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[2016] ZASCA 124
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Khobane v S (887/2015) [2016] ZASCA 124 (26 September 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Non-reportable
Case
No: 887/2015
In the
matter between:
DONALD
KHOBANE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Khobane
v S
(887/15)
[2016] ZASCA
124
(26 September 2016)
Coram:
Shongwe, Willis,
Dambuza, Mathopo and Mocumie
JJA
Heard:
2 September 2016
Delivered:
26 September 2016
Summary:
Sentence – Criminal
Law Amendment Act 105 of 1997 (the Act) – Appellant sentenced
to 15 years’ imprisonment for
theft of R3 million from ATMs in
terms of the Act – Charge sheet made no mention of possibility
of sentence in terms of the
Act – Magistrate also failed inter
alia to warn the appellant at commencement of trial that if convicted
he faced the risk
of a sentence imposed in terms of the Act –
Criminal petitions procedure r
equiring
convoluted process
–
Appeal
against the high court’s dismissal of the petition against
regional court sentence upheld – Leave granted to
appeal
against sentence.
ORDER
On
appeal from
:
Gauteng Local
Division of the High Court, Johannesburg
(
Borchers
J and Karam AJ
sitting
as
a
court of
appeal
):
1.
The appeal is upheld.
2.
The order of the court below
refusing leave to appeal is set aside and replaced with the
following:
‘
Leave
to appeal to the Gauteng Local Division of the High Court,
Johannesburg is granted.’
JUDGMENT
Willis
JA (Shongwe, Dambuza, Mathopo and Mocumie JJA concurring):
[1]
This is an appeal, with the leave of this court, against the
dismissal
by
the Gauteng Local Division, Johannesburg
(
Borchers
J and Karam AJ) of an application for leave to appeal
against
a sentence of a regional court, Alexandra.
Background
[2]
The appellant, Mr Donald Khobane, had been employed by Nedbank as an
‘ATM consultant’. As such, his main job had
been to
balance and cash-replenish the nine automatic teller machines (ATMs)
which were assigned to him and were under his control,
located at
various places in Johannesburg.
[1]
For this purpose, he had keys and combination numbers for accessing
the ATMs. He absconded from work on 30 July 2009. After a few
days,
his supervisors became suspicious. An inspection revealed that there
were cash shortages at those ATMs which had been under
the
appellant’s control. The total missing cash was in excess of R3
million.
[3]
The appellant was arrested on 19 August 2009. He first appeared
before the Alexandra Regional Court on 21 August 2009 and was
subsequently granted bail. It appears from a confession which the
appellant made to a member of the South African Police Service,
Captain Shaun Henry Robson, on 21 August 2009 (which he later
disavowed and unsuccessfully challenged in a trial-within-a-trial)
that he could have come under the influence of some kind of
‘spiritual healer’, known as Professor Zao, who had told
the appellant that he had a ‘symbol of wealth’ in his
hands and that if the appellant lent him as much money as possible,
taken from the ATMs, the ‘professor’ would use it to
‘cleanse’ him and that the appellant could then return
the money and would never again have financial problems. The
appellant took vast amounts of money from the ATMs to Zao on two
occasions.
[4]
The appellant was arraigned before the Alexandra Regional Court on 24
August 2011 on a charge of stealing an amount in excess
of R3 million
from his employer, Nedbank, during the period between 30 July 2009
and 1 August 2009. He had the benefit of legal
representation during
his trial, having pleaded not guilty. He was convicted as charged by
the magistrate on 4 September 2012 and
on the same day sentenced to
15 years’ imprisonment. Inasmuch as the theft involved an
amount of more than R500 000, the
charge sheet did not indicate that
the sentence would be imposed in terms of the provisions of Part II
of Schedule 1 of the
Criminal Law Amendment Act 105 of 1997
[2]
– widely known as the ‘minimum sentence legislation’.
[5]
At the trial, the appellant’s supervisor, Mr Sebastian Bowles,
also known as his ‘field controller’, testified
that the
appellant was the only person who could have removed the money in the
manner that it had been. In this regard, Mr Bowles’
evidence
was corroborated by that of Mr Marcel Rhoda, who at the time was
employed at Nedbank as an ATM controller for the West
Gauteng region.
Concerning conviction, the evidence against the appellant was
overwhelming.
[6]
As already mentioned above (para 1), the charge sheet made no
reference to the possibility of the sentence being imposed in
terms
of the prescribed minimum sentences set out in the Act. Although
parts of the record relating to the initial appearances
before court,
the bail application and the various remands are missing, it does not
appear that the appellant had been warned by
the trial court that, if
convicted, he faced the risk of 15 years’ imprisonment.
[7]
The appellant had been 28 years of age at the time of the commission
of the offence. He was a first offender and was the father
of two
young children. In respect of sentence the magistrate found that
there were no substantial and compelling circumstances,
which would
justify a departure from the prescribed minimum sentence. He
mentioned the fact that the appellant had shown no remorse
and the
prevalence of theft involving ATMs, and the inconvenience it caused
to many other people, as potentially aggravating circumstances.
Immediately after the magistrate had sentenced the appellant, his
legal representative made an application for leave to appeal
against
conviction and sentence from the bar. The magistrate cautioned that
he thought it unwise in the circumstances, because
petitions so
brought were oftentimes not properly formulated and, accordingly,
failed to show reasonable prospects of success on
appeal. The
magistrate dismissed the application for leave to appeal
[8]
The appellant thereupon petitioned the Gauteng Local Division,
Johannesburg for leave to appeal against both conviction and
sentence. On 8 May 2014, that court (
Borchers
J and Karam AJ)
refused
the petition. The appellant thereupon requested leave to appeal
against that refusal. On this aspect too, leave was refused.
The
appellant thereafter petitioned this court. On 8 September 2015, this
court granted him leave to appeal to it against the refusal
of his
petition. In so doing it made the following order:
‘
Leave
to appeal is granted to the Supreme Court of Appeal against the
refusal of leave to appeal by two Judges of the Gauteng Local
Division of the High Court, Johannesburg against his sentence of 15
years’ imprisonment’.
The
Minimum Sentence Provisions
[9]
In its reasons for dismissing the appeal against its refusal of the
petition to it, the Gauteng Local Division referred to the
strong
case against the appellant in relation to the conviction. Insofar as
sentence was concerned, it referred to the fact that
the appellant
had abused his position of trust as an employee.
[10]
The high court also referred to the well-known dictum in
S
v Malgas
,
[3]
where this court said that the courts
are:
‘
to respect and not merely, pay
lip service to, the Legislature’s view that the prescribed
periods of imprisonment are to be
taken to be ordinarily
appropriate when crimes of the specified
kind are committed’
and the prescribed minimum sentence
is “the sentence that should
ordinarily
and in the absence of weighty justification be imposed for the listed
crimes in the specified circumstance” and that “unless
there are, and can be seen to be, truly convincing reasons for a
different response, the crimes in question are to elicit a severe,
standardised and consistent response from the Courts.’
[4]
[11]
Malgas
did
not dispense with the right of an accused person to be treated fairly
when it comes to sentence. The contrary is true.
[5]
The record shows that the entire question of the imposition of
minimum sentences was dealt with perfunctorily. This court has
repeatedly stressed the importance of warning a person of the risk of
minimum sentences being imposed.
[6]
[12]
By reason of the fact that there are other relevant considerations –
apart from whether the appellant was properly warned
about the risk
that he faced with regard to sentence – no useful purpose would
be served by incurring further delays in an
attempt to determine
whether he may perhaps have been so warned. It would also, in
the circumstances, be unfair to the appellant.
The question of the
appellant having been under the sinister influence of a ‘confidence
trickster’ was not explored.
The facts of the case are so
bizarre that they cry out for a full investigation before the
imposition of sentence. There was no
probation officer’s report
for the magistrate to consider.
[13]
It is indeed so that in
S v
Legoa
,
[7]
S v Ndlovu
[8]
and
S v Makatu
,
[9]
this court has been careful not to stipulate that the failure to warn
an accused person that faces a prescribed minimum sentence
will
necessarily result in an unfair trial. In
Legoa
,
Cameron JA said (para 7):
‘
A
general requirement to this effect, if applied with undue formalism,
may create intolerable complexities in the administration
of justice
and may be insufficiently heedful of the practical realities under
which charge-sheets are frequently drawn up.’
The
learned judge also stressed the need for a ‘vigilant
examination of the relevant circumstances’.
[10]
Under our constitutional dispensation the importance of an accused
person receiving a warning relating to the possible minimum
sentence
by reference to the relevant penalty clause in the charge sheet is
large.
[11]
The issue is inextricably linked to the right of every person to a
fair trial, which includes the right to be informed of
the
charge with sufficient particularity to enable answering it.
[12]
[14]
In
Makatu
,
Lewis JA accepted the need to adopt an approach that was ‘neither
absolute nor inflexible’.
[13]
In
S v Ndlovu; S v
Sibisi
,
[14]
which was cited with approval by this court in
S
v Mabuza & others
,
[15]
it was said that:
‘
[I]t
will not be essential to inform [the accused person] that he is
facing the possibility of a substantial prison sentence or
a sentence
which may be ‘materially prejudicial’ if he can
reasonably be expected already to be aware of this.’
[16]
A
crucial question, if the charge sheet omits a reference to the Act,
is whether the accused nevertheless had a fair trial if the
sentence
is determined in terms thereof. This was made clear in
S
v Ndlovu
(para 12):
[17]
‘
[w]here
the State intends relying upon the sentencing regime created by the
Act a fair trial will generally demand that its intention
pertinently
be brought to the attention of the accused at the outset of the
trial, if not in the charge sheet then in some other
form, so that
the accused is placed in a position to appreciate properly in good
time the charge that he faces as well as its possible
consequences’.
[15]
Although theft is a common law crime, the statutory minimum sentence
of 15 years’ imprisonment, where the amount involved
exceeds R
500 000, is severely at variance with the kind of sentencing for
theft with which most people would have been familiar,
prior to the
enactment of the legislation.
[16]
In the circumstances of this particular case, there is a strong
likelihood of an injustice in regard to the appellant’s
sentence if the question is not reconsidered. When accused persons
have the benefit of legal representation, the reluctance of
magistrates to ‘descend into the arena’, even when they
have the best interests of an accused person at heart, is quite
understandable. A few delicate immersions by the
magistrate into the waters of an accused person’s defence would
not be out of place in balancing the fair trial rights of the accused
against the proper prosecutions of crime. It would certainly
not have
been improper for the magistrate to have asked at the commencement of
the trial, whether the appellant knew that, if convicted,
he was at
risk for 15 years’ imprisonment.
[17]
In the light of the observations above, there clearly are more than
reasonable prospects that, on appeal, another court may
interfere
with the sentence. The appellant was sentenced on 4 September
2012. Leave by this court to appeal to it was
granted on 8
September 2015. The question has arisen as to whether leave by
this court was given in terms of the Superior
Courts Act 10 of 2013
(the
Superior Courts Act), which
came into operation on 23 August
2013 (ie after the conviction and sentence of the appellant) or its
predecessor, the Supreme Court
Act 59 of 1959 (the Supreme Court
Act).
Criminal
petition procedure
[18]
In
S v Khoasasa
,
[18]
this court held that a refusal of leave to appeal to two judges of a
high court is a ‘judgment or order’ or a ‘ruling’
as contemplated by s 20(1) and 21(1) of the now repealed Supreme
Court Act 59 of 1959.
[19]
This court
thus held that a petition for leave to appeal to a high court is, in
effect, an appeal against the refusal of leave to
appeal by the
magistrates’ court. This means that the refusal of leave
to appeal by the high court in terms of s 309C
is appealable to this
court with the leave of the high court or, where such leave has been
refused, with the leave of this court.
In either event, so it
was held in
Khoasasa
,
the order appealed against is the refusal of leave, with the result
that this court cannot decide the appeal itself. It follows,
as Brand
JA said, that in an appeal of this kind, the issue to be
determined by this court is not whether the appeal against
conviction
and sentence should succeed, but rather whether the high court should
have granted leave, which in turn depends on whether
the appellant
could be said to have reasonable prospects of success on appeal. The
position thus stated has since been confirmed
in a number of
decisions by this court.
[20]
[19]
The
Superior Courts Act 10 of 2013
, which came into effect on 23
August 2013 has since replaced the Supreme Court Act, provides in s
16(1)
(b)
that an appeal against any decision of a division of the high court
on appeal to it, lies to this court upon ‘special leave’
having been granted by this court. Since
R
v Sillas
,
[21]
the test as to whether to apply amending legislation that came into
operation after an offence had been committed has been driven
by
considerations of reasonableness and fairness to the accused
person.
[22]
Here, it makes no difference.
[23]
The appellant’s petition was commenced in the regional court on
4 September 2012. This court was therefore at liberty to
make the
order that it did on 8 September 2015. The matter is properly before
us. This court in
Gonya v
S
,
[24]
considered the transitional provisions
(s 52)
of the
Superior Courts
Act in
relation to pending matters. It held that ‘proceedings
pending in any court’ as referred to in s 52 of the Act must
include criminal proceedings.
[25]
Accordingly, this court found on the basis of the date of the
commencement of the trial (which was before the promulgation of the
Superior Courts Act) that
the case had been a matter pending between
the two Acts.
[26]
Whether the leave given in this case was that for which provision was
made under the Supreme Court Act or the ‘special leave’
of the new
Superior Courts Act, in
the words of Ponnan JA in
S
v Van Wyk & another
,
[27]
‘the higher threshold’ of ‘special circumstances’
has been met so as to justify leave to appeal to this
court being
granted: in this case it makes no difference, either way.
[20]
Changes in the legislation and court rules governing court procedure
and the consequential intertemporal arrangements have
always
presented challenges to our courts.
[28]
When examining transitional provisions relating to questions of court
procedure, the starting point is to look at when the date
on which
proceedings commenced.
[29]
As mentioned above, in this instance we are dealing with petitions
proceedings, thus the appropriate point to look at to determine
whether proceedings are pending, is the point from which the petition
proceedings themselves were lodged.
[30]
[21]
The decision of the
high court against which the appeal in this case is concerned is the
dismissal of an appeal to it of its decision
to refuse a petition to
appeal. This court cannot, at this stage, make an order pertaining to
how the question of sentence should
be dealt with. It would have been
in the interests of the State, the appellant and society if we could
have set the sentence aside
and directed that the magistrate consider
the question of sentence afresh. Somewhat incongruously, for reasons
that follow, the
appeal must be directed to the high court for it to
consider, once again, the question of sentence.
[31]
The principle has been well-established in this court on the basis of
the legislation as it currently stands.
I
refer to the following, in particular:
S
v Essop
;
[32]
S
v Mndebele
;
[33]
S
v Dipholo
;
[34]
S
v Van Wyk & another
;
[35]
S
v Tonkin;
[36]
S
v Matshona
;
[37]
S
v Slinger
;
[38]
S
v Kriel
;
[39]
S
v Smith
;
[40]
S
v AD
[41]
and
S
v Khoasasa
.
[42]
[22]
The legally required process may be distressingly convoluted but in
the absence of a statutory amendment to the process of
appeals, the
correct order is to remit the matter back to the high court to hear
the appeal when finding that the high court ought
to have granted the
appellant leave to appeal to it against the trial court’s
sentence. The high court could then, in turn,
remit the matter to the
regional court for sentencing afresh, after setting the sentence
aside. The high court could also decide,
depending on the facts and
submissions before it when hearing the appeal, to substitute its own
sentence there and then. How the
appeal is best to be dealt with is a
matter for the high court to decide. As Brand JA lamented in
Tonkin
,
the process is ‘cumbersome and wasteful of both time and
money’, with obvious injustices.
[43]
[2
3
]
The following order is
made:
1.
The appeal is upheld.
2.
The order of the court below
refusing leave to appeal is set aside and replaced with the
following:
‘
Leave
to appeal to the Gauteng Local Division of the High Court,
Johannesburg is granted.’
_________________________
N
P Willis
J
udge
of
A
ppeal
APPEARANCES:
For the
Appellant:
M Kolbe SC
Instructed by:
Strauss De Waal Attorneys, Benmore
Phatsoane Henney
Attorneys
, Bloemfontein
For the
Respondent:
N Muller
Instructed by:
The Director of Public Prosecutions,
Johannesburg
The Director of
Public Prosecutions, Bloemfontein
[1]
These were: Benmore Gardens, Epsom
Downs, Fourways (in two locations), Lonehill, Rivonia, Sandown,
Sandton City and Sunninghill.
[2]
In terms of
s 51(2)
(a)
(i)
of the
Criminal Law Amendment Act 105 of 1997
, the minimum sentence
to be imposed on a first offender following a conviction of
theft involving an amount of more than
R500 000 is 15 years’
imprisonment unless substantial and compelling circumstances exist
which justify the imposition of
a lesser sentence.
[3]
S v Malgas
[2001] ZASCA 30
;
2001 (2) SA 1222
(SCA)
.
[4]
Para 25.
[5]
See paras 7 to 10.
[6]
See, for example,
S
v Legoa
[2002] ZASCA 122
;
2003 (1) SACR 13
(SCA) paras 20 and 21;
S
v Ndlovu
[2002] ZASCA 144
;
2003 (1) SACR 331
(SCA) para 12;
S
v Makatu
[2006] ZASCA 72
;
2006 (2) SACR 582
(SCA) paras 3 and 17; and
Negondeni v
The
State
[2015] ZASCA
132
.
[7]
S v Legoa
(above)
paras 21. See S S Terblanche
The
guide to sentencing in South Africa
2 ed (2007), discussion under ‘3.4 Reference to the Act in the
charge sheet’ at 46-47.
[8]
S v Ndlovu
(above) paras 12-14.
[9]
S
v
Makatu
(above) paras 4-7.
[10]
Ibid.
[11]
S v Legoa
(above)
para 20;
S v Cunningham
2004 (2) SACR 16
(E) at 19
b-c
.
See also
S v Ndlovu
1999 (2) SACR 645
(W) at 649. Terblanche op cit at 46.
[12]
Section 35(3)
(a)
of
the Constitution.
[13]
Para 7.
[14]
S v Ndlovu; S v Sibisi
2005 (2) SACR 645 (W)
[15]
S v Mabuza & others
[2007] ZASCA 110
;
2009 (2) SACR 435
(SCA) para 15.
[16]
At 654
f-g
.
[17]
See also
S
v Legoa
(above) para
22; and
S v Makatu
(above) paras 3-7.
Terblanche notes that two scenarios have crystallised where there
would be a clear indication of unfairness
in this regard, namely (a)
where the accused was misled by the charge sheet believing the State
to rely on a different sentencing
regiem; or (b) where the accused
is unrepresented.
[18]
S v Khoasasa
[2002]
ZASCA 113
;
2003
(1) SACR 123
(SCA) para 14.
In
S
v Matshona
[2008]
ZASCA 58
;
2013 (2) SACR 126
(SCA) para 4, Leach AJA described the
reasoning in
Khoasasa
as unassailable.
[19]
See also
S
v Smith
[2011] ZASCA; 2012
(1) SACR 567 (SCA) para 3.
[20]
See, for example,
S
v Kriel
[2011]
ZASCA 113
;
2012 (1) SACR 1
(SCA) paras 11-12;
S
v Smith
(above)
paras 2-3;
S
v AD
[2011] ZASCA 215
paras 3-6.
[21]
R v
Sillas
1959 (4) SA 305
(A) at 312F-H.
[22]
At 309F-312H and
313E-315E. See also
Oudebaaskraal
(Edms) Bpk v Jansen Van Vuuren
2001 (2) SA 806
(SCA) at 811H; and
Naude
en andere v Heatlie en andere; Naude en andere v Worcester-Oos
Hoofbesproeiingsraad
2001 (2) SA 815
(SCA) at 820I-821A.
[23]
Gonya v S
[2016] ZASCA 34
paras 5-10.
[24]
Gonya v S
[2016]
ZASCA 34
paras 5-10.
[25]
Paragraph 7.
[26]
Ibid.
[27]
S v Van Wyk
& another
[2014]
ZASCA 152
;
2015 (1) SACR 584
(SCA)
.
[28]
In fact, the very first case that
began the business of this court on 4 June 1910 arose out of similar
circumstances. When
the Appellate Division (as this court was
then called) assumed the appellate jurisdiction for the newly
establish Union of South
Africa’s Supreme Courts, it succeeded
the Judicial Committee of the Privy Council. See
Fichardt
Ltd v Faustman
1910 AD 1.
[29]
Fichardt Ltd v Faustman
(above) at 3. See also, for an analogous example, Magistrates’
Court rule 69.
[30]
Ibid.
[31]
Para 39.
[32]
Essop v S
[2016] ZASCA 114.
[33]
Mndebele v S
[2016]
ZASCA 7
.
[34]
Dipholo v S
[2015]
ZASCA 120
.
[35]
S v Van Wyk
(above)
.
[36]
S v Tonkin
[2013]
ZASCA 179
;
2014 (1) SACR 583
(SCA)
.
[37]
S v Matshona
[2008]
ZASCA 58
;
2013 (2) SACR 126
(SCA)
.
[38]
Slinger v S
[2013]
ZASCA 197
.
[39]
S v Kriel
(above)
.
[40]
S v
Smith
(above)
.
[41]
AD v S
ZASCA
215
.
[42]
S v
Khoasasa
[2002] ZASCA 113
;
2003 (1) SACR 123
(SCA)
.
[43]
S v Tonkin
[2013]
ZASCA 179
;
2014 (1) SACR 583
(SCA)
,
followed and approved in
S
v Van Wyk
(above)
para
39.