were dealt with by superior courts, pursuant to
their inherent
powers of review.”
See
also
Walhaus
and Others v Additional
Magistrate
Johannesburg and Another
1959 (3) SA 113
(A)
,
with regards to the High Court’s inherent powers of review.
[5]
Act 32 of 1944.
[6]
R120 000 where the court is not the court of a regional
division, and R600 000 where the court is the court of a
regional division – GN 217 of 27 March 2014 (
GG
37477 of 27 March 2014).
[7]
Supra
at
28-9.
[8]
Section 35 (3) (n) of Act 108 of 1996 ‘
Every
accused person has a right to a fair trial, which includes the
right- …(n) to the benefit of the least severe of
the
prescribed punishments if the prescribed punishment for the offence
has been changed between the time that the offence
was
committed and the time of the sentencing…’
[9]
Supra
at
28-10 ‘
A sentencing
court has the rather difficult task of considering to what extent
the above theories (objects, considerations)
should be
accommodated in deciding what sentence should be imposed on an
individual offender, having regard to the nature of
the offence, the
interests of society and the personal circumstances of the offender.
It is, ultimately, often a matter of reconciling
competing interests
in order to ensure a fair and just sentence. An appropriate balance
must be struck. And a sentencing court
“has a duty to impose
an appropriate sentence according to long-standing principles of
punishment and judicial discretion’
;
See also
S v Mhlongo
2016 (2) SACR 611
(SCA) at para 9.
[10]
Ibid
at 28-44.
[11]
S v Balfour
2009 (1) SACR 399
(SCA) at 11.
[12]
Section 4(1) of Act 32 of 1944.
[13]
(AR357/08) [2009]
ZAKZPHC 9;
2010 (1) SACR 602
(KZP) ;
[2009] 3 All SA 358
(KZP) (24
March 2009)
[14]
1991
(2) SACR 384
(NC) at
387
a-d
[15]
Section 35 (m) of Act 108 of 1996 ‘
Every
accused person has a right to a fair trial, which includes the right
- …(m) not to be tried for an offence in respect
of an act or
omission for which that person has previously been either acquitted
or convicted.’
[16]
Act 60 of 2000.
[17]
Section 35 (3) (i) of The Constitution of the Republic of South
Africa, 1996 ‘
(3)
Every accused person has the right to a fair trial, which includes
the right- …(i) to adduce and challenge evidence’
[18]
1994 (2)
SACR 810
(C) at 820d-e.