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[2015] ZASCA 29
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Strydom v S (20215/2014) [2015] ZASCA 29 (23 March 2015)
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SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE
NO: 20215/2014
Not
Reportable
In
the matter between:
CORNELIA
STRYDOM
.....................................................................................
APPELLANT
and
THE
STATE
.......................................................................................................
RESPONDENT
Neutral
citation:
Strydom v The State
(20215/14)
[2015] ZASCA 29
(23 March
2015).
Coram:
Lewis, Pillay et Mbha JJA
Heard:
12 March 2015
Delivered:
23 March 2015
Summary:
Sentence
– imprisonment of non-parole period ordered in terms of s
276B(1) of
Criminal Procedure Act 51 of 1977
– non-parole order
to be made only in exceptional circumstances - court required to
afford parties opportunity to address
court on making such an order
and the period thereof – failure to do so constitutes
misdirection.
ORDER
On
appeal from:
Gauteng
Local
Division
, Johannesburg (Borchers J
sitting as court of first instance)
1 The appeal is
upheld.
2 the order of the
court below refusing the appellant leave to appeal is set aside and
replaced with the following:
‘
The
appellant is granted special leave to appeal to the Gauteng Local
Division, Johannesburg, against the sentence imposed by the
Regional
Court’;
3 The appellant is
directed to deliver her notice of appeal on or before 17 March 2015
based on the findings made in this judgment
and containing such
further grounds of appeal as may be permitted by the court of appeal.
4 The Director of
Public Prosecutions, Gauteng Local Division, is requested to place
this appeal on the roll as a matter of urgency
on a date to be
arranged with the appellant’s counsel.
5 The registrar of
this court is requested to make three copies of the record filed in
this court available to the appellant’s
attorney for use in the
appeal to the Gauteng Local Division, Johannesburg, should the Judge
President of that division sanction
this arrangement.
REASONS FOR
JUDGMENT
Pillay JA (Lewis
et Mbha JJA Concurring)
[1] The order set
out above was made by this court with the agreement of the parties at
the hearing of the appeal. The reasons for
making the order follow.
The appeal is against the order of the Gauteng Local Division,
Johannesburg refusing the appellant’s
application for leave to
appeal to that court against her sentence imposed in the Gauteng
Regional Court (Specialised Commercial
Crime Court) sitting at
Johannesburg. Her conviction was based on 36 charges of fraud
involving a benefit to her of R375 816.92.
She was consequently
sentenced to serve a term of five years’ imprisonment with the
proviso that in terms of s 276B of the
Criminal Procedure Act 51 of
1977 (CPA) the appellant serve three years of imprisonment before
being placed or being considered
eligible for parole.
[2] The appellant’s
application for leave to appeal in terms of s 309B of the CPA to the
regional magistrate against sentence
was dismissed. She then
petitioned the Judge President of the Gauteng Local Division in terms
of s 309C of the CPA for such leave.
This application was also
dismissed whereupon she sought and obtained leave to appeal to this
court against the dismissal of the
petition.
[3] Thus, the issue
before this court is whether the application in terms of s 309B of
the CPA was correctly dismissed or not.
[4] The background
to this matter is as follows. The appellant was employed by the City
of Johannesburg as a Specialist Pension
Administrator. Her duties
included paying out expenses incurred for specialised home care by
former employees of the municipality
who were injured on duty and
required such care. During the course of her employment, the
appellant became involved in a scam to
defraud the municipality. She
colluded with one Marlene Horn who would submit false invoices for
treatment not in fact administered.
The appellant would then arrange
payment to Horn in terms of the false invoices. The two of them would
then share the spoils of
their scheme which occurred between 6 June
2007 and 30 September 2009. She and Horn were charged with 36 counts
of fraud. Horn
for her part entered into an agreement with the
prosecution in terms of s 105A of the CPA and their trials were
consequently separated.
[5] The appellant
pleaded guilty to all the charges and admitted in a written plea
submitted in terms of s 112 of the CPA to having
committed all the
offences referred to in the charge sheet and that she had benefitted
to the tune of R375 816.92 from this
illegal venture. The
necessary elements of fraud were admitted and she was consequently
convicted as charged.
[6] The appellant
admitted to one previous conviction of fraud of her former employer
(prior to City of Johannesburg) – having
committed that offence
in 1998 and in respect of which she was sentenced to correctional
supervision. It is unclear whether this
included any directives for
her to attend any course within the Correctional Services system in
order to enhance her rehabilitation.
[7] Prior to
sentence, two reports – a pre-sentence report and one in
respect of the interests of her three children –
were prepared
by social worker Daleen van Biljon. In the first report, as Van
Biljon testified, her investigations disclosed allegations
of abuse
and financial demands on the appellant by her husband. The alleged
abuse entailed physical and mental abuse from the time
they got
married when she was still in her teens.
[8] The appellant
relied on these reports to explain that the aforementioned abuse and
demands by her husband played a significant
role in her committing
these crimes. She also relied on the reports in respect of the
children’s interest presumably in an
attempt to avoid a
sentence of direct imprisonment in the light of the age of her young
daughter – seven years old - who
lives with her.
[9] A number of
issues in the record and judgment on sentence lay the magistrate open
to criticism. I will confine this judgment
to only one aspect as it
is unnecessary to deal with every aspect that gives rise to concern.
[10] In regard to
the imposition of the non-parole period, s 276B of the CPA reads as
follows:
‘
276B
Fixing of non-parole-period
(1)(
a
)
If a court sentences a person convicted of an offence to imprisonment
for a period of two years or longer, the court may as part
of the
sentence, fix a period during which the person shall not be placed on
parole.
(
b
) Such
period shall be referred to as the non-parole-period, and may not
exceed two thirds of the term of imprisonment imposed or
25 years,
whichever is the shorter.
(2) If a person who
is convicted of two or more offences is sentenced to imprisonment and
the court directs that the sentences of
imprisonment shall run
concurrently, the court shall, subject to subsection (1)
(b)
,
fix the non-parole-period in respect of the effective period of
imprisonment.’
Though
not specifically stated by the magistrate, she clearly imposed the
order by invoking s 276B(1)
(a)
.
[11] The appellant
was not provided with an opportunity of addressing the court when the
magistrate invoked s 276B of the CPA in
order to fix a period during
which she could not be placed on or considered for parole. This is
precisely the issue raised by the
appellant in this appeal. The
appellant contends that she ought to have been afforded an
opportunity to address the court prior
to the imposition of the
non-parole order. It is unnecessary to further discuss this aspect
since counsel for the State has very
fairly conceded that the
magistrate ought to have afforded the appellant an opportunity to
address the court on the order prior
to making it. The failure to do
so constituted a misdirection. It is also noteworthy that the
magistrate did not give any reasons
for invoking this section in her
judgment.
[12]
It is however necessary to deal with this matter in a little bit more
detail despite the concession. In
S
v Stander
[1]
in which s 276B was invoked without invitation to the parties to
address the court on it and where no reason for invoking it was
given, it was explained that when considering whether the petition
was wrongly refused – and therefore whether there are
reasonable prospects of success on appeal – three issues arise.
First, whether the magistrate was obliged to give reasons
for
imposing a non-parole portion of the prison sentence, second, the
circumstances under which the court would be entitled to
impose a
non-parole order as part of the sentence and, third, whether the
magistrate was obliged to invite or allow argument before
the
imposition of a non-parole order.
[13]
Regarding the first issue, accused persons are always entitled to the
reasons for decisions which will affect them. They are
entitled to
understand why and how such decisions have been arrived at. As
Corbett JA said in
S
v Immelman
[2]
,
‘
It
has been decided in this Court, with reference to the verdict of the
Court, that, although there is no provision in the Criminal
Procedure
Code for the delivery of a judgment when a Judge sits alone or with
assessors (when these decisions were given the alternative
system of
trial by jury still obtained), in practice such a judgment is
invariably given and that it is clearly in the interests
of justice
that it should be given (see
R
v Majerero and Others
1948
(3) SA 1032
(A);
R
v Van der Walt
1952
(4) SA 382
(A)). It seems to me that, with regard to the sentence of
the Court in cases where the trial Judge enjoys a discretion, a
statement
of the reasons which move him to impose the sentence which
he does also serve the interests of justice. The absence of such
reasons
may operate unfairly, as against both the accused person and
the State.’
[14] The
magistrate’s failure to give reasons for invoking s 276B of the
CPA leaves one none the wiser as to why she did so.
It is not only
unfair to both the appellant and the respondent but also to the
public. While the statutes do not demand this, it
is a salutary
practice developed and generally adhered to over a long period of
time. In my view the reasons as set out by Corbett
JA in
Immelman
justify strict adherence to the practice of giving reasons for
decisions.
[15]
With regard to the second issue, the circumstances under which such
an order could be imposed, Snyders JA, in
Stander
,
recognising the provisions of the Correctional Services Act 111 of
1998 (CSA) as amended, articulated the history and the development
of
the courts’ approach to this aspect of the imposition of a
non-parole order. In referring to a number of decisions,
[3]
she concluded that while the legislation empowers the courts to
impose such an order when sentencing, it should only do so when
the
circumstances specifically relevant to parole in addition to any
aggravating factors pertaining to the commission of the crime,
and
where a proper, evidential basis had been laid for a finding that
such circumstances exist so as to justify the imposition
of such an
order.
[4]
This court held that a
court should not resort to s 276B of the CPA lightly and rather, as
this court has often indicated, allow
the officials of the Department
of Correctional Services, who are guided by the CSA and the attendant
regulations, to make such
assessments and decisions as well as the
parole board.
[16]
The third issue is whether a magistrate should allow or invite
argument prior to the imposition of a non-parole period. The
imposition of such an order has a drastic impact on sentence. In this
matter invoking s 276B came as a surprise to both the appellant
and
the respondent. It was not suggested by the prosecution and, as
indicated above, there was no warning that it was being contemplated.
Section 276B entails an order which is a determination in the present
for the future behavior of the person to be affected thereby.
In
other words, it is an order that a person does not deserve being
released on parole in future. (See:
S
v Bull; S v Chavulla & others)
.
[5]
Such
an order should only be made in exceptional circumstances which can
only be established by investigation and a consideration
of salient
facts, legal argument and perhaps further evidence upon which such a
decision rests.
[17]
In another similar case,
S
v Mthimkulu
,
[6]
this court dealt with an order of a parole period imposed in terms of
s 276B(2). In this case also there was no invitation to address
the
court prior to the imposition of the non-parole order. It needs to be
noted that this case dealt with what appeared to the
trial court to
be a peremptory imposition of a non-parole order which this court
rejected. The judgment is relevant in as far as
it deals with the
failure to afford the parties an opportunity to address the court in
that regard prior to the imposition of such
an order. This court held
that a failure to afford the parties the opportunity to address the
sentencing court might, depending
on the case, well constitute an
infringement of such fair-trial rights. In the present case, I am of
the view that the failure
to do so indeed constitutes a misdirection.
On this ground alone there is a reasonable prospect of success on
appeal. In the circumstances,
leave to appeal against the sentence
(as it stands) should have been granted, as there are clearly
prospects of success on appeal.
[18] The appellant
has already served two years and six months’ imprisonment of
the sentence. But for the non-parole order,
her incarceration would
already have been reduced or at least consideration would already
have been given to that by the authorities.
The prejudice caused by
the non-parole order may be reduced if the appeal is successful. This
highlights the need for the appeal
to be dealt with as soon as
possible. The order I propose to hand down ought to expedite it.
[19] The following
order is made:
1 The appeal is
upheld.
2 the order of the
court below refusing the appellant leave to appeal is set aside and
replaced with the following:
‘
The
appellant is granted special leave to appeal to the Gauteng Local
Division, Johannesburg, against the sentence imposed by the
Regional
Court’;
3 The appellant is
directed to deliver her notice of appeal on or before 17 March 2015
based on the findings made in this judgment
and containing such
further grounds of appeal as may be permitted by the court of appeal.
4 The Director of
Public Prosecutions, Gauteng Local Division, is requested to place
this appeal on the roll as a matter of urgency
on a date to be
arranged with the appellant’s counsel.
5 The registrar of
this court is requested to make three copies of the record filed in
this court available to the appellant’s
attorney for use in the
appeal to the Gauteng Local Division, Johannesburg, should the Judge
President of that division sanction
this arrangement.
R PILLAY
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: Mr B
Roux S C
Instructed by:
Jan Ellis Attorneys,
c/o Smit & Grové, Johannesburg
Kramer Weihmann &
Joubert , Bloemfontein
FOR RESPONDENT: Mr T
Zitha
Instructed by:
The Director of
Public Prosecutions, Johannesburg
The Director of
Public Prosecutions, Bloemfontein
[1]
S
v Stander
2012
(1) SACR 537
(SCA) para 3.
[2]
S
v Immelman
1978
(3) SA 726
(A) at 729C.
[3]
S v Mhlakaza &
another
1997
(1) SACR 515
(SCA) at 521d-i;
S
v Pauls
2011
(2) SACR 417
(ECG);
S
v Williams; S v Papier
[2006] ZAWCHC 5
;
2006
(2) SACR 101
(C);
S
v Mshumpa & another
2008
(1) SACR 126 (E).
[4]
See
Stander
para 20.
[5]
S
v Bull; S v Chavulla
&
others 2001 (
1
2)
SACR 681
(SCA) at 692d-i, 693d-g, and 697a.
[6]
S
v Mthimkulu
2012
(2) SACR 89
(SCA).