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[2010] ZAGPJHC 123
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Ncube and Others v S (A211/09) [2010] ZAGPJHC 123; 2011 (2) SACR 471 (GSJ) (4 November 2010)
IN THE SOUTH GAUTENG
HIGH COURT
JOHANNESBURG
CASE NO
:
A211/09
DATE
: 04/11/2010
REPORTABLE
In
the matter between
NCUBE,
LAWRENCE and two others
APPELLANT
and
STATE
J U D G M E N T
LAMONT J
:
The three appellants who appear before us today appeared as accused
1, 2 and 4 in the Magistrate’s Court.
Accused 3 was
acquitted.
Each of the appellants
was sentenced to 12 years’ imprisonment having being convicted
of the charge of robbery with aggravating
circumstances.
When the matter came
before us the record was incomplete as to the proceedings on
sentence. All that remained of the record
concerning those
proceedings was the sentence imposed by the magistrate in the matter
namely 12 years’ imprisonment.
The three appellants
came to the hearing and at the hearing it was explained to them
through the use of a duly sworn interpreter
of this Court that they
were entitled to participate in the reconstruction of the record
concerning the sentence.
Attempts made by the
state to reconstruct the record including the attempts to access
secondary evidence as to what the record was
had proved
unsuccessful. The only options open to this Court were to
obtain evidence from the appellants as to what the evidence
was which
had been submitted to the magistrate at the time and allow them to
participate by doing so in the reconstruction of the
record as is
contemplated by
S v Gora and another
2010 (1) SACR 159
(WCC).
In
that matter referring to a judgment of Yekiso J in
S v Zenzile
at paragraph 16 it was held that the reconstruction process is part
and parcel of the fair trial process and includes the following:
“
The
accused has been informed of the missing portion of the record; of
the need to have the missing portion of the record reconstructed,
of
his rights to participate in the reconstruction process, his right to
legal representation in such a reconstruction process
and the right
to have the reconstruction process interpreted for him should he
require the services of an interpreter.”
In paragraph 17 it was
held that the reconstruction process must give effect to the
accused’s right to a public trial before
an ordinary court, his
right to be present when being charged as well as his right to
challenge and adduce evidence.
The duty of the
presiding officer once it became apparent that the record was lost
was to take various steps to reconstruct the
record. However
the process should not result in the trampling of the rights of the
accused.
The appellants in this
matter were legally represented, accepted such representation and
together with their representatives participated
in the procedure
which was put in place to establish whether or not the record could
be reconstructed.
That procedure involved,
informing the appellants that the record needed to be reconstructed,
and that it had not been possible
to reconstruct it, each appellant
was requested to state whether or not such appellant was prepared to
and or wished to participate
in the process of reconstruction of the
record by way of revealing the missing evidence which had been led at
the hearing of the
matter and also to provide the evidence which had
been presented should that appellant wish to do so.
As
far as the first appellant is concerned, that appellant indicated
that he did not have anything to say and was not able to furnish
any
evidence which had been led. The second appellant indicated
that he well remembered what had taken place and was able
to and
would participate in the process of reconstruction. The third
appellant’s position on request was identified
as being the
same as the first appellant.
It
appeared to me appropriate then to put to the appellants that this
Court was prepared to consider allowing the appellants seeing
as how
they were present, to provide such evidence which was deficient in
the record and/or as they wished this Court to receive
in relation to
mitigation of sentence.
All
the appellants individually, as well as the legal representatives of
both the state and the appellants indicated that that was
a procedure
with which they agreed. In the result I requested the
appellants to consult with their legal advisor to prepare
a statement
of such mitigating facts as each appellant wished to place before
this Court as and by way of the evidence which would
be led should we
be prepared to receive that evidence.
This Court is entitled to
receive evidence in exceptional circumstances. It appears to us
that the circumstances which served
before me in the present matter
are exceptional.
It
is a relatively simple matter for the mitigating circumstances to be
placed before this Court and in general those circumstances
are not
disputed by the state. It was convenient for this Court to deal
with the matter in its entirety as the record had
been read as far as
conviction was concerned and the case could be dealt with on the
conviction aspect. If the procedure of hearing
the evidence was
followed all the evidence would be before Court. If the procedure was
not followed this would result in a remittal
of the matter to the
Magistrate’s Court with the need to summons the appellants from
the various prisons in which they are
currently resident to the
hearing with the view to placing precisely the same evidence which we
would receive today and which would
not be disputed by the state.
There is substantial waste in the form of time and costs.
It
appeared to me that the provisions of Section 304 (2) (b) read
together with Section 309 (3) of the Criminal Procedure Act of
511977
authorised the hearing of the evidence as did Section 22 of the
Supreme Court Act 59 of 1959.
RAIL COMMUTERS ACTION
GROUP AND OTHERS v TRANSNET LTD t/a METRORAIL AND OTHERS
[2004] ZACC 20
;
2005 (2) SA
359
(CC)
New
evidence is admissible in this Court on appeal, including in motion
proceedings, in terms of that section, 45 which reads:
'22
Powers of Court on hearing of appeals E
The appellate
division or a provincial division, or a local division having appeal
jurisdiction, shall have power –
(a)
on the hearing of an appeal to receive further evidence, either
orally or by deposition before a person appointed by such division,
or to remit the case to the court of first instance, or the court
whose judgment is the subject of the appeal, for further hearing,
with such instructions as regards the taking of further F
evidence or otherwise as to the division concerned seems
necessary;
and
(b)
to confirm, amend or set aside the judgment or order which is the
subject of the appeal and to give any judgment or make any
order
which the circumstances may require.'
[40]
In Lawrence, Chaskalson P referred to this G provision
and held that it is only in exceptional circumstances that
evidence
may be admitted on appeal: 46
'Section 173 of the
1996 Constitution confers on this Court, the Supreme Court of Appeal
and the High Courts an ''inherent power
to protect and regulate their
own process, and to develop the common law, H taking into
account the interests of justice''.
Counsel for the appellants
contended that if the expert evidence on which they rely is not
admissible under Rule 19 or Rule 34,
this Court should exercise its
powers under s 173 of the Constitution to admit it. The appellants do
not, however, have to rely
on s 173, which in any event seems not
2005 (2) SA p388
O'REGAN
J
to
be applicable to this case. This Court has power under its Rules to
A admit new evidence on appeal. 47 The question
is whether that
power should be exercised in the circumstances of the present case.
For the reasons already given this Court should
not, save in
exceptional circumstances, permit disputes of fact or expert opinion
to be raised for the first time on appeal. Such
circumstances have
not been established in the present case.'
(Footnotes
omitted.) B
[41]
The SCA has similarly held that new evidence should be admitted on
appeal under this section only in exceptional circumstances.
48 This
is because on appeal, a court is ordinarily determining the
correctness or otherwise C of an order made by another court,
and the
record from the lower court should determine the answer to that
question. It is accepted however that exceptional circumstances
may
warrant the variation of the rule. Important criteria relevant to
determining whether evidence on appeal should be admitted
were
identified in Colman v Dunbar. 49 Relevant criteria include the need
for finality, the undesirability of permitting a litigant
who
D has been remiss in bringing forth evidence to produce it late
in the day, and the need to avoid prejudice. One
of the most
important criteria was the following:
'The evidence tendered
must be weighty and material and presumably to be believed, and must
be such that if adduced it would be
practically conclusive, for if
not, it would still leave the issue in doubt and the matter would
still lack finality.' 50
E
In
S v Louw, the Appellate Division held also that for new evidence to
be admitted on appeal, some reasonably sufficient explanation
must be
offered to account for the failure to tender the evidence earlier in
the proceedings. 51 F
[42]
In Van Eeden v Van Eeden, 52 the Cape High Court held that it was
well established that the Court's powers as derived from
s 22(a) of
the Supreme Court Act should be exercised sparingly. 53 The Court
held, further, that in that case the additional evidence
related to
facts and circumstances which had arisen after the judgment of the
Court a quo. This raised the question whether it
was competent for
the court, in the G exercise of its power under s 22(a),
to receive such evidence or to authorise
its reception. 54 Comrie J
held that the section did not include any express limitation which
would exclude the reception of the
evidence then sought to be
tendered and that the court exercising appellate jurisdiction had a
H discretion whether
or not to allow the evidence to be
admitted, which discretion should be exercised sparingly and only
in2005 (2) SA p389
O'REGAN
J
special
circumstances. From time to time, he held, cases did arise which
cried A out for the reception of post-judgment
facts. 55
[43]
In my view, this approach is correct. The Court should exercise the
powers conferred by s 22 'sparingly' and further evidence
on appeal
(which does not fall within the terms of Rule 31) should only be
admitted in exceptional circumstances. Such evidence
must be weighty,
material and to be believed. In addition, whether B there
is a reasonable explanation for its late
filing is an important
factor. The existence of a substantial dispute of fact in relation to
it will militate against its being
admitted.
I accordingly put in
place the mechanism by which that evidence would be produced. That
evidence has in fact now been produced to
this Court.
It
appears to me proper that this Court should receive such evidence and
should deal with the matter in its entirety. It is
in the
interests of justice that the entire matter be dealt with in one
hearing and that the appellants be in a position to know
and
understand fully what the outcome of the procedure is immediately.
It seems to me to be wholly against the interests
of justice that
there be a piecemeal decision on conviction and later at some
uncertain future date the question of the sentence
be dealt with.
In the interim the appellants are in limbo in that they do not know
what the position is insofar as sentence
is concerned.
I
would accordingly rule that the evidence of the second appellant be
received both in the form of reconstructing the record and
in the
form of fresh evidence before this Court. The evidence of
accused 1 and 3 is received as fresh evidence before this
Court.
The
receiving of the evidence of the second appellant as part of the
reconstruction process is in my view in accordance with the
formula
considered in Gora’s case and is appropriate. Insofar as
the receiving of the further evidence is concerned,
that is in
accordance with the provisions of the enabling statutes to which I
have referred.
I accordingly rule that
the evidence be received.
Insofar as the appeal is
concerned, the evidence which is required to enable this appeal to be
heard by this Court is before us.
The evidence which we
have received concerning the sentence is the following.
The first appellant is
28 years old, has no previous convictions, is a first offender, is
currently single, but has two children.
He was previously
employed as a taxi driver for his brother. He was employed from
1996 to 2003 and was then unemployed.
The
second appellant is 24 years old, has no previous convictions, is
married with two children. His wife has since died.
He
was employed as a carpenter and was the breadwinner for his family
over the period 1999 to 2003.
The
third appellant is 29 years old, has no previous convictions, is
married. Unfortunately his wife has recently left him.
He
has two children, he was self-employed as a taxi driver and ferried
passengers to Zimbabwe and back. He was in receipt
of sum
R10 000.00 per month and was the breadwinner of his family.
It was submitted
concerning events before the Magistrate with regards to sentence that
the magistrate at the time that he had considered
the matter must
have found substantial and compelling circumstances which were, so it
was submitted, probably the fact that the
appellants are reasonably
young, are first offenders and spent three years awaiting the
finalisation of their trial as well as
the fact that during the
course of the robbery no one was injured and no shots were fired.
The fact that the
magistrate imposed a period of 12 years’ imprisonment is
evidence of the fact that he did find substantial
and compelling
circumstances to exist. Failing that finding he would
have been obliged to have imposed the minimum
sentence namely 15
years.
Those then are the facts
which are before us and which should any further steps be taken in
this matter be inserted and contained
within the appeal record.
Insofar as the
conviction is concerned, it is apparent that there was a bank
robbery. During the course of the bank robbery
a significant
amount of money was stolen. The persons who were called as
witnesses to give evidence as to what precisely
had happened within
the bank and as to precisely how the sum of approximately R138 000.00
had been taken were unable to identify
the assailants.
The only question before
us today is whether or not the appellants are the persons who
perpetrated the crime.
Insofar as the individual
witnesses are concerned the evidence was fully and completely
analysed by the magistrate and I do not
propose to go through each of
the findings which he made.
The principle basis upon
which the conviction rested was the production at the trial of
pictures of the three perpetrators of the
crime. It was common cause
that the pictures were taken at the time the crime was committed and
that the pictures accurately reflect
what happened. Those
pictures were put in evidence through the evidence of one Naude who
is an inspector in the South African
Police Service. They
were all correctly admitted and they correctly reflect what was
photographed at the material time
during the bank robbery.
The persons who appear
on the pictures are the persons who executed the robbery. The
only question is whether or not the identification
of the appellants
as the persons whose features appear upon the pictures is sufficient
to enable a conviction to have taken place.
The expert gave evidence
as to what steps she had taken to analyse the pictures and compare
them with the features of the appellants.
A number of features
in respect of each of the appellants were pointed to by her as
identifying in each particular case beyond
reasonable doubt the
features which were sufficient to identify each particular appellant.
It
must never be forgotten that the function of the expert is not to
decide the case. The function of the expert is to provide
the
Court with the tools to assist it in deciding the case. The
function of the expert is only to assist insofar as the Court
requires assistance with the skills which the Court will use in the
process of comparing the pictures with the appellants.
The
extent to which the opinions advanced by an expert are to be
accepted will depend upon whether, in the judgment of the
Court,
those opinions are founded on logical reasoning or are otherwise
valid
.
See:
Michael and Another v Linksfield Park Clinic
(Pty) Ltd and Another
2001
(3) SA 1188
(SCA) ([2002]
1 All SA
384)
in para [36].
it is important to bear
in mind the distinction between the scientific and the judicial
measures of proof See:
Dingley v The Chief Constable, Strathclyde
Police
2000 SC (HL) 77 at 89D - E (cited with approval by this
Court in
Michael and Another v Linksfield Park Clinic (Pty) Ltd
and Another
2001 (3) SA 1188
(SCA) para G [40] at
1201E - H).
The magistrate in a
lengthy judgment considered all of these issues. Today
submissions are made before us that there are features
which indicate
that his analysis was wrong. For example, there was some
scarring which did not appear.
It must be remembered
that not only did the expert give evidence as to what the expert had
before her, but also that the appellants
appeared in Court. The
appellants were seen by the magistrate over the period of the trial
and he was able not only to rely
on the evidence given by the expert,
but also upon his own observations which he had made during the
course of the trial.
In
my view the analysis made by the magistrate was proper. I have
considered the evidence which was before him in detail and
it appears
to me that the evidence which he made correctly identified each
picture of a perpetrator with each of the appellants.
In the
circumstances it appears to me that the magistrate properly convicted
each of the appellants of the offence. He had
available to him
ample evidence of identification and using that evidence properly
analysed and found them to have been present
at the scene and to have
performed the acts which are described. In my view the appeal
against conviction should fail.
It
remains to consider the question of sentence. The appellants
perpetrated a robbery which had clearly been planned.
They were armed and although no shots were fired they were involved
in a seriously considered activity with a view to obtaining
the booty
namely sum R138 000.00. In their activities they had no
regard for the threat to life in limb which existed
to the persons
who were faced with these men who were armed with firearms.
While no shots were fired there was the potential
for shots to have
been fired. These shots would have been fired with a view to
injuring people in return for the opportunity
to obtain money.
The
appellants would have had in committing this crime no concern for the
life or limb of the persons who were on the receiving
end of the
violence.
Their personal
circumstances have been set out previously in this judgment and I
take those personal circumstances into account.
The
personal circumstances of the appellants must be weighed against the
needs of society to impose deterrents for persons who
might commit
crimes of this nature as well as the nature of the crime, the well
known triad. See in this regard for example:
DIRECTOR OF PUBLIC
PROSECUTIONS, KWAZULU-NATAL v P
2006 (1) SACR 243
(SCA)
“
[13]
The so-called traditional approach to sentencing required (and still
does) the sentencing court to consider the 'triad consisting
of
the crime, the offender and the interests of society' (S v Zinn 10 ).
In the assessment of an appropriate sentence, the
court is required
to have regard to the main purposes of punishment, namely, the
deterrent, preventive, reformative and the retributive
aspects
thereof (S v Khumalo and Others 11 ). To these elements must be added
the quality of mercy, as distinct from mere sympathy
for the
offender.”
In
S v Holder
1979 (2) SA 70
(A) at 75A, 81B it was held “Daar
moet gestreef word na 'n gepaste vonnis, volgens die eise van die tyd
en 'n gepaste vonnis
sal altyd 'n vonnis wees wat gebaseer is op 'n
gebalanseerde oorweging van die drie elemente . . . Die gemeenskap
verwag
dat 'n ernstige misdaad gestraf sal word, maar verwag ook
tewens dat strafversagtende omstandighede in ag geneem moet word en
dat
die beskuldigde se besondere posisie deeglike oorweging verdien.
Dit, meen ek, is strafoplegging volgens die eise van ons tyd.”
In
S v Rabie
1975 (4) SA 855
(A) at 865G-866B, Corbett JA held:
'In his Commentary on
the Pandects, 5.1.57, Voet writes of the need for Judges to be free
from hatred, friendship, anger, pity and
avarice. In a note on this
section in his Supplement to the Commentary (published in 1973) Van
der Linden makes interesting reference
to the views of a number of
writers, classical and otherwise, as to the proper judicial attitude
of mind towards punishment. (A
translation of this particular note
conveniently appears in the Selective Voet - Gane's translation vol 2
at 72.) The note (quoting
Gane's translation) commences:
"It is
true, as Cicero says in his work on Duties, bk 1 ch 25, that anger
should be especially kept down in punishing, because
he who comes to
punishment in wrath will never hold that middle course I
which lies between the too much and the too
little. It is true also
that it would be desirable that they who hold the office of Judges
should be like the laws, which approach
punishment not in a spirit of
anger but in one of equity."
Van der Linden
further notes that among the most harmful faults of Judges is, inter
alia, a striving after severity (severitatis
affectatio). Apropos
this, a passage is quoted from Seneca on Mercy, including the
declaration: "Severity I keep concealed,
mercy ever ready'
(severitatem J abditam, clementiam in promptu habeo). Van
der Linden concludes with a warning that
misplaced pity (intempestiva
misericordia) is no less to be censured.Despite their antiquity these
wise remarks contain much that
is relevant to contemporary
circumstances. (They were referred to, with approval, in S v Zinn
(supra)
1969 (2) SA 537
(A) at 541.) A judicial officer should not
approach punishment in a spirit of anger because, being human, that
will make it difficult
for him to achieve that delicate balance
between the crime, the criminal and the interests of society which
his task and the objects
of punishment demand of him. Nor should he
strive after severity; nor, on the other hand, surrender to misplaced
pity. While not
flinching from firmness, where firmness is called
for, he should approach his task with a humane and compassionate
understanding
of human frailties and the pressures of society which
contribute to criminality. It is in the context of this attitude of
mind
that I see mercy as an element in the determination of the
appropriate punishment in the light of all the circumstances of the
particular case.”
These conducts of the
appellants was deliberate and calculated, and driven by greed not
need
See:
S v M (CENTRE FOR
CHILD LAW AS AMICUS CURIAE)
[2007] ZACC 18
;
2007 (2) SACR 539
(CC)
The crime is an
extremely serious one and is recognised to be such by reason of
inter
alia
it, the obvious features of the crime, but also the fact
that a minimum period of imprisonment has been considered appropriate
by the law maker, namely 15 years. That is indicative of the
order of the period of imprisonment which the public expects
courts
to impose upon persons who commit offences of this nature.
During the course of the
crime itself, while it is true there was no injury to any person,
there was as I have set out earlier the
potential of such injury.
The motive for the crime was to obtain money by the method
potentially of injuring persons and
life and limb. So much for
the crime.
The needs of society are
such that frequently perpetrated crimes and particularly serious
crimes of this nature must be met with
an appropriate sentence of a
sufficiently severe nature to deter other persons from becoming
embroiled in this type of activity.
All too often this
Court has before it evidence of the effects of robberies where
firearms have been used some, persons have been
murdered during the
course of robberies and others seriously injured.
This type of offence is a
prevalent one in the present society and steps are being taken to
stamp it out, hence the minimum sentence
legislation and the serious
efforts made by the police force of this country to arrest, detain
and deal with perpetrators.
The effect of a lengthy
period of imprisonment also has the added salutary purpose of
removing the persons from society, thereby
preventing them from
committing further crimes.
At the same time one
must have regard to the need not to become enraged by the activities
of the appellants and to with measured
control and a degree of mercy
consider the punishment which is to be imposed. I do this, the
magistrate similarly did this.
It appears to me that the
magistrate who found there to be substantial and compelling
circumstances which may well have included
the factors referred to
earlier in this judgment including in particular the fact that the
appellants were incarcerated for a significant
period of time prior
to the sentence having being imposed and that such period of
detention is not part of the punishment for the
offence.
It
weighs heavily on my mind that these are relatively young men, 28
years old, 24 years old, 29 years old who previously have led
extemporary lives and who appear to have been employed and been
acting as proper members of society. This notwithstanding
it
appears to me that the only appropriate sentence is a custodial
period. It appears to me further that 12 years as was
imposed
by the magistrate is a proper period of imprisonment.
As
this Court has received evidence concerning the features of
mitigation both as part of the reconstruction of the record in the
case of appellant 2 and as fresh evidence in the case of the other
appellants this Court is in a position to determine whether
or not
the sentence imposed by the magistrate is one which it itself would
have imposed. As I have indicated earlier, that
sentence is one
which I would have imposed
In
the circumstances it appears to me that the proper order is that the
appeal against sentence be dismissed. That leaving
the sentence
imposed by the magistrate in place being the sentence which this
Court would have imposed and which I have no doubt
had the record
been complete in this regard would have found had been correctly
imposed there being no sense of shock in the fact
that less than the
minimum sentence was imposed.
I would accordingly
dismiss the appeal against both the conviction and the sentence and
would allow the evidence to be given.
I
propose the following order:
1. The evidence which was
placed before this Court by the three appellants be received in the
case of the second appellant both
as fresh evidence and as part of
the reconstruction of the record and in respect of the other
appellants as fresh evidence.
I
would dismiss the appeal against both conviction and sentence.
LAMONT J
JUDGE OF THE SOUTH
GAUTENG HIGH COURT,
JOHANNESBURG
I
agree
MAKUME J
JUDGE OF THE SOUTH
GAUTENG HIGH COURT,
JOHANNESBURG
Counsel for Appellant:
Adv Cosyn,
Counsel
for Respondent: Adv Zitha.