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[2020] ZAWCHC 89
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Van der Schyff v S (A2/20) [2020] ZAWCHC 89 (20 August 2020)
HIGH
COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
The
H
igh
Court Case No: A2/20
Lower
Court Case No: OSH11/18
DPP
Ref No:10/2/5/1/3-42/20
SHANE
VAN DER SCHYFF
APPELLANT
and
THE
STATE
RESPONDENT
Coram
:
Goliath DJP and Rogers J
Heard:
14
August 2020
Delivered:
20
August 2020
JUDGMENT
Rogers J (Goliath DJP
concurring):
[1]
The appellant was
convicted in the court
a
quo
on two counts of
assault with intent to cause grievous bodily harm and one count of
malicious damage to property. The magistrate
took the two counts of
assault together for purposes of sentence, and sentenced the
appellant to five years’ imprisonment
suspended for a period of
five years on appropriate conditions and to 24 months’
correctional supervision in terms of s 276(1)(
h
)
of the
Criminal Procedure Act 51 of 1977
. On the count of malicious
damage to property the magistrate sentenced the appellant to four
months’ imprisonment suspended
for five years on appropriate
conditions.
[2]
With the leave of the
court
a quo
the appellant appeals against his conviction on the second of the two
assaults and against sentence.
[3]
In order to explain the
decision to which I have come, it is necessary briefly to describe
the way the trial unfolded. The trial
got underway on 14 January 2019
when the evidence of the victim of the first alleged assault, Jestiny
Booysen, was heard. The victim
of the second alleged assault was his
cousin Ruad Booysen. Both victims were allegedly stabbed by the
appellant on the same
occasion, and Jestiny in his evidence described
the way that the appellant stabbed both of them. Jestiny’s
cross examination
by the appellant’s attorney foreshadowed a
defence of private defence (self defence).
[4]
After Jestiny’s
evidence was completed, the prosecutor was ready to call Ruad Booysen
as the State’s next witness. However,
since it appeared that
his evidence would not be completed on that day, it was decided
instead to postpone the case to 12 April
2019. On 12 April, and
following discussions between the prosecutor and the appellant’s
attorney, the appellant made admissions
in respect of the first
assault and the charge of malicious damage to property. These
admissions effectively amounted to an acknowledgment
of guilt on
those charges, the understanding being that the prosecutor would not
seek a conviction in respect of the second assault
– this
notwithstanding the fact that Ruad was present and available to
testify and that the prosecutor was in possession
of the J88 relating
to Ruad’s injury.
[5]
The admissions having been
made, the prosecutor closed the State’s case, the appellant
closed his case without adducing evidence,
and submissions on
conviction were made. The prosecutor stated that in the absence of
evidence presented by the victim of the second
alleged assault, the
State would not be asking for a conviction on that count. The
appellant’s attorney addressed the merits
of the first and
third counts and simply asked that his client be acquitted on the
second count.
[6]
The case was postponed for
judgment, which was delivered on 17 April 2019. The magistrate
convicted the appellant on all three counts.
Enquiries by the
respondent’s counsel in the present appeal, made at the court’s
request, have confirmed that both
the prosecutor and the defence
attorney were surprised when the magistrate convicted the appellant
on the second count.
[7]
In an affidavit
accompanying the appellant’s application for leave to appeal,
he stated that he had been told by his attorney
that the State ‘would
stay their prosecution on count two if formal admissions were made in
regard to counts one and three’.
He had been advised that if he
made the admissions in question, the State would close its case, that
he would not have to testify,
and that the State would seek
convictions on counts one and three only.
[8]
Although the above events
featured in the appellant’s application for leave to appeal,
the written submissions filed on his
behalf advanced the argument
that the State had not proved its case on the second count beyond
reasonable doubt, having regard
to the fact that Ruad Booysen did not
testify, that the J88 medical form in respect of his injuries was not
handed in, and that
the defence of private defence might reasonably
possibly have been true. The appellant’s counsel accepted
during oral argument
that there is no rule of law requiring the
victim of an assault to testify. Furthermore, in the absence of
evidence from the appellant,
there was nothing before the court
a
quo
to leave private
defence open as a reasonable possibility. Such a possibility was
wholly at odds with the only evidence before
the court, namely the
testimony of Jestiny Booysen, a witness who made a favourable
impression on the magistrate.
[9]
Accordingly, and subject
to questions of fairness, the judgment of the court
a
quo
on conviction
cannot be faulted. However, the circumstances I have summarised show
in my view that the appellant’s right
to a fair trial was
compromised. There appears to have been something in the nature of an
informal plea agreement, and the prosecutor
and the defence attorney
thereafter conducted themselves in accordance with that agreement.
[10]
I accept that the
magistrate was not told of the existence of an agreement and was not
in any event bound by the understanding reached
between the
prosecutor and the appellant’s attorney (cf
S
v Brown
[2015] 1 All
SA 452
(SCA) para 100), though the prosecutor would have been
entitled, subject to the requisite senior authorisation, to withdraw
the
prosecution on the second count (see
s 6(
b
)
of the
Criminal Procedure Act). However
, the magistrate was told by
the prosecutor that the State was not asking for a conviction on the
second count, and the prosecutor
made no submissions on the merits of
that count. Similarly, the appellant’s attorney made no
submissions on the merits of
the second count, simply asking for an
acquittal thereon. The magistrate knew that the case had been
postponed in order to hear
the evidence of Ruad Booysen. The
magistrate also knew that instead of the State leading such evidence,
the appellant made admissions
of guilt in respect of the first and
third counts, and that both sides then closed their cases.
[11]
In these circumstances,
fundamental fairness required, at the very least, that the magistrate
should have alerted the appellant’s
attorney to the fact that
he was contemplating the possibility of a conviction on the second
count, notwithstanding the prosecutor’s
stance and
notwithstanding the absence of evidence from the victim of the second
assault. Had this been done, the appellant’s
attorney might
well have told the court about the circumstances which led to the
making of the admissions and have contended that
the appellant made
those admissions and closed his case under a misapprehension. The
appellant would have had the option of applying
to reopen his case.
[12]
I thus consider that the
conviction on the second count should be set aside. Although a
remittal to the court
a
quo
would be possible
(to enable the appellant, if so advised, to apply to reopen his
case), I do not think that such a course would
be a proportionate use
of judicial resources, given that the presence or absence of a
conviction on the second count would have
only a modest effect on
sentence.
[13]
The magistrate took
the two assault charges together for purposes of sentence. Of the two
alleged assaults, the first was decidedly
more serious, the appellant
having stabbed Jestiny Booysen in the neck with a knife. Jestiny
described this as a wild slashing
by the appellant. The wound had to
be stitched in the emergency rooms of the hospital. According to
Jestiny, the wound was difficult
to stitch because it was ‘near
the veins’. The alleged assault on Ruad Booysen was a cut to
his ankle with the same
knife, inflicted while he was standing and
while the appellant was lying on the ground (Ruad had pulled the
appellant away from
his cousin). The difference in degree is
reflected in the fact that the charge in respect of Jestiny was one
of attempted murder
whereas the charge in respect of Ruad was from
the outset one of assault with intent to cause grievous bodily harm.
The court
a quo
was correct to find that the State failed to prove that the appellant
intended to kill Jestiny, but the appellant is fortunate
that the
neck wound was not fatal, since then he would have faced a charge of
culpable homicide.
[14]
I do not regard the
sentence imposed by the magistrate in respect of the two assaults to
be disproportionate as a sanction for the
first assault alone.
Nevertheless, we must accept that the conviction on the second
assault must have played some part in the court
a
quo
’s assessment
of an appropriate sentence. Since the whole of the period of
imprisonment was suspended, I see no reason to
interfere in that part
of the sentence. The appellant has now served about 13 months of the
24 months’ correctional supervision.
Justice will be done by
reducing this period to 18 months. There is no merit in the appeal
against the sentence on the third count.
[15]
I thus make the following
order:
(a) The conviction on the second
count is set aside.
(b) The sentence imposed by the
court
a quo
in respect of counts one and two stands as the
sentence in respect of count one, save that the period of
correctional supervision
imposed in terms of
s 276(1)(
h
)
is reduced from 24 months to 18 months.
______________________
Rogers
J
______________________
Goliath
DJP (concurring)
APPEARANCES
For
appellant
N
Abdurahman
Legal
Aid South Africa
60
St Georges Mall
Cape
Town
For
respondent
M
Blows
Office
of the Director of Public Prosecutions
Western
Cape