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[2015] ZASCA 63
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Johannes Windvogel v The State (20091/2014) [2015] ZASCA 63; Johannes Windvogel v The State (20091/2014) [2015] ZASCA 63 (8 May 2015) (8 May 2015)
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SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 20091/2014
In
the matter between:
JOHANNES
WINDVOGEL
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Johannes
Windvogel v The State
(20091/2014)
[2015] ZASCA 63
(8 May 2015).
Coram:
Mhlantla
and Leach JJA and Mayat AJA
Heard:
30
March
2015
Delivered:
8 May 2015
Summary:
Criminal
law and procedure – application in terms of s 16(1)(
b
)
of the
Superior Courts Act 10 of 2013
for special leave to appeal
against a decision of a division of the high court sitting as a court
of appeal – high court
has no jurisdiction to hear application
– special leave of the Supreme Court of Appeal is required –
special leave
to appeal against sentence granted.
Drug Offences –
cocaine – dealing in contravention of
s 5(
b
) of the
Drugs and Drug Trafficking Act 140 of 1992
– sentence –
appellant sold cocaine during a police trap – high court
misdirected itself when ante-dating the
sentence to a date when
appellant was on bail – cumulative effect of sentence
disturbingly inappropriate – sentence
set aside and replaced by
sentence of eight years on each count – a portion of the
sentences in the three counts to run concurrently
with sentence on
first count – effective sentence of 20 years’
imprisonment.
ORDER
On
appeal from:
Gauteng
Division, Johannesburg (Wepener J with Vally J concurring sitting as
court of appeal):
1
The appellant is granted special leave to appeal in terms of
s 16
(1)(
b
) of the
Superior Courts Act 10 of 2013
against the
sentence of imprisonment imposed by the Gauteng Division,
Johannesburg.
2
The appeal is upheld.
3
The sentence imposed by the court a quo is set aside and replaced
with:
‘
(a)
The accused is sentenced to a period of eight years’
imprisonment on each of the four counts, that is, counts 6,7,8 and
10
respectively.
(b)
A period of four years of each sentence imposed on counts 7, 8 and 10
is ordered to run concurrently with the sentence imposed
on count 6
(effectively a sentence of 20 years’ imprisonment).
(c)
In terms of
s 282
of the
Criminal Procedure Act 51 of 1977
the
sentence is antedated to 31 January 2003.’
JUDGMENT
Mhlantla
JA (Leach JJA and Mayat AJA concurring)
[1]
The appellant was arrested on 28 June 2000 in consequence of a
trapping operation by members of the
South African Police Service. He
was charged together with his former co-accused in the regional
court, Johannesburg on 12 counts
of dealing in prohibited substances
in contravention of
s 5(
b
)
of the Drugs and Drug Trafficking Act 140 of 1992 (the Drugs Act).
[1]
At the commencement of the trial, the appellant pleaded not guilty.
The State adduced evidence whilst the appellant elected not
to
testify. The uncontested evidence tendered on behalf of the State was
that the appellant had been identified as a dealer. The
police
officers who set up a trap for the appellant testified that the
appellant had participated during the sale of cocaine over
a period
of two weeks on four different occasions and that he appeared to be
in control of the operations.
[2]
At the end of the trial, the appellant was convicted on four counts
as follows:
(a)
Count 6: 3.1 grams of cocaine and one tablet containing methaqualone
(a mandrax tablet) sold for
R1 300;
(b)
Count 7: 3.8 grams of cocaine sold for R1 450;
(c)
Count 8: 9.5 grams of cocaine sold for R2 800; and
(d)
Count 10: 4.8 grams of cocaine sold for R 1 300.
[3]
On 31 January 2003 the trial court imposed a sentence of eight years’
imprisonment on each count.
An effective term of 32 years’
imprisonment was thus imposed. The trial court ordered this sentence
to run concurrently with
a sentence of 20 years’ imprisonment
that the appellant was already serving for a previous conviction for
a similar offence.
Two months later, the trial court granted a
confiscation order against the appellant’s estate in terms of
s
18
of the
Prevention of Organised Crime Act 121 of 1998
.
[4]
On 18 February 2004 the appellant’s previous conviction and
sentence of 20 years’ imprisonment
were set aside on appeal.
Subsequently, the trial court granted the appellant leave to appeal
against the sentence imposed in this
matter. On 6 July 2005 the
appellant was released on bail pending appeal. At that stage, he had
already served a period of almost
two and a half years of his
sentence.
[5]
On 7 November 2013, almost nine years after leave to appeal had been
granted by the trial court, the
appeal came before the Gauteng
Division, Johannesburg (Wepener and Vally JJ). Throughout this period
the appellant had been on
bail pending appeal. The court a quo had
regard to the appellant’s previous convictions most of which
related to dealing
in drugs and held that the appellant was an
unrepentant drug dealer. It concluded that the total sentence of 32
years’ imprisonment
had been appropriate.
[6]
In an attempt to afford the appellant the benefit of the period
already served, the court a quo said:
[2]
‘
The
appellant was incarcerated from 2002 to July 2005, i.e. a period of 3
years on the conviction and sentence of 20 years’
imprisonment,
which have been set aside. This, the magistrate could not take into
account as the conviction had not been set aside
when the appellant
was convicted and sentenced by the magistrate in the current matter.
This would, in my view, be an appropriate
case to take the period of
imprisonment so served into account by antedating the sentence by 3
years. The appellant should have
the benefit of 3 years’
incarceration as if it was served for the conviction in this matter.’
[7]
The court a quo therefore set aside the sentence imposed by the trial
court and replaced it with an
identical sentence but antedated it to
7 November 2010. On 12 November 2013 the appellant applied for leave
to appeal to this court.
Two weeks later, on 29 November 2013 the
court a quo granted leave to appeal to this court.
[8]
The appeal in this court was heard on 1 March 2015. Subsequent to the
hearing of the appeal, it became
apparent that the court a quo did
not have jurisdiction to hear an application for leave to appeal to
this court as
s 16(1)(
b
) of the Superior Courts Act 10 of 2013
(the Act), which came into operation on 23 August 2013, provided that
an appeal against
any decision of a division on appeal to it lies to
the Supreme Court of Appeal upon special leave having been granted by
this court.
Consequently, the jurisdictional basis for an appeal to
this court was absent. In the result, the court a quo did not have
the
power to grant the appellant leave to appeal to this court and
the proceedings on 1 March were a nullity.
[9]
This court had to consider an application for special leave to appeal
before entertaining the appeal.
The parties were apprised of the
applicable provisions and the appellant was requested to lodge a
formal application for special
leave to appeal to this court.
[3]
On 27 March 2015 the appellant then filed an application for special
leave to appeal to this court in respect of sentence in terms
of s
16(1) of the Act. The application was heard on 30 March, being the
reconvened date of the matter.
[10]
In
Van
Wyk
v
S,
Galela
v
S
,
[4]
this court when considering an application for special leave said:
‘
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 to this court.
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 to the parties or of great public
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.’
[11]
This court has held that the imposition of a sentence is
pre-eminently within the discretion of a trial court.
A court of
appeal will be entitled to interfere with the sentence imposed by the
trial court if the sentence is: disturbingly inappropriate
or so
totally out of proportion to the magnitude of the offence;
sufficiently disparate; vitiated by misdirections showing that
the
trial court exercised its discretion unreasonably or is otherwise
such that no reasonable court would have imposed it.
[5]
[12]
The merits of an appeal are relevant when determining whether special
circumstances exist in order to grant
special leave to appeal. Before
us, counsel for the appellant urged us to grant special leave to
appeal on the basis of the following
grounds: first, that the
sentence imposed by the court a quo did not achieve its stated
purpose of granting the appellant the benefit
of the period
incarcerated and that it resulted in him having to serve more than 32
years’ imprisonment; secondly, the cumulative
effect of the
sentence imposed is so severe as to be shockingly inappropriate. On
the other hand, counsel for the State opposed
the application on the
basis that there were no reasonable prospects of success.
[13]
I agree with the submission on behalf of the appellant. A sentence
can only be antedated in terms of s 282
of the Criminal Procedure Act
51 of 1977
[6]
(the CPA) when, on
appeal or review a sentence for a conviction is either imposed or
altered, and the court is satisfied that part
of the sentence has
already been served and that the offender should be given the benefit
thereof. It is common cause that the
appellant was not incarcerated
during November 2010 nor was he serving a sentence when the appeal
was heard. He was on bail from
July 2005 until November 2013.
[14]
Consequently, although the court a quo expressed its stated intent to
afford the appellant the benefit of
time he had already served after
being convicted, the effect of it antedating the appellant’s
effective sentence of 32 years
to 7 November 2010 had the opposite
effect. It obliged the appellant to serve 32 years from that date, so
the period of more than
two and a half years from January 2003 to
July 2005 which he served before he was released on bail did not
accrue to his benefit.
Effectively then, the appellant’s
sentence as imposed by the court a quo will be the two and a half
years imprisonment that
he served from January 2003 plus the 32 years
he is obliged to serve with effect from 7 November 2010 ie a period
of 34 and a half
years. Such a sentence, of course, was not what the
court a quo intended.
[15]
In the result the court a quo misdirected itself and this resulted in
a failure of justice which rendered
the appeal unfair. This
misdirection entitles us to intervene and consider sentence afresh.
It follows that the appellant must
be granted leave to appeal in
terms of s 16(1)(
b
) of the Act to this court against his
sentence.
[16]
As to sentence: the appellant was 38 years old at the time of the
commission of the offences and is the father
of eight children. He
was the sole breadwinner for his family. He has an unimpressive list
of previous convictions. Three of these
are relevant to the offences
in this case. These are: on 19 November 1983 the appellant was
convicted of dealing in drugs (6 mandrax
tablets) and was sentenced
to five years’ imprisonment. On 11 March 1991 he was again
convicted of dealing in drugs, being
61 mandrax tablets whereupon a
sentence of 12 months’ imprisonment was imposed. A further
period of three years’ imprisonment
was suspended for five
years on certain conditions. On the same day the appellant was also
convicted on two counts of dealing in
drugs. A sentence of 12 years’
imprisonment was imposed. The offences in this appeal were committed
shortly after his release
from prison. It is clear that the appellant
continued with his drug dealing conduct over a period of many years.
The sentences
imposed as reflected in his SAP 69 form did not deter
him from continuing with his drug dealing activities once he
completed serving
each sentence. In my view, the court a quo was
justified in describing him as an unrepentant dealer.
[17]
The appellant has been convicted of serious offences which were
committed for personal gain. Counsel for
the appellant categorised
the offences as activities flowing from a single trapping operation
which involved minimal values and
quantities of drugs. He submitted
that the police could have arrested the appellant during the first
encounter but encouraged him
to commit the other three offences. He
submitted that under the circumstances, the sentence imposed was
inappropriate. In support
of this contention, he relied on the
decisions of
S
v
Hightower,
[7]
S
v
Randall
[8]
and
S
v
Mkhize
[9]
to illustrate the severity of the sentence.
[18]
This argument is without merit. The appellant conducted his drug
dealing business on a continuous basis.
The facts of the cases relied
upon can be distinguished from the facts of this case. For example,
in
Hightower
, the appellant, who was a 55 year old first
offender, was convicted of dealing in 220 grams of cocaine. He had
co-operated with
the police. He had pleaded guilty and had shown
remorse. His sentence of 20 years’ imprisonment was set aside
on appeal and
replaced with one of 10 years, three years of which
were suspended.
[19]
In
Randall
, the accused was 23 years old and a first offender.
She was convicted of dealing in 717 grams of cocaine. The court
accepted that
she had been involved in one incident and concluded
that she had been induced to commit the offence by others who
exploited her
youth and innocence. The sentence of 15 years’
imprisonment of which seven years were suspended was confirmed on
appeal.
[20]
In
Mkhize
, the appellant was 42 years old and a mother of two
children. She was arrested in consequence of a police trap and
co-operated
with the police. She was convicted of dealing in drugs
for selling 25 rocks of cocaine with a street value of R1 375.
She
had a previous conviction of dealing in drugs. The sentence of 12
years’ imprisonment by the trial court was reduced to eight
years’ imprisonment of which three years were suspended on
certain conditions.
[21]
On the other hand, the appellant in this matter has three previous
convictions and has been convicted on
four counts of dealing in
cocaine. It is clear from the evidence that he had conducted a drug
dealing business over many years.
The attempt to trivialise the
serious nature of the offences is accordingly rejected.
[22]
Having regard to all the relevant factors, I am of the view that the
sentence of eight years’ imprisonment
on each count was
appropriate. However, the cumulative effect thereof is shockingly
excessive. Counsel for the State, in my view,
quite correctly found
himself unable to argue the contrary. It seems to me that a portion
of some of the sentences should be served
concurrently, so that an
effective period of 20 years’ imprisonment be imposed.
Furthermore, the period of approximately
two and a half years already
served by the appellant must be taken into account by the Department
of Correctional Services. This
can be achieved by an order antedating
the sentence to 31 January 2003, being the date when the trial court
imposed the sentence.
The appeal therefore succeeds on these respects
only.
[23]
In the result the following order is made:
1 The appellant is
granted special leave to appeal in terms of s 16 (1)(
b
) of the
Superior Courts Act 10 of 2013
against the sentence of imprisonment
imposed by the Gauteng Division, Johannesburg.
2 The appeal is
upheld.
3 The sentence
imposed by the court a quo is set aside and replaced with:
‘
(a)
The accused is sentenced to a period of eight years’
imprisonment on each of the four counts, that is, counts 6,7,8 and
10
respectively.
(b) A period of four
years of each sentence imposed on counts 7, 8 and 10 is ordered to
run concurrently with the sentence imposed
on count 6 (effectively a
sentence of 20 years’ imprisonment).
(c)
In terms of
s 282
of the
Criminal Procedure Act 51 of 1977
the
sentence is antedated to 31 January 2003.’
__________________
NZ
MHLANTLA
JUDGE
OF APPEAL
APPEARANCES
:
For
Appellant:
E Giddion
E Giddion Attorneys
Johannesburg
c/o Frans Botha Attorneys
3 Barnes Street
Bloemfontein
For
Respondent:
F Mohamed
The Director of Public Prosecutions
Johannesburg
c/o The Director of Public Prosecutions
Bloemfontein
[1]
Section 5
(
b
)
of the Drugs Act reads:
‘
Dealing
in drugs
No
person shall deal in -
(a)
…
.
(b)
Any
dangerous dependence-producing substance or any undesirable
dependence-producing substance
.
’
[2]
Paragraph 21.
[3]
Section 17(3) of the Act
provides:
‘
(3)
An
application for special leave to appeal under section 16(1)(
b
)
may be granted by the Supreme Court of Appeal on application filed
with the registrar of that court within one month after the
decision
sought to be appealed against, or such longer period as may on good
cause be allowed, and the provisions of subsection
(2)(
c
)
to (
f
)
shall apply with the changes required by the context.’
[4]
Van Wyk
v
S,
Galela
v
S
(
20273/2014,
20448/2014)
[2014] ZASCA 152
(29 September 2014) para 21;
[2014] 4
All SA 708
(SCA). See also
Westinghouse
Brake
&
Equipment
(Pty)
Ltd
v
Bilger
Engineering
(Pty)
Ltd
1986 (2) SA 555
(A) at 564H – 565E.
[5]
S
v
Romer
2011
(2) SACR 153
(SCA) para 22.
[6]
Section 282
reads:
‘
Whenever
any sentence of imprisonment, imposed on any person on conviction
for an offence, is set aside on appeal or review and
any sentence of
imprisonment or other sentence of imprisonment is thereafter imposed
on such person in respect of such offence
in place of the sentence
of imprisonment imposed on conviction, or any other offence which is
substituted for that offence on
appeal or review, the sentence which
was later imposed may, if the court imposing it is satisfied that
the person concerned has
served any part of the sentence of
imprisonment imposed on conviction, be antedated by the court to a
specified date, which shall
not be earlier than the date on which
the sentence of imprisonment imposed on conviction was imposed, and
thereupon the sentence
which was later imposed shall be deemed to
have been imposed on the date so specified.’
[7]
S
v
Hightower
1992
(1) SACR 420 (W).
[8]
S
v
Randall
1995 (1) SACR 559 (C).
[9]
S
v
Mkhize
2000 (1) SACR 410
(W).