About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2016
>>
[2016] ZASCA 64
|
|
Radzilane v S (127/15) [2016] ZASCA 64 (16 May 2016)
Links to summary
SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
Number: 127/15
DATE:
16 MAY 2016
Not
Reportable
In
the matter between:
LUFUNO
RADZILANE
....................................................................................................
APPLICANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Neutral
citation: Radzilane v S (127/15)
[2016] ZASCA 64
(16 May 2016)
Coram:
Lewis and Zondi JJA and Baartman AJA
Heard:
3 May 2016
Delivered:16
May 2016
Summary:
Criminal Procedure –
sections 297(7)
and (9) of the
Criminal
Procedure Act 51 of 1977
do not provide a mechanism to impose a new
sentence pursuant to an application to enforce a suspended sentence –
court a
quo correct in finding that regional court exceeded its
powers – matter remitted to trial court to consider application
to
enforce suspended sentence.
Order
On
appeal from: Gauteng Division of the High Court, Pretoria (Zondo and
Ismail JJ sitting as court of appeal).
The
following order is made:
1
The application for special leave is granted.
2
The appeal is dismissed.
Judgment
Baartman
AJA (Lewis and Zondi JJA concurring):
[1]
This is an application for special leave to
appeal against the refusal by the court a quo of the applicant’s
application for
leave to appeal. This court referred the application
for oral argument in terms of
s 17(2)(
d
)
of the Superior Courts Act 10 of 2013 (the Act).
Background
[2]
The facts that gave rise to this
application are largely common cause. The applicant pleaded guilty to
one count of theft in the
regional court, Makhado. He admitted that
he had unlawfully and intentionally, while in the employ of ABSA
Bank, between 18 September
2008 and 9 October 2008, withdrawn
R560 000 from the accounts of various ABSA clients. The trial
court convicted the applicant
on the basis of his plea and sentenced
him, in terms of s 297 of the Criminal Procedure Act 51 of 1977
(the CPA), to seven
years’ imprisonment, wholly suspended for
five years on certain conditions including that he repay the
amount stolen
in instalments as directed in the court order.
[3]
The applicant made an initial payment of
R210 031.53, consisting of his pension due from ABSA Bank and
money held in his accounts
at the time of his arrest. He made a
further payment of R4 000, after which he paid no further
amounts. The respondent applied
to have the suspended sentence put
into operation. The trial court, motivated by the substantial
repayment he had already made
and his personal circumstances,
sentenced the applicant to three years’ imprisonment in terms
of s276(1)(
i
)
of the CPA (the new sentence). The applicant has served that sentence
in full.
[4]
The respondent appealed to the Gauteng
Division, Pretoria against the imposition of the new sentence. Zondo
and Ismail JJ upheld
the appeal and set aside the new sentence
and referred the matter back to the trial court to consider the
application to put the
suspended sentence into operation. On 20
September 2014, the court a quo refused the applicant’s
application for leave to
appeal its order. The present application is
against that order.
Special leave
[5]
It
is settled law that leave to appeal is only granted where there are
reasonable prospects of success. A mere possibility of success
is not
sufficient. In
Van
Wyk v S, Galela v S
,
[1]
this court emphasised the stringent requirements for granting special
leave as follows:
‘
An
applicant for special leave to appeal must show, in addition to the
ordinary requirement of reasonable prospects of success,
that there
are special circumstances which merit a further appeal. This may
arise when in the opinion of this court the appeal
raises a
substantial point of law, or where the matter is of very great
importance, or where the prospects of success are so strong
that the
refusal of leave to appeal would probably result in a manifest denial
of justice. . . .’
[6]
The applicant has served the new sentence,
irregularly imposed, and now faces the possibility of a further seven
years’ imprisonment.
The apparent unfairness is of concern to
both parties. In the circumstances of this matter, granting special
leave is warranted.
I deal with the grounds of appeal below to the
extent necessary.
Legal
representation
[7]
The applicant was unrepresented at the
appeal hearing; the court a quo had refused an application for
postponement to obtain legal
representation, reasoning that the
applicant had had sufficient time, approximately 10 months, to obtain
legal representation.
The court below further considered that the
matter had been ongoing since 2008 and ruled that in 2011, when it
heard the appeal,
it had been in the interests of justice that the
matter be finalised. I cannot fault that finding.
Appeal procedure
[8]
The applicant submitted that the court a
quo was not competent to have upheld the appeal; instead, so the
argument went, the respondent
should have brought a review
application. The court below dealt with the respondent’s appeal
as an appeal on a point of law:
whether it was competent for the
trial court to have imposed a new sentence pursuant to an application
to enforce a suspended sentence.
The court a quo held that it was not
‘competent for the [trial court] to have imposed a new sentence
…’.
[9]
The provisions of ss 297(7) and (9)
circumscribe the court’s power when the conditions of
suspension are not met
–
it may
enforce the suspended sentence or further suspend it, ‘…subject
to any existing condition or such further conditions
as could have
been imposed at the time of such postponement or suspension’.
(See E Du Toit et al
Commentary
on the
Criminal Procedure Act
–
vol
2 at 28-41). It follows that as a matter of
law, the trial court erred when it imposed the new sentence, making
the respondent
entitled to the order it obtained.
Just and
equitable
[10]
The applicant further contended that in the
circumstances of this matter, as the applicant has already served the
new sentence,
it would be just and equitable to impose a lesser
sentence. The CPA does not make provision for the trial court to
impose a lesser
sentence. However, the trial court will be at liberty
to consider the deplorable delay in bringing this matter to finality
and
how it has prejudiced the applicant. The trial court imposed the
new sentence on 24 March 2010 but the appeal was only heard in
September 2011. The reasons for the delay appear from the condonation
applications and it is not necessary to repeat them. Although
the
trial court found ‘no good or sufficient reason’ to
further suspend the suspended sentence, it found good grounds
to
impose a lesser sentence. The applicant has served the lesser
sentence. The applicant made it clear when the respondent applied
to
put the suspended sentence into operation that he is unable to make
any further payments to the complainant.
[11]
It follows that putting the suspended
sentence into operation will result in a harsher sentence than
originally imposed or intended
when the trial court imposed the new
sentence. These are factors the trial court will take into account in
deciding whether to
effect the suspended sentence or further suspend
it on the same or other appropriate conditions.
Conclusion
[12]
It is so that the applicant has already
served a period of imprisonment and that it would be patently unfair
if he were to serve
a further seven years’ imprisonment.
Although I am reluctant to make any suggestion that may appear to
fetter the trial court’s
discretion, as it seems clear that the
applicant is unable to further compensate the complainant, I consider
it appropriate to
express the view that the trial court should
consider further suspending the sentence for a period of five years,
on condition
that the applicant is not convicted of theft or any
crime entailing dishonesty during the period of suspension for which
he has
been sentenced to a period of imprisonment exceeding three
years without the option of a fine.
Order
1
The application for special leave is granted.
2
The appeal is dismissed.
E
D Baartman
Acting
Judge of Appeal
Appearances
For Appellant: H
L Alberts
Instructed
by:
Pretoria
Justice Centre, Pretoria
Bloemfontein
Justice Centre, Bloemfontein
For
Respondent: J J Kotzé
Instructed
by:
Director
of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
Van
Wyk v S, Galela v S
[2014] 152 ZASCA; 2015
(1) SACR 584 (SCA), para 21.