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[2021] ZAWCHC 111
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S v Jacobs (E830/20; 192/21; 1/21) [2021] ZAWCHC 111; 2021 (2) SACR 644 (WCC) (31 March 2021)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
High Court Ref
No: 192/21
Case No: E830/20
Magistrate’s
Serial No: 1/21
[REPORTABLE]
In
the matter of:
THE
STATE
and
ZENOBIA
JACOBS
Coram
:
Kusevitsky J & Myburgh AJ
Delivered:
31
March 2021
REVIEW JUDGMENT
Kusevitsky
J (Myburgh AJ concurring):
[1]
This case comes before us
on automatic review. The accused was charged with theft of 1 x
Infacare baby milk and 1 item of ladies
clothing from the Checkers
Hyper, Parow Centre. The crime was alleged to have been committed on
16 July 2020 and the accused was
arrested that same day. The matter
was placed on the court roll on 20 October 2020 for the first
appearance. The accused was absent
and a warrant of arrest was
summarily issued. The accused appeared on the following date, being 5
November 2020 on the warrant
of arrest. On the same day, the accused,
representing herself, pleaded guilty. After addressing the court in
mitigation of sentence,
the matter was postponed for pre-sentence
reports. The accused was remanded in custody without bail.
[2]
The accused has a long
list of previous convictions. During 2009, she was arrested for being
in possession of drugs and fined R
600 or 30 days imprisonment.
Thereafter, she was charged and sentenced for theft on no less than
eight occasions from 2012
to 2019. She was either fined or received
wholly suspended sentences. In respect of the last offence in 2019,
she received a caution
and was discharged.
[3]
In her
ex
parte
statement on
mitigation of sentence, and upon the questioning by the Court in
respect of her long list of previous convictions
for theft, she
testified that she was 32 years old, and a single mother of 4
children. The father of her children had been
a gangster and
was killed. Her children are 13, 9, 7 and 3 years old respectively.
She lived in a Wendy-house with her children
until it burned
down and all of her children’s documentation were destroyed.
She and her children now live with her
mother who is
wheelchair-bound.
[4]
She stated that sometimes
she would get assistance from family members, but it was not a lot.
She admitted that if there was nothing
in the house, or if her child
needed something, then she would just go to the shop and steal it.
She says that she would be caught
every time, but if the children
needed something again, then she just go and steal again. When asked
if she had a problem that
she kept committing this offence, she
replied; “
I do
not
know.
It is just if I need something, I just do not know if I have a
stealing problem or something. But if I need something then
I just go
to the shop and I take it and then I get caught every time, but every
time I try –I try
.”
She stated that she did not have a drug problem – at least not
anymore since she was caught. She said that she left
the drugs with
her second child and then went to rehab. This was between 2011 and
2012.
[5]
The court requested a
correctional supervision and probation officers report. Due to the
Covid-19 pandemic, the accused, who was
still in custody, was not in
court when the matter next served before the magistrate on 10
December 2020. All of the inmates had
been requested to return to
prison due to a Covid-19 outbreak in the police cells. At that time
the correctional report was in
any event not yet to hand and the
matter was postponed to 21 January 2021. The matter was again
postponed to the dates of 9 February
2021, 23 March 2021 and 19 April
2021 for the said reports to be furnished. The magistrate indicated
that the latter date would
be the final postponement for the
pre-sentencing reports. Curiously, on the 23 March 2020, a letter
written by the probation officer
remarkably indicated that their
office had only received a request for a pre-trial report some 2
weeks earlier, that would have
been at the beginning of March 2021,
despite the State having ostensibly requested same in November 2020.
Be that as it may, as
a result of the short notice, the probation
officer stated that the report would not be available on the
requested date of 23 March
2021.
[6]
On 19 April 2021, the
pre-sentencing reports were ready, however the docket was not before
court. The court issued a subpoena for
the investigation officers to
appear in court on 23 April 2021 and for the finalization of the
matter. On 23 April 2021, the docket
was still not before court. The
matter was yet again postponed to 4 May 2021. By this time, the
accused had been in custody awaiting
sentencing for a period of some
six months.
[7]
On 4 May 2021, the
pre-sentence was submitted to court. It reflected that the accused
came from a relatively stable home . Her parents
divorced when she
was 8 years old; her mother worked as a nurse and worked long hours;
her mother remarried when she was 16 years
old and her step-father
had a good relationship with the children. The accused was an average
learner and passed all of her grades.
When she started High School,
the accused began associating herself with a negative peer group and
soon started using drugs. She
eventually lost interest in school and
left whilst still in grade 9. Thereafter she worked at Hungry Lion, a
local fastfood restaurant
for 3 years until she fell pregnant . She
also worked at a clothing store for a period of 4 years, however it
was reported that
she left this job due to her drug addiction.
[8]
In her early twenties, she
started using crystal meth. She said that she never received drug
treatment but claimed to have stopped
during 2015. The report
commented that the accused has been struggling with drug addiction
for years. According to the accused,
she shoplifts in order to
support her children, but according to family members, her drug
addiction is the cause of these criminal
activities. The report
stated that there was no evidence that the accused had stopped using
illicit substances; that she
commits acts of theft to sustain her
dependency of illicit substances and that as a result of substance
addiction and her destructive
lifestyle, she has relinquished her
parental responsibility to the detriment of her children who are
meant to be dependant on her
for their livelihood. Being a prolific
shoplifter is an indicator of her being a drug user.
[9]
In weighing up the
sentencing options, the probation Officer indicated that a sentence
of direct imprisonment would not address
the root cause of the
accused offending behaviour. Furthermore, in assessing correctional
supervision, the probation officer was
of the opinion that a sentence
that reflected a punitive measure, together with correctional
supervision which would act as a rehabilitative
element would be
deemed suitable, but was also not recommended as it would not
holistically address the accused’s addiction
to illicit
substances. Instead, she was of the view that, since the accused was
subjected to different sentencing measures, this
did not have the
desired effect. I may also point out that it most certainly did not
have a deterring effect, which is another
indicator of the substance
addiction. The probation officer was of the view that it would be in
the best interest of the accused
as well as her family and community,
that the accused undergo in-patient drug treatment. Her
recommendation was thus the following:
“
For the
accused, Ms Zenobia Jacobs, to be admitted to a drug treatment centre
in terms of section 296 of the Criminal procedure
Act, (Act 51 of
1977), read with the provisions of the Prevention and Treatment for
Substance Act, 2008 (Act 70 of 2008). Pending
admission to a drug
treatment centre for the accused to remain in custody at Pollsmoor
prison
.”
[10]
Whilst handing down
sentence the magistrate indicated that the court was aware of her
personal circumstances but that it also had
to take into
consideration the fact that the accused was not a first time
offender. It stated that of the nine previous convictions,
the
accused had been sentenced to suspended sentences or fines. The
accused was never given correctional supervision or direct
imprisonment.
[11]
The court also
acknowledged that the accused had been awaiting trial for five
months
[1]
,
given that on her very first appearance, she was released on warning
and warned to appear on the 20
th
October 2020. She failed to appear which resulted in the subsequent
issuing of the warrant of arrest and her remittance to custody.
Although she indicated that the accused had been in custody for
‘
long’
,
it does not appear that she evaluated this factor in her
consideration of the sentence which she imposed, especially given the
fact that she had pleaded guilty very soon after her arrest; had no
legal representation; and the delays were not of her making
but
seemingly due to the tardiness of the administrative court process.
[12]
The court then went on to
deal with the seriousness of the offence. She indicated the economic
loss suffered by business as a result
of theft and stated that if
offenders kept on stealing from shops, that employees lose their
employment due to
selfish
people. She stated that the accused had been offered a lot of
opportunities to mend her ways, but “
here
she is before this Court’
.
Not once did the court specifically deal with the accused’s
personal circumstances and alarmingly, seemed to have totally
ignored
or simply disregarded the probation officers report in respect of the
accused’s drug addiction despite saying that
she had. What the
court simply did was to read out the recommendation of the probation
officer’s report and added that because
the recommendation did
not indicate a drug treatment centre for the accused to receive
treatment, that she could not simply sentence
the accused
indefinitely until a treatment facility became available.
[13]
The accused was thereafter
sentenced to six months’ imprisonment. Thereafter the state
requested a further remand for 14 days
in order to obtain the J14,
which would initiate the process of putting the previous suspended
sentences, wholly into operation.
This means that the sentences
imposed on 8 August 2019, where a sentence of 10 months
imprisonment
[2]
was imposed; 90 days imposed on 15 May 2019
[3]
;
30 days imposed on 30 April 2018
[4]
;
4 months imposed on 17 May 2017
[5]
would all be resuscitated and would have to be served out. In effect,
the consequences of the sentence means that 18 more months
would be
added to the 6 months direct imprisonment imposed on the accused
(over an above the 6 months awaiting sentencing). This
means that,
inclusive of her time spent in custody ,that she would have to serve
an effective 30 month sentence, or 2 ½
year sentence for the
current offense.
[14]
If one has regard to this,
then it is abundantly clear that the sentencing court did not apply
its mind to the effect of the sentence
that it imposed, which had the
result of effectively increasing the accused’s incarceration.
It is trite that a review court
has an obligation to ensure, that
where an accused pleads guilty in a lower court, to ensure that the
proceedings so conducted
are in accordance with justice. I am of the
view that there were at least two mis-directions in this matter. This
first pertains
to the harshness of the sentence and the court a
quo’s
disregard for the six months that the accused had already spent
awaiting her sentencing and the disregard of the probation officer’s
report as to the root of the offences committed and secondly, the
failure to engage the necessary legislative framework designed
to
deal with sentenced persons in the position of the accused.
[15]
With regard to the
harshness of the sentence, I refer to a review judgment penned by
Rogers J (and in which I concurred). In
S
v Neethling
[6]
,
an accused was charged with theft of clothing from a motor vehicle on
11 December 2019. He was arrested on the same day. He had
a long list
of previous convictions. He told the magistrate that he stole because
of drugs and truthfully declared that he would
by lying if he told
the court that he would not re-offend. The court requested a
correctional supervision report but 8 months later,
the report was
still outstanding. The accused, acting in person, demanded that his
case be finalised. The magistrate obliged, sentencing
him to three
years imprisonment.
[16]
Rogers J reiterated that
our courts have often emphasised that there is a limit to the
aggravating effect of previous convictions.
The punishment must still
be proportionate to the offence. The accused was convicted of
stealing two items of apparel from
an unlocked motor vehicle. The
value of these items were not established, but concluded that
second-hand clothing generally has
a modest value. The items were
recovered. He stated that this was close to being a case of petty
theft, similar to someone caught
shortly after exiting a shop with
pilfered items of modest value, which is what we have in
casu
.
[17]
No correctional
supervision report was forthcoming and the accused in that matter
insisted that his case be finalised. He had already
been in custody
for eight months. When the accused said on 30 July 2020 that he
wanted his case finalised, it did not appear that
the magistrate
sought to elicit further information from him about the nature and
extent of his drug use and the steps if any which
he had taken
towards rehabilitation. The magistrate had plainly been concerned
that the accused was resorting to a life of crime
because of a drug
habit.
[18]
The court held that even
if the accused had not already spent eight months in custody, the
sentence of three years’ imprisonment
was inappropriately
harsh. It induced a sense of shock and what exacerbated one’s
sense of injustice was the that this sentence
was imposed on someone
who had already spent eight months in custody awaiting trial and
sentencing. It did not seem that this was
taken into account, unless
the magistrate thought that, but for the time spent in custody, the
crime would have warranted a sentence
of nearly four years or more.
[19]
In
casu
,
the value of the stolen items is R504.98. R 205.00 of that amount was
for baby milk formula. Taking into account all of the evidence
before
the sentencing court, it should have sentenced the accused to 6
months direct imprisonment, but ante-dated it to when she
pleaded
guilty. The lower court should also have addressed the impact that
the order of direct imprisonment imposed would have
on the
resurrection of the suspended sentences and the cumulative effect of
the sentence imposed.
[20]
On this basis alone, I am
of the view that the proceedings were not in accordance with justice
and that the sentence imposed should
be set aside.
[21]
Secondly, the lower court
also did not appreciate the powers that it has with regard to an
accused sentenced person to whom it has
been recommended they attend
a treatment facility, in
lieu
of prison. The court also, in my view, merely paid lip service to the
recommendation of the probation officer’s report, stating
that
it was unable to let the accused serve an indeterminate sentence
without knowing what treatment facility to send her to. This
approach
was simply incorrect in law.
[22]
In the matter of
S
v Van der Merwe
[7]
,
I dealt with the ways in which the legislature dealt with the
committal of persons to a treatment centre. In that matter,
the
magistrate had postponed the sentence of an accused who had pleaded
guilty for theft in terms of section 112 (2) of the Criminal
Procedure, in order for him to submit himself to treatment at the
in-patient drug rehabilitation program at de Novo rehabilitation
centre.
[23]
Persons can enter a
registered rehabilitation centre either as a voluntary service user
in terms of section 32 of the Prevention
and Treatment of Substance
Abuse Act, 70 of 2008 (‘Substance Abuse Act”) , or an
involuntary service user under section
35 of the Substance Abuse Act.
An admission to a public treatment centre by either a voluntary or
involuntary service user can
only occur in terms of this Act.
[8]
[24]
Section 36 of the
Substance Abuse Act deals with the committal of a person to a
treatment centre after they have been convicted.
It provides as
follows:
“
A
court convicting a person of any offence may in addition or
in
lieu
of any sentence in respect of such offence order that such person be
committed to a treatment centre if the court is satisfied
that such
person is a person contemplated in section 33(1) and such order, for
the purposes of this Act, must be regarded as having
been made in
terms of section 35”.
[25]
Section 33(1) of the
Substance Abuse Act deals with the admission of the involuntary
service user to a treatment centre and thereafter
lists the
requirements of such an admission. It provides the following:
Admission of involuntary service user to treatment
centre
33.
(1)
An involuntary service user, except those referred to in sections 36
and 40, 10 may not be provided with treatment, rehabilitation
and
skills development at a treatment centre
unless
a sworn statement is submitted to a public prosecutor by a social
worker,
community
leader or person closely associated with such a person, alleging that
the involuntary service user is within the area
of jurisdiction of
the magistrate’s court to which such prosecutor is attached and
is a person who is
dependent on substances
and—
(a)
is a danger
to himself or herself or to the immediate environment or causes a
major public health risk;
(b)
in any other
manner does harm to his or her own welfare or the welfare of his or
her family and others; or
(c)
commits a
criminal act to sustain his or her dependence on substances
.
(“Own emphasis”)
[26]
In
casu
,
the sentencing court had at its disposal, a probation officers report
which indicated that the accused committed criminal acts
to sustain
her dependence on substances, i.e. the report satisfied the
requirement in terms of section 33 (1)(c); and that after
having
satisfied itself that the accused was in fact such a person as
contemplated, was obliged to impose the provisions of section
36(1)
of the Substance Abuse Act. In such an instance, an enquiry in terms
of section 35 (1) is not necessary.
[27]
But this was not the only
option available to the lower court. If the court did not feel
comfortable granting the order in terms
of section of 33(1), it also
had the option of instituting an enquiry in term of section 35 of the
Substance Abuse Act. Section
35 deals with committal of persons to a
treatment centre after an enquiry is held by a magistrate. This
enquiry is to satisfy itself
that the accused is in fact such a
person as contemplated in section 33(1). Here witnesses may be
called, or evidence presented
to show cause why an order must not be
made in terms of subsection (7). The contents of any report submitted
in terms of subsection
(5), must be made available to the accused and
they have the opportunity of either refuting the allegations of the
report, or abiding
thereby. Once a court is satisfied that after the
enquiry, on consideration of the evidence and of any report submitted
in terms
of subsection (5), that the person concerned is a person
contemplated in section 33(1)
[9]
;
that such person requires and is likely to benefit from treatment and
skills development provided in a treatment centre
[10]
;
or it would be in such a person’s interest or in the
interest of his or her dependants, if any or in the interest
of the
community that he or she be admitted to a treatment centre
[11]
;
that the magistrate may order that the person concerned be admitted
to a treatment centre designated by the Director– General
for a
period not exceeding 12 months.
[28]
A magistrate who makes an
order in terms of subsection (7) that a person be admitted to a
treatment centre, may in addition, order
that such a person be
admitted in custody as provided for in section 36, or released on
bail or warning until such time as effect
can be given to the order
of the court.
[12]
In other words, until a probation officer or the Director General has
specified exactly which treatment facility is able to accommodate
the
accused.
[29]
The magistrate in
casu
,
failed to declare and commit the accused as an involuntary service
user despite all of the evidence indicating that the accused
was
indeed such a person as contemplated in section 33(1), or
alternatively
should have conducted an enquiry in terms of section 33 (5) to
ascertain whether the accused was in fact such a person as
contemplated
– and ordered that she be admitted to a treatment
centre.
[30]
A magistrate may also, in
lieu
of sentence, or in addition to any sentence, refer a person to a
rehabilitation centre by applying section 296 of the Criminal
Procedure Act. The provides as follows:
296
Committal to treatment centre
“
(1)
A court convicting any person of any offence may, in addition to or
in lieu of any sentence in respect of such offence, order
that the
person be detained at a treatment centre established under the
Prevention and Treatment of Drug Dependency Act, 1992,
if the court
is satisfied from the evidence or from any other information placed
before it, which shall in either of the said cases
include the report
of a probation officer, that such person is a person as is described
in section 21(1) of the said Act, and such
order shall for the
purposes of the said Act be deemed to have been made under section 22
thereof: Provided that such order shall
not be made in addition to
any sentence of imprisonment (whether direct or as an alternative to
a fine) unless the operation of
the whole of such sentence is
suspended.
(2)
(a) Where a court has referred a person to a treatment centre under
subsection (1) and such person is later found not to be
fit for
treatment in such treatment centre, such person may be dealt
with mutatis mutandis in accordance with the provisions
of
section 276A (4).
(b)
For the purposes of the provisions of paragraph (a) the expression ‘a
probation officer or the Commissioner’ in
section 276A (4)
shall be construed as the person at the head of the treatment centre
or a person authorized by him.”
[31]
If the magistrate did not
want to make use of section 296 of the Criminal Procedure Act,
another alternative sentence which allowed
for rehabilitation
treatment is under section 276 (1)(e) of the Criminal Procedure Act
which provides the following:
“
276.
Nature of punishments
(1)
Subject to the provisions of this Act and any other law and of the
common law, the following sentences may be passed upon a
person
convicted of an offence, namely—
(a)
...
[S
276(1)(a) rep by s 34 of Act 105 of 1997.]
(b)
…
.
(c)
…;
(d)
;
(e)
committal to any institution established by law;”
[32]
Thus, there would also
have been a mechanism in which the magistrate could have ordered that
the accused submit herself for committal
in terms of section 276
(1)(e) to a rehabilitation centre, as designated by the probation
officer and surrender herself on a date
and place as directed.
[33]
It could also have
postponed the sentence in terms of section 297 of Act 51 of 1977 and
postponed the sentence for a period of three
years, subject to the
committal to a treatment and rehabilitation centre. Section 297 deals
with the conditional or unconditional
postponement or suspension of
sentence, and caution or reprimand. Subsection (1)(a)(i)(ff) provides
that where a court convicts
a person of any offense, other than an
offence in respect of which any law prescribes a minimum sentence,
the court may in its
discretion postpone for a period not exceeding
five years the passing of sentence and release the person concerned,
on one or more
conditions, whether as to the compulsory attendance or
residence at some specified centre for a specified purpose.
[34]
Given all of the options
available to the magistrate and evidence to suggest that the accused
is in need of committal to a treatment
centre, I am of the view that
the court should have availed itself to the various options that it
had at its disposal, and not
have summarily dismissed the evidence as
irrelevant considerations. The legislature purposefully intended to
include these provisions
to deal with vulnerable and compromised
accused persons in situations such as these and courts would be
failing in its duty by
not utilising these provisions for the benefit
of the accused, and ultimately society as a whole. Furthermore,
utilizing these
provisions would also ultimately impact on the case
load of a lower court, by reducing the number of cases where repeat
offenders
appear before court for petty offenses which are motivated
by substance use. Thus even though the necessary interrogation was
done
in
casu
,
it was not followed through and as a result, I am of the view that
the proceedings were not in accordance with justice and that
the
sentence imposed should be set aside.
[35]
Having regard to the
nominal value of the items, I am of the view that a sentence of three
months imprisonment would have been appropriate,
and antedated to the
date of her incarceration. I would also have suspended the sentence
and ordered her committal for treatment
at a treatment facility as
directed by the Director General or probation officer.
[36]
I thus make the following
order:
The
conviction is confirmed but the sentence is set aside and replaced
with the following:
ORDER
1.
The sentence imposed is
set aside.
2.
The accused is sentenced
to 3 months imprisonment ante – dated to the date of the
incarceration, i.e 5 November 2020.
3.
The accused is declared to
be a person contemplated in section 33 (1) of the Prevention of and
Treatment for Substance Abuse Act,
70 of 2008, therefore in terms of
section 36(1) of the said Act, it is ordered that the accused is
committed to a treatment centre
designated by the Director-General to
receive the necessary treatment, rehabilitation and skills
development for a period not exceeding
12 months calculated from date
of admission.
4.
The accused is to submit
herself to treatment and rehabilitation designated by the director –
general as indicated in 5 below.
5.
The accused surrenders
herself on the date, time and at the place directed by the Probation
Officer as provided for in 4 above.
Kusevitsky J
Myburgh
AJ
[1]
At the time
of sentencing
[2]
wholly
suspended for 5 years on condition that she not be found guilty of
theft…
[3]
wholly
suspended
for 3 years
[4]
suspended for
a period of 4 years
[5]
suspended for
5 years
[6]
Review No.
351/20 18 August 2020
[7]
Review
Judgment 63/2017
[8]
S v
Van
Der Merwe, Review judgment WCHC 63/2017 at para 6
[9]
section 35
(7)(a)
[10]
section 35
(7)(b)
[11]
section 35
(7)(c)
[12]
section 35(8)