About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2014
>>
[2014] ZASCA 191
|
|
Fielies v S (851/2013) [2014] ZASCA 191 (28 November 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 851/2013
Not
Reportable
In
the matter between
DENVOR
PAUL
FIELIES
................................................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Neutral
citation:
Fielies v The State
(851/2013)
[2014] ZASCA 191
(28
November 2014)
Coram:
Bosielo, Majiedt and Willis JJA
Heard:
11 November 2014
Delivered:
28 November 2014
Summary
:
Criminal appeal against sentence – appellant convicted on his
plea of guilty of 39 counts of corruption involving R649 827
–
sentenced to imprisonment for 5 years with 2 years suspended for 5
years on suitable conditions – failure by the
trial court to
call a probation officer – its effect – did the trial
court have sufficient information about the appellant
to enable it to
impose an appropriate sentence.
ORDER
On
appeal from:
Western Cape High Court,
Cape Town (Griesel J and Boqwana AJ sitting as a court of appeal):
The
appeal is dismissed.
JUDGMENT
Bosielo
JA (Majiedt JA concurring):
[1]
The appellant was convicted on his plea of guilty by the regional
magistrate sitting in the Specialized Commercial Crimes Court
(SCCC),
Bellville on 39 counts of corruption in terms of s 4(1) of the
Prevention and Combating of Corruption Activities Act 12
of 2004
(“the PCCA”) on 25 October 2012. All the counts were
taken together for purposes of sentence and the appellant
was
sentenced to a fine of R60 000, payment whereof was deferred in
terms of s 297(5) of the Criminal Procedure Act 51 of
1977 (CPA) to
31 December 2010, in default whereof he was to undergo imprisonment
for 2 years. In addition, he was sentenced to
12 months imprisonment,
suspended for five years on suitable conditions.
[2]
Aggrieved by this sentence, the respondent sought and obtained leave
to appeal against the sentence to the Western Cape High
Court in
terms of s 310A of the CPA on the basis that, given the nature and
seriousness of the offences for which the appellant
was convicted,
the sentence imposed was disturbingly lenient and inappropriate.
[3]
On appeal, the high court held that the sentence imposed by the
regional magistrate was disturbingly inappropriate. It set the
sentence aside and, instead imposed a sentence of imprisonment for 5
years with 2 years suspended for 5 years on suitable conditions,
all
39 counts having been considered together for purposes of sentence.
Aggrieved by this sentence, the appellant obtained leave
from the
court below to appeal against the sentence. Hence this appeal.
[4]
I interpose to state that before the appeal was heard before us the
appellant’s counsel objected to the filing of the
transcript of
the parties’ oral submissions on sentence in the SCCC on two
grounds. Firstly, that it is not a proper transcript
as it was not
reconstructed in terms of the rules of court and, second, that the
transcript was not placed properly before us.
He sought to persuade
us not to have recourse thereto.
[5]
In response, the respondent’s counsel submitted that the
transcript is not a reconstruction of the record but a transcript
of
the submissions recorded during the trial. He submitted further that
as the transcript was certified as a true and correct transcription
of the proceedings in the SCCC by the transcriber, Mrs S Truter of
Legal Transcriptions (Western Cape), it was properly admitted.
It
suffices to state that the appellant’s counsel subsequently
abandoned all attempts to impugn the correctness and authenticity
of
the transcript.
[6]
I find it necessary to state that in terms of the rules of court it
is the appellant’s duty to ensure that a proper and
complete
record is filed. He failed to do that. It is the respondent who filed
the transcript of the proceedings in the regional
court to complete
what was an incomplete record. As alluded to already, the transcript
was certified as a true and correct transcription
of the proceedings
in the SCCC by the transcriber. In any event this objection was only
raised exparte before us. To my mind, this
is nothing but a
desperate, albeit ill-fated attempt by the appellant to save his skin
– a proverbial clutching at straws
by a sinking man. It follows
that the objection has no merit.
[7]
On appeal before us, the appellant’s counsel restricted his
attack against the sentence to the failure of the trial court
to call
a probation officer to testify. It was the appellant’s sole
contention that the trial court misdirected itself by
proceeding to
sentence the appellant when it did not have all the relevant facts to
sentence. Based on this it was contended further
that as a result the
trial court was denied the opportunity to have an understanding and
appreciation of the appellant, and in
particular what led him to
commit this series of crimes over a period of approximately 2 years.
The high-water mark of the appellant’s
contention is that this
failure ineluctably led to the trial court failing to explore the
option of a non-custodial sentence for
the appellant.
[8]
In response to questions from one member of the Bench, the
appellant’s counsel submitted that consideration should have
been given to the imposition of a sentence in terms of s 276A(1)(
i
)
of the CPA.
[9]
The respondent’s counsel countered by submitting that the
appeal court took all the facts and circumstances relevant to
sentencing into account in considering an appropriate sentence for
the appellant. The gravamen of the contention by the respondent’s
counsel is that, given the nature and seriousness, the fact that the
charge consists of 39 separate counts committed over a long
time and
its impact on society in general including its prevalence, that a
non-custodial sentence in terms of s 276A(1)(
i
)
would not be appropriate as it would fail to reflect the seriousness
of the offence and society’s abhorrence thereof.
[10]
I turn to consider the provisions of s 276A(1)(
i
) which reads:
‘
[2]
Punishment shall, subject to the provisions of
section 77
of the
Child Justice Act, 2008
, only be imposed under
section 276
(1)(
i
)
–
(
a
) If the
court is of the opinion that the offence justifies the imposing of
imprisonment, with or without the option of a fine,
for a period not
exceeding five years; and
(
b
) for a
fixed period not exceeding five years.
[Sub-s.
(2) submitted by
s 99(1)
of Act 75 of 2008 and amended by s 9(
b
)
of Act 42 of 2013.]’
[11]
It should be clear that s 276A(1)(
i
)
does not require a probation officer’s report before a court
can sentence an accused. It is s 276A(1)(
h
)
which mandates a sentencing court in peremptory terms to secure the
report of a probation officer before sentencing an accused
person. It
follows that the exclusion of the requirement for a probation
officer’s report before sentencing in s 276A(1)(
i
)
is not fortuitous. To my mind, it is reasonable to conclude on the
maxim
alterius inclusio
alterius
that this was a conscious decision by the Legislature. However, this
does not preclude a sentencing court from invoking s 276A(1)(
i
)
when the facts of the case requires him or her to do so. This is not
such a case. It follows that any reliance on s 276A(1)(
i
)
by the appellant is misplaced.
[12]
In any event, we have had the benefit of the transcript of the
proceedings. It shows clearly that all of the appellant’s
personal circumstances relevant to sentence were placed before the
court. As a result both the regional magistrate and the high
court
had a complete picture of the appellant and his family, his
scholastic career, his employment history, his salary and his
family
commitment, including the position he occupied at the Hessequa
Municipality when these offences were committed. In addition,
the
appellant disclosed the modus operandi and the amounts involved in
the 39 counts including his personal benefit amounting to
R39 000.
The appellant’s counsel was at pains to point out any relevant
facts which the probation officer could put
before the court in
addition to what was placed before the court already. To my mind,
there was no need for any further reports.
It follows that this
contention is devoid of any merits.
[13]
When asked if he was relying on any misdirection regarding sentence,
the appellant’s counsel answered in the negative.
Given this
response, the question to be answered is whether in the absence of
any misdirection by the court below, it is permissible
for this
Court, sitting as a court of appeal to interfere with a sentence
which has been properly imposed by a court exercising
its discretion.
[14]
This Court reiterated the salutary approach by an appellate court in
an appeal on sentence as follows in
S v Malgas
2001 (1) SACR
469
(SCA) at 478D-E:
‘…
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court, and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court….’
The
learned judge concludes as follows at p478I-479A:
‘…
The
tests for interference with sentences on appeal were evolved in order
to avoid subverting basic principles that are fundamental
in our law
of criminal procedure, namely, that the imposition of sentence is the
prerogative of the trial court for good reason
and that it is not for
appellate courts to interfere with that exercise of discretion unless
it is convincingly shown that it has
not been properly exercised….’
[15]
It should be clear from
Malgas
(supra) that the powers of a court of appeal to interfere in a
sentence imposed by a trial court are clearly circumscribed. This
is
intended to avoid an erosion if not a usurpation by the appellate
court of the sentencing discretion which resorts pre-eminently
with
the sentencing court. See
S v Pieters
1987 (3) SA 717
(A);
S v Kibido
1998 3 All SA 72
(A);
S v Botha
1998 (2) SACR 206
(SCA) and
S v
Kgosimore
1999 (2) SACR 238
(SCA) and
recently
S v Barnard
2004 (1) SACR 191
(SCA). It follows that this court is not at large
to interfere with the sentence imposed by the appeal court.
[16]
The appeal is dismissed.
_________________
L
O BOSIELO
JUDGE
OF APPEAL
Willis
JA (Dissenting):
[17]
My respectful point of departure from the judgment of Bosielo JA
concerns the question of the relevance and the potential application
of s 276A(1)(
i
)
of the CPA.
[18]
In the judgment of the high court, Boqwana AJ said:
‘
In
the light of these factors my view is that the sentencing magistrate
erred by not imposing an effective term of imprisonment
in these
circumstances. The sentence he imposed was too lenient and not in
keeping with the general sentencing approach followed
by the courts
in white collar crimes. My view is that he sentence is disturbingly
inappropriate warranting this Court’s interference
by
substituting an unsuspended period of imprisonment for the sentence
imposed by the magistrate.’
With
all of this I agree but nowhere is any mention made of the provisions
of s 276A(1)(
i
)
of the CPA. Where the sentence of imprisonment does not exceed five
years, and the court has directed that the provisions of this
section
are to apply, a prisoner may be placed under correctional supervision
in the discretion of the Commissioner of Correctional
Services after
having served one sixth of his sentence.
[19]
A number of decisions in this court have made it plain that where a
sentence of less than five years is to be imposed, the
provisions of
s 276A(1)(
i
)
should always be in the foreground, precisely because the judicial
officer has considered that a custodial sentence is essential
but is
also of the view that a lengthy period of imprisonment is
inappropriate. In these judgments it has also been made plain
that,
where sentence in excess of five years’ imprisonment is
not called for and the sentencing court fails to consider
the
application of the provisions of s 276A(1)(
i
),
the court of appeal is obliged to intervene.
[20]
Ever since
S v R
,
which was endorsed by the Constitutional Court in
S
v M
(
Centre
for Child Law
as
Amicus
Curiae
), the criminological
jurisprudence underlying the necessity for considering provisions
such as those contained in s 276A(1)(
i
)
has been trite: the sentence retains its punitive character, will
serve both as a general and specific deterrent, promotes
rehabilitation
and strikes a balance between the interests of the
offender and society. As was said by this court in
S
v Truyens
, it is important to bear in
mind that early release from custody under correctional supervision
will occur only where the circumstances
of the offender warrant it.
[21]
I endorse what Bosielo JA has said about corruption being an evil
that must be combatted. I do not agree that five years’
imprisonment, unalleviated by the provisions of s 276A(1)(
i
)
is required in order to do so effectively. I come to this conclusion
for a number of reasons: (i) a conviction such as this will,
in all
probability, destroy the prospects of his being employed in a similar
position, with the privilege of receiving a commensurate
salary –
a massive deterrent for others; (ii) a thorough revision of tender
procedures and criteria in our country would
achieve the desired
results almost immediately; and (iii) education sets us free and
education that the economic consequences of
corruption are such that
the primary victims thereof are the poor – every rand that is
diverted into a corrupt official’s
pocket is a rand that could
be spent on the provision of social services elsewhere – will
do more good for society than packing
our prisons with those who
think that individual acts of corruption are largely inconsequential.
[22]
Section 12 of our Constitution enshrines the freedom of everyone.
Freedom is indivisible: whenever anyone loses his or her
freedom, we
all lose a little of ours too. A truly free society would be one in
which there were no prisons at all. The necessity
for prisons is a
reminder that collectively we, as a society, have fallen short of our
own potential.
[23]
Johannes Voet has drawn our attention to the fact that, as long ago
as the Roman republic, Cicero cautioned against judges
having
‘misplaced pity’ for offenders. This expression has
perhaps been immortalised, among South African lawyers,
by Holmes JA
in
S v Rabie
,
when he recast it as ‘maudlin sympathy’. Nevertheless, as
Schreiner JA said in
R v Karg
,
‘righteous anger should not becloud judgment.’ There must
always be a degree of sorrow, if not reluctance, when a
judge
deprives a person of his or her freedom.
[24]
In my opinion, the overall circumstances of this case cry out for the
provisions of s 276A(1)(
i
)
to apply. If I understood counsel for the state correctly, when I put
it to him that an order to this effect should be made, he
had no
serious difficulties with the proposition. In my opinion, the appeal
should have been upheld to the limited extent that
the provisions of
s 276A(1)(
i
)
were made to apply.
________________
NP WILLIS
JUDGE
OF APPEAL
Appearances:
For
Appellant : J Engelbrecht SC (with him SS Green)
Instructed
by:
T Swartz Attorneys;
Cape Town
Symington
& De Kok, Bloemfontein
For
Respondent : JA Agulhas
Instructed
by:
Director
of Public Prosecutions; Cape Town
Director
of Public Prosecutions, Bloemfontein