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[2013] ZASCA 90
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Malgas and Others v S (703/2012) [2013] ZASCA 90; 2013 (2) SACR 343 (SCA) (31 May 2013)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA JUDGMENT
Case No: 703/2012
Reportable
In
the matter between:
HENRY
MALGAS
..................................................................................
First
Appellant
SHON WILLIAMS
.............................................................................
Second
Appellant
JOHAN BEYERS
.................................................................................
Third
Appellant
ANDY JANSEN
..................................................................................
Fourth
Appellant
and
THE
STATE
...............................................................................................
Respondent
Neutral citation:
Malgas v S
(703/12)
[2013] ZASCA 90
(31 May 2013)
Coram:
Navsa and
Majiedt JJA and Willis AJA
Heard:
22 May 2013
Delivered:
31 May
2013
Summary: Appeal
against sentence imposed approximately ten years ago – where
long delays attributable to the inertia of the
appellants themselves
this cannot justify interference by this court ─ appeal
dismissed.
ORDER
On appeal from:
Western Cape High Court, Cape Town (Olivier AJ, with Fourie J
concurring, sitting as court of appeal);
The appeal is dismissed.
JUDGMENT
WILLIS AJA (NAVSA and
MAJIEDT JJA):
Introduction
[1] This appeal, with the
leave of the court below, is against sentence only. The first
appellant had been an inspector in the South
African Police Service
with a record of 16 years of service. The second appellant had been a
constable. The third appellant had
previously been a police officer.
He had been discharged from the police service. The first, second and
third appellants had been
found guilty in the Regional court,
Beaufort-West of housebreaking with intent to steal dagga from the
exhibits storeroom of the
Beaufort-West police station. The third and
fourth appellants were found guilty of the theft of dagga from a
motor vehicle that
belonged to the police which had been parked on
the premises of the same police station.
[2] They were all
convicted on 5 November 2002. Sentence was imposed on 6 March 2003.
The first and second appellants were sentenced
to ten years’
imprisonment each. The fourth appellant and Daniel Malgas were
sentenced to eight years’ imprisonment
each. The third
appellant was sentenced to a period of imprisonment of eight years on
count one and ten years on count three. Taking
the cumulative effect
of the sentences into account, the magistrate ordered that six years
of the third appellant’s sentence
on count three run
concurrently with the eight years on count one. The effective
sentence for the third appellant was therefore
twelve years’
imprisonment.
[3] The Western Cape High
Court in Cape Town (per Olivier AJ, Fourie J concurring) heard the
appeal against conviction and sentence
on 3 June 2011. The court
below dismissed the appeals against the convictions in respect of all
the appellants on 24 January 2012.
Concerning sentence, the court
below dismissed the appeals of the third and fourth appellants but
upheld the appeals of the first
and second appellants, reducing their
sentence from ten years to eight years imprisonment each.
[4] None of the
appellants has been in custody, after conviction, for more than a few
months. At the time when the appellants were
convicted they then had
an automatic right of appeal to the High Court. After conviction and
sentence the magistrate dismissed
their application for bail pending
the appeal. He did so on 6 March 2003. Although it does not appear
from the record, it is common
cause that all the appellants were
nevertheless granted bail shortly after they had been convicted,
pending the hearing of their
appeal. This court knows neither who
granted such bail nor the reasons that were given for doing so. The
appellants’ bail
was extended on various occasions, mutatis
mutandis, on the same terms and conditions as before. The last
occasion their bail was
extended was on 27 January 2012.
[5] On 17 February 2012
the court below dismissed the second, third and fourth appellants’
application for leave to appeal
against their convictions, and,
although reticent, granted them leave to appeal to this court against
their sentences as freshly
imposed and confirmed by the court below
respectively. In the judgment of the court below granting leave to
appeal to this court
Fourie J said the following:
‘
Wat
die vonnisse van die appellante betref, word slegs een grond van
appèl geopper, naamlik dat ons nie genoegsaam ag geslaan
het
op die benadeling en trauma wat appellante gely het weens die lang
vertraging met die aanhoor van die appèlle nie. Dit
is
sekerlik so dat ’n lang vertraging van hierdie aard benadeling
en trauma tot gevolg kan hê, maar onssou verwag het
dat, as dit
die geval is, die appellante dit by die aanhoor van die appèl
voor ons sou geopper het. Dit word egter eers
nou op hierdie laat
stadium feitlik
as
nagedagte uit die mou geskud
.
Desnieteenstaande kan die potensiaal vir benadeling en trauma nie
sondermeer uitgesluit word nie.’
(Emphasis
added.)
On 21 September 2012 the
court below granted the first appellant leave to appeal to this court
against sentence. His bail was extended
on terms similar to those of
the other appellants. The State did not oppose the application.
[6] It appears from a
ruling given in this matter by the regional magistrate on 10 November
2010 in relation to steps that were
taken to reconstruct the record,
that certain exhibits, documentary as well as actual physical items,
had gone missing. These exhibits,
it now turns out, were immaterial
to the prospective appeal in the matter. The original docket went
missing as did the magistrate’s
notes taken during the trial.
The Trial and the
Relevant Factual Matrix
[7] During the
presentation of the State’s case, damning evidence of a direct
and circumstantial nature, corroborated in fine
detail, was given
against the appellants. None of them testified in their own defence.
The appellants were correctly convicted
on the strength of the
totality of the evidence. The offences in question were committed on
12 November 1999 and 10 January 2000.
The Sentences
[8] More than eight years
passed before the appeal was heard in the court below. There is no
affidavit on record by any of the appellants
which explains the delay
in the prosecution of their appeal. Their counsel conceded that there
is no explanation at all on the
record for the delay between 2003 and
2009, when the matter was enrolled again. This enrolment was not at
the initiative of the
appellants but, according to the record,
occurred at the behest of the investigating officer who appears to
have arranged its enrolment.
At that stage there were a number of
appearances in the regional court in an attempt to trace the missing
exhibits and to reconstruct
the record. The appellants have not taken
the court into their confidence as to how this unsatisfactory state
of affairs concerning
the tardy hearing of their appeal may have come
about.
[9] It was only when the
Registrar’s office filed a ‘notice for the filing of
heads of argument’ that the prosecution’s
attention was
drawn to the delay. The appellants filed their heads of argument on 5
April 2011 and the State theirs on 12 May 2011.
No allegation has
been made by the appellants that, for example, they paid promptly for
the transcription of the proceedings but
that, through no fault of
their own this was not timeously prepared.
[10] When the magistrate
gave his judgment refusing bail he observed, cogently, that ‘die
vonnisse nie anders kan wees as
gevangenisstraf nie. Dit is net ’n
kwessie van hoe lank. Ek is dus van mening dat om borg te weier gaan
nie julle benadeel
nie’. Entirely correctly and with an almost
eerie perspicacity he reasoned that ‘(I)nteendeel om vir u te
laat uitgaan
nou op borg en later die hele huis van kaarte inmekaar
te laat val gaan vir u werklik ’n benadeling wees’. This
case
underlines the fact that bail after conviction should be
approached with caution.
[11] The first appellant
was married. At the time that he was sentenced he had three minor
children. Mrs Van Niekerk, the attorney
then appearing for the second
appellant, said during her argument in mitigation of sentence that
‘bo en behalwe die feit
dat hy ‘n polisiebeampte was, is
hy maar net ‘n doodgewone mens soos enige ander beskuldigde wat
voor u verskyn’.
After his discharge from the police service,
the third appellant had had been persistently out of work. The first
and second appellants
had no previous convictions. The third and
fourth appellants did have previous convictions. The third
appellant’s previous
conviction was for an assault committed in
1989. The fourth appellant had a previous conviction for possession
of dagga in 1984
and another two for possession of stolen property in
1995, as well as a conviction for possession of an unlicensed firearm
in 1997.
[12] It has been
submitted to this court by Mr
Calitz
, who appeared on behalf
of the appellants, that this lengthy period of time is, in itself, an
exceptional circumstance that should
be taken into account in the
evaluation of their sentence by this court. Mr
Calitz
submitted that the lengthy period of time which it took to construct
the record necessitated a revisiting of the sentences which
had been
imposed. Mr
Calitz
conceded, however, that if it was clear
that the appellants had adopted a supine attitude to the prosecution
of the appeal, the
‘exceptional circumstance’ of the long
delay could not fairly operate in their favour.
[13] It is common cause
that there is indeed only one ground that can be considered in this
appeal; namely whether the eight year
delay from the imposition of
sentence by the magistrate to the hearing of the appeal in the court
below, in and of itself, justifies
a lighter sentence.
[14] Mr
Theron
,
who appeared on behalf of the State, submitted that if the appellants
had been in custody all this time it is highly unlikely
that their
erstwhile attorney would have made no enquiries or taken no steps to
expedite the appeal. The fact is that they had
not been in custody.
He drew attention to the fact that it nowhere appears that their
attorney of record at all relevant times
did anything to ensure a
timeous hearing of the appeal. He also pointed out that, for all the
appellants’ protestations about
the difficulties in
reconstructing the record, particularly in respect of the missing
exhibits, they do not explain why their attorneys
had no copies, as
one would have expected. He submitted further that it was clear that
the appellants had sought to manipulate
the administration of
justice. Mr
Theron
, with justification, enquired rhetorically
whether the appellants had hoped that the whole question of their
appeal would quietly
go away. He submitted further that, in view of
the extensive corruption in our country, the court should proceed
with the utmost
caution before interfering with the sentences imposed
on these appellants.
Conclusions
[15] There have been
instances where this court has interfered with sentence on the ground
of the delay in the hearing of an appeal.
In
S
v Karolia
1
the court approved the following from
The Queen v CNH
2
:
‘This court is always hesitant to return a respondent to
prison’. In
Karolia
approximately four years passed before
the appeal was heard in this court. This court substituted a
suspended sentence and a fine
for the custodial sentence originally
imposed.
[16] In
S
v Michele
3
this court substituted a suspended
sentence for the direct sentence of imprisonment that had previously
been imposed. The court
referred with approval to
Karolia
and said:
‘
While
an appeal court will generally only consider the facts and
circumstances known when sentence was initially imposed, this court
has recognised that in exceptional circumstances factors later coming
to light may be taken into account where it is in the interests
of
justice to do so.’
4
[17] In
S
v Jaftha
5
Lewis JA, who delivered the judgment
of the court, said: ‘Ordinarily, of course, only facts known to
the court at the time
of sentencing should be taken into account.’
6
She referred to
R
v Verster
,
7
R
v Hobson
8
and
Goodrich
v Botha and others.
9
Lewis
JA went on to say that:
‘
The
State also accepts that the ten-year delay [between sentence in
magistrates’ court and the hearing of the appeal in the
Supreme
Court of Appeal] is exceptional and that the sentence should be
revisited. In my view, the sentence imposed ten years ago
should be
set aside and a new sentence considered.’
10
In
Jaftha
this court substituted a fine of
R10 000, or two years’ imprisonment, for a three-year
custodial sentence which had been
imposed for a conviction of drunken
driving (a contravention of s 122(1)(
a
)
of the Road Traffic Act 29 of 1989).
[18] Rule 67 (10) of the
Magistrates’ courts rules imposes a duty on the clerk of the
court to prepare a copy of the record
of the case. Contrasted against
this, rule 51(3) of the Uniform rules provides that in criminal
appeals:
‘
The
ultimate responsibility for ensuring that all copies of the record on
appeal are in all respects properly before the court shall
rest on
the appellant or his or her legal representative: Provided that where
the appellant is not represented by a legal representative,
such
responsibility shall rest on the director of public prosecutions.’
[19] If one reads subrule
66(7) of the Magistrates’ courts rules, together with subrules
(3), 4(
a
) and (9), it is plain that it is the responsibility
of accused persons to pay for and obtain the transcripts of the
proceedings
in their criminal trials unless they are unable to pay
therefor – in which case they may apply to the magistrate for a
reduced
charge. There has been no suggestion that an application was
made by the appellants to the magistrate for a reduced charge. The
appellants were not impecunious at the relevant time and they enjoyed
the benefit of legal representation up to and including the
time of
their appeal in the court below.
[20] There can be no
automatic alleviation of sentence merely because of the long interval
of time between the imposition of sentence
and the hearing of the
appeal for those persons fortunate enough to have been granted bail
pending the appeal. The phenomenon whereby
inertia descends upon an
appeal, like a cloud from the heavens, once bail has been granted to
an accused after conviction and sentence,
has been recurring with
increasing frequency, especially in certain parts of the land. Our
own experience as judges indicate that
the clouds have been
accumulating ominously, like a storm which is gathering momentum.
Although from time to time the long delay
between the passing of a
custodial sentence and the hearing of an appeal may justify
interference with that sentence, it is only
in truly exceptional
circumstances that this should occur. Each case must be decided on
its own facts.
[21] The appellants have
adopted a supine attitude to the hearing of their appeal. Their
attitude to this case throughout has been
to adopt the attitude of a
nightjar in the veld: do as little as possible, hope that nobody will
notice and expect that the problem
will go away. Fortunately for the
administration of justice, the appellants do not enjoy a nightjar’s
camouflage. They may
have hidden but they have not been invisible.
[22] It will be hard on
the appellants and their families that, ten years after their
sentencing by the magistrate, they should
now have to report to jail
to commence serving their sentences. We have anxiously reflected upon
the needs of justice in this case,
including the requirement that
this court should show mercy to and compassion for our fellow human
beings. Having done so, the
conclusion remains inescapable that, if
this court were to regard this case as yet another ‘exception’,
it would undermine
the administration of justice. The appellants are
to blame for the long delay in bringing this matter to finality. The
predicament
in which the appellants find themselves is largely of
their own making.
[23] The first and the
second appellants may reflect on the fact that they were fortunate in
having their sentences reduced on appeal
to the court below. The
magistrate correctly took into account the fact that it was an
aggravating factor that they were police
officers at the time of the
commission of their crimes. It should not be forgotten that these
were offences committed within the
precincts of a police station
which, in a democratic state, serves as one of the symbols of law and
order. The crimes in question
violated a national symbol that,
alongside the town hall and the magistrate’s court, is
especially important in the platteland.
[24] The appeal is
dismissed.
_______________________
N P WILLIS
ACTING JUDGE OF APPEAL
APPEARANCES:
For the Appellants:
N
M Calitz
Instructed by:
The Legal Aid Board, Cape
Town
The Legal Aid Board,
Bloemfontein
For the Respondent:
J
A Theron
Instructed
by:
Director
of Public Prosecutions, Cape Town
The
Director of Public Prosecutions, Bloemfontein
1
S
v Karolia
2006 (2) SACR 75
;
[2004] 3 All SA 298
(SCA) at para
38.
2
The
Queen v CNH
Court of Appeal for Ontario, 19 December 2002, para
53.
3
S
v Michele
and another
2010 (1) SACR 131
(SCA).
4
At
para 13.
5
S
v Jaftha
2010 (1) SACR 136
(SCA).
6
At
para 15.
7
R
v Verster
1952 (2) SA 231
(A).
8
R
v Hobson
1953 (4) SA 464
(A).
9
Goodrich
v Botha and others
1954 (2) SA 540
(A) at 546A-D.
10
At
para 16.