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[2022] ZAGPJHC 144
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Loots v S (A54/2020) [2022] ZAGPJHC 144 (15 March 2022)

IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A54/2020
DPP
REF NO: 10/2/5/1 - 2020/045
DATE
OF APPEAL: 7 MARCH 2022
REPORTABLE:
YES
/ NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED.
15/3/2022
In
the matter between:
LOOTS,
JUAN RYAN
Appellant
and
THE
STATE
Respondent
JUDGMENT
SIDWELLAJ:
[1]
This is an appeal against sentence only.
[2]
The appellant was arrested for the
possession and distribution of child pornography in contravention of
the Films and Publications
Act no 65 of 1996 (‘the Act’).
The section of the Act criminalising possession of child pornography
was section 24B(1)(a),
and the section criminalising distribution of
child pornography was section 24B(1)(d).
[3]
The appellant appeared before the Regional
Magistrate sitting in Johannesburg and a charge of possessing 4489
contents of child
pornography in contravention of the said section
24B(1)(a) was put to him. The appellant pleaded guilty to this charge
and submitted
a plea statement (‘statement’), in terms of
section 112(2) of the Criminal Procedure Act no 51 of 1977 (‘the
CPA’), to the court. In this statement, as amended, the
appellant admitted all the elements of not only possessing child
pornography, as charged, but all the elements of distributing child
pornography in contravention of the said section 24B(1)(d).
The
appellant stated that he was pleading guilty to distribution of child
pornography; however, no charge of distribution was ever
put to him.
[4]
The prosecutor accepted the plea and the
plea statement.
[5]
The Magistrate convicted the appellant of
possession of 4489 contents of child pornography in contravention of
section 24B(1)(a)
and of distribution of four (4) contents of child
pornography in contravention of section 24B(1)(d).
[6]
On 28 March 2019 the appellant was
sentenced to ten (10) years’ imprisonment for the possession
and to five (5) years’
imprisonment for the distribution. The
Magistrate ordered that the two (2) sentences run concurrently so
that the effective sentence
was ten 10 years’ imprisonment.
The
charges
[7]
Before dealing with the merits of the
appeal against sentence the procedure adopted in this case at the
plea stage of the trial
must be considered. As stated above, only one
charge, that of possession of child pornography, was put to the
appellant. No other
charge and, in particular, no charge of
distributing child pornography appears in the record.
[8]
In his plea statement, the appellant set
out the facts on which his plea of guilty to distribution was based.
The appellant admitted
the stated facts. They were that the appellant
had distributed 65 contents of child pornography on a social media
account on Instagram
during 2016, six (6) months before his arrest in
this case.
[9]
The charge sheet in the record, form J15,
states that the appellant was arrested on 24 August 2017, and refers
to Annexure A thereto
for the charge against the appellant. Annexure
A alleges that the appellant was guilty of contravening section
24B(1)(a) of the
Act, in that he possessed 4489 contents of child
pornography, as tabulated, on 24 August 2017 at Elandspark. This was
the charge
put to him at his trial.
[10]
The other references in the charge sheet to
the charge against the appellant are:
[11]
At the appellant’s first appearance
in court on 25 August 2017, the prosecutor told the court that the
charge was possession
and distribution of child pornography.
[12]
At the postponement on 8 May 2018, the
appellant’s attorney told the court that the appellant did not
dispute possession of
the material.
[13]
At the postponement on 16 July 2018, the
‘charge sheet’ was handed to the defence and the
prosecutor stated that the
State would proceed on ‘all charge’.
[14]
Whilst it is not clear from the record if
this was a reference to the possession of 4489 contents of child
pornography or a reference
to charges of both possession and
distribution, counsel for the State at the hearing before us informed
the Court that the State
never intended to prefer a charge of
distribution against the appellant as the State could not prove it;
furthermore, that it would
have been unethical for the State to
charge the appellant with distribution based on the appellant’s
guilty plea.
[15]
The full charge sheet with all the
appearances appears in the record but it does not contain any charge
of distribution or any reference
to distribution of child
pornography, other than that stated by the prosecutor in court at the
first appearance on 25 August 2017.
[16]
In his judgement on conviction, the
Magistrate stated that the appellant was charged with a contravention
of section 24B(1) of the
Act, in that on 24 August 2017 and at
Elandspark the appellant possessed child pornography. He further
stated that this charge
was put to the appellant and he pleaded
guilty to ‘count 1 to 4489’. The Magistrate was satisfied
on the plea statement
that the appellant admitted all the allegations
in the ‘charge sheet’ and he convicted the appellant of
contravening
section 24B(1)(a) and (d) of the Act, to wit, possession
of 4489 contents of child pornography in terms of section 24B(1)(a),
and
distribution of four (4) images in terms of section 24B(1)(d) of
the Act as reflected in counts 2222, 2247, 2270 and 2302.
[17]
It was incumbent on the Magistrate to
ensure that the admissions in the plea statement corresponded with
the allegations in the
charge. The Magistrate might put questions to
the accused to resolve discrepancies between the two documents. In
this case, the
Magistrate was unable to do so, in respect of the
allegation of distribution, as there was no such charge. On record
the Magistrate
did not raise with the State or the defence the
question of the existence of a formulated charge of distribution and
he did not
establish what the alleged number of contents was in any
actual charge, four (4) or 65.
[18]
The appellant stated in his plea statement
that he was pleading guilty to distribution of 65 contents of child
pornography. The
appellant acknowledged that at the time of drafting
the charge these 65 contents were not available to the State and
therefore
the State only charged him with distribution of the
contents in counts 2222, 2247, 2270 and 2302.
[19]
The prosecutor was granted a number of
postponements to draft the charges. The completed charge sheet was
handed to the appellant
on 16 July 2018. The appellant had
approximately six (6) weeks to examine the charge sheet, from 16 July
2018 to the date of his
plea on 31 August 2018. In the event of a
formulated charge in the charge sheet of distribution of the four (4)
contents, it is
surprising that he admitted that he was guilty of
distributing 65 contents in his plea statement. This was in the
appellant’s
initial plea statement. In his amended statement,
the appellant again pleaded guilty to distribution of 65 contents and
he added
that the State was only able to charge the four (4)
contents, as stated above. He also stated that the State was
prosecuting him
for the 65 contents.
[20]
It cannot be inferred from the plea
statement, as amended, that the appellant had had sight of or had
knowledge of a formulated
charge of distribution of the four (4)
contents before he pleaded. In any event, it appears from the record
that there was no such
charge. The appellant’s right to a fair
trial in terms of section 35(3) of the Constitution, Act no 108 of
1996, included
the right to know the details of such distribution
charge against him. The appellant could decide thereafter what his
response
to the charge would be.
[21]
The appellant was entitled to deal in his
plea statement with only the facts charged and to decline to disclose
or admit anything
more in respect of criminal conduct committed by
him but not alleged in the charge. Moreover, it was not for the
appellant to attempt
to state in his plea statement the charge that
he thought the State was preferring against him or to plead to a
non-existent charge,
on the basis of what he believed the State was
prosecuting him for. Ms Ryan and Mr Maluleke were agreed that what
the appellant
said in his plea statement regarding distribution could
not cure the irregularity in the proceedings and the conviction and
sentence
in respect of the distribution fell to be set aside.
[22]
It
is clear from the CPA that a charge must be in writing. The charge
against an accused is identified in the charge sheet.
[1]
It is at the instance of the State that the accused is brought into
court to answer criminal charges preferred against him by the
State.
Therefore, the charges must be put by the prosecutor and not anyone
else.
[2]
[23]
In
S
v Sithole and Others,
[3]
the
court stated at 230 c-d:
‘
To
convict an accused on a charge he was not requested to plead to is in
my view such a departure from the rules and principles
governing the
conduct of criminal proceedings that it cannot be countenanced. It is
further a fundamental right in terms s 35(3)(a)
of our
Constitution...that an accused has a right to a fair trial which
includes the right to be informed of the charge with sufficient

detail to answer it.’
[24]
In
Sithole
there were multiple charges. Some were put to the accused and some
were not. The accused did not plead to the charges that were
not put.
Nevertheless, the court convicted the accused on the charges that
were not put to him. Those convictions were set aside
on review.
[25]
There
can be no verdict unless the accused has pleaded to the charge.
Further, a conviction can only occur in respect of a charge
on which
the accused is indicted.
[4]
[26]
Given that there was no charge of
distribution of child pornography in this matter, the plea of guilty
to that offence by the appellant
was a nullity. There being no charge
and no plea, the conviction of distribution was irregular and
amounted to a failure of justice.
Accordingly, in terms of section
304(4) of the CPA, the conviction and sentence for the distribution
of child pornography are set
aside.
The
appeal against sentence
[27]
The appellant was sentenced to a term of
imprisonment of ten (10) years for possession of child pornography in
contravention of
section 24B(1)(a) of the Act.
[28]
The appellant’s representative, Mr
Maluleke, argued that the sentence imposed by the Magistrate was
harsh and induced a sense
of shock regard being had to the sentences
imposed in similar decided cases in South Africa, that the Magistrate
failed to take
the personal circumstances of the appellant into
account, and that the Magistrate failed to take cognisance of the
pre-sentencing
reports by the social worker and the correctional
services officer, who also testified in mitigation, and the evidence
of the appellant’s
therapist.
[29]
Mr Maluleke contended that a wholly
suspended sentence of imprisonment, alternatively, a sentence of
correctional supervision in
terms of section 276(1)(h) of the CPA,
further alternatively, a sentence of less than ten (10) years’
imprisonment should
have been imposed by the Magistrate. In addition,
Mr Maluleke argued that the appellant was not a danger to society and
that he
would suffer punishment for his crimes as a result of his
career being hampered by his criminal record.
[30]
Counsel
for the State argued that the sentence imposed by the Magistrate was
appropriate and that the appeal should be dismissed.
The Magistrate
had taken the personal circumstances of the appellant into account as
well as the evidence in mitigation. There
was no misdirection by the
Magistrate who, in assessing all the information before him, attached
due weight to all the circumstances.
The gravity of the offences
committed by the appellant and the worldwide prevalence of sexual
crimes against children called for
a response from South African
courts that was consistent with the approach adopted in foreign
jurisdictions, and that was overdue
in South Africa. The State’s
counsel referred to the
Director
of Public Prosecutions North Gauteng v Alberts
[5]
and
Essop
v State
[6]
in support of its argument.
[31]
Sentencing
is pre-eminently a matter within the discretion of the trial court
and a court of appeal will not lightly interfere with
the exercise of
that discretion. The essential inquiry is not whether the sentence
was right or wrong but whether the sentencing
court exercised its
discretion properly and judicially.
[7]
[32]
Where
the disparity between the sentence imposed and the sentence that the
appeal court would have imposed is so marked that the
sentence can be
described as disturbingly inappropriate, an appeal court will
interfere.
[8]
[33]
The Magistrate in this case took into
account the personal circumstances and the childhood history of the
appellant as well as the
evidence presented by the defence in
mitigation.
[34]
The Magistrate had due regard to the
purposes of punishment and the constitutional rights of children as
well as the rights of the
appellant. The court
a
quo
was mindful not to over-emphasize
any interest in the case against another and to strike a balance
between the interests of society
and the interests of the appellant.
[35]
The Magistrate noted that the children in
the pornographic contents possessed by the appellant were apparently
mostly under the
age of eight (8) years, and that legislation has
been enacted in this country to protect these most vulnerable members
of society
from crimes such as those committed by the appellant.
[36]
The Magistrate observed that the possession
of child pornography promoted the production thereof and that the
appellant had participated
in an industry that fosters the sexual
abuse of children. It was appropriate that the victims of the
appellant’s crimes receive
some recognition in the sentence to
be imposed. The remarks of the Magistrate regarding the disturbing
nature of the contents in
this case were not out of place and I find
that the Magistrate’s treatment of the question of sentence was
not clouded by
emotion.
[37]
The
Magistrate considered the various sentencing options. The court
a
quo
found that a fine or a suspended sentence would not properly reflect
the gravity of the offences or serve the purpose of sentence.

Additionally, the court
a
quo
found
that correctional supervision in terms of sections 276(1)(h) or (i)
of the CPA would not serve the aims of deterrence or reform

adequately and would send the wrong message to the community
regarding child pornography. The Magistrate in this matter did not

misdirect himself in finding that a non-custodial sentence to enable
the appellant to receive treatment for his pornography addiction

would focus unduly on the rehabilitation of the appellant and would
reduce the retributive and deterrent elements of the punishment,
to
the extent that it would bring the administration of justice into
disrepute.
[9]
[38]
The
court
a
quo
concluded
that direct imprisonment would properly address all the aims of
punishment. In coming to this conclusion, the Magistrate
considered
the totality of the information before him and I find that he
evaluated it correctly. He did not misstate any of the
facts or the
law. The exercise of the court
a
quo
’s
discretion was not vitiated by any misdirection and the sentence
imposed was not disturbingly inappropriate. It was not
a misdirection
to apply to this case what was stated in
Essop
[10]
quoting
the author Iyavar Chetty in ‘The Trivialisation of Child
Pornography Crimes in South African Courts’, and in
following
Alberts
[11]
regarding the unsuitability of non-custodial sentences in child
pornography cases. Nor did the Magistrate accord undue weight to
what
was stated in those authorities. Accordingly, the sentence imposed by
the court
a
quo
must
be and is confirmed by this Court.
[39]
In the result the following order is made:
1.
The appeal against sentence for possession
of child pornography in contravention of
section 24B(1)(a)
of the
Films and Publications Act 65 of 1996
is dismissed.
2.
The conviction of distribution of child
pornography in contravention of
section 24B(1)(d)
of the
Films and
Publications Act 65 of 1996
, and the sentence imposed therefor are
set aside.
3.
The appellant
is ordered to submit
himself to the South African Police Service, at Moffat Park Police
Station or Johannesburg Central Police Station,
within five calendar
days from the date of this order, for the Station Commander or other
officer in charge of that police station
to ensure that the appellant
is immediately delivered to a correctional centre to serve the
sentence imposed in the Regional Court,
Johannesburg on 28 March
2019.
4.
The bail of the appellant pending appeal is cancelled. The
bail money paid by or on behalf of the appellant is payable to the
depositor.
SIDWELL
AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
I
agree.
CRUTCHFIELD
J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties / their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The
date of the
judgment is deemed to be15 March 2022.
ATTORNEY
FOR THE APPELLANT:
Mr Maluleke.
INSTRUCTED
BY:

Maluleke Attorneys.
COUNSEL
FOR THERESPONDENT:
Ms C Ryan.
INSTRUCTED
BY:

National Director of Public Prosecutions.
DATE
OF THE APPEAL:

15 March 2022
DATE
OF JUDGMENT:

11 March 2022
[1]
S
v Mandlazi
GP case no A765/2016, 22 May 2018 at [11].
[2]
S
v ZW
2015
(2) SACR 483
ECG at [41(c)].
[3]
S
v Sithole and Others
1999 (1) SACR 227
T
(‘Sithole’).
[4]
S
v Bam
2020 (2) SACR 584
WCC at [54].
[5]
Director
of Public Prosecutions North Gauteng v Alberts
2016 (2) SACR 419
GP.
[6]
Essop
v State
(Case no 432/2020)
[2021] ZASCA 66
(‘
Essop
’).
[7]
R
v S
1958
(3) SA 102
AD at 104 B;
S
v Pillay
1977
(4) SA 531
AD at 535 E.
[8]
S
v Malgas
2001
(1) SACR 469
SCA at [12].
[9]
S
v AR
2017
(2) SACR 402
WCC at [50] – [52].
[10]
Note
6 above.
[11]
Note
5 above.