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[2013] ZASCA 141
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Chake v S (205/13) [2013] ZASCA 141; 2014 (1) SACR 177 (SCA) (30 September 2013)
THE SUPREME COURT
OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No:
205/13
Reportable
In
the matter between:
MATSHENG JACOB CHAKE
..........................................................................
Appellant
and
THE
STATE
.................................................................................................
Respondent
Neutral citation:
Chake v State
(824/2012)
[2013] ZASCA 141
(30 September 2013)
Coram:
Navsa, Leach, Tshiqi and Saldulker JJA and Swain AJA
Heard:
10 September 2013
Delivered:
30 September 2013
Summary: Criminal Procedure ─ amendment of
s
309(1)
(a)
of the
Criminal Procedure Act 51 of 1977
by
s 84
as
read with
s 99(1)
and Schedule 4 of the
Child Justice Act 75 of 2008
─ effect thereof ─ amendment repealing automatic right of
appeal of an offender sentenced to life imprisonment by a
regional
court under
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
─
decision in
S v Alam
2011 (2) SACR 553
(WCC) approved.
___________________________________________________________________
O R D E R
___________________________________________________________________
On appeal from:
North West High Court, Mafikeng
(Leeuw JP and Landman J sitting as court of appeal):
1 The appeal succeeds to the limited extent set out in 2
below.
2 The order of the court a quo is set aside and is
substituted with the following:
‘
The appeal is struck off the
roll.’
___________________________________________________________________
J U D G M E N T
__________________________________________________________________
LEACH
JA (NAVSA, TSHIQI and SALDULKER JJA and SWAIN AJA concurring)
[1] The appellant seeks to appeal to this court against
a sentence of life imprisonment imposed upon him by a regional
magistrate
for raping two young girls. An appeal to the high court
against his sentence was dismissed on 4 June 2012, as was a
subsequent
application to that court for leave to appeal further. An
application to this court resulted in the appellant being granted the
necessary leave.
[2] The two counts of rape on which the appellant was
convicted arose out of an incident which occurred at his home near
Matseng
village on 9 October 2009. The State’s case was that
the appellant, who was in his mid-forties at the time, enticed the
two
complainants, girls who were both but 12 years of age, to enter
his home by offering them money. Once they were inside his house,
the
appellant locked them in, switched off the light and proceeded to
rape them in turn. In order to attempt to escape the consequences
of
this terrible deed, the appellant told the complainants that he would
kill them if they reported what he had done.
[3] The appellant pleaded not guilty and denied that
these events ever took place, but was convicted on the basis of what
is set
out above. Due to the age of the two complainants, each count
of rape bore a prescribed minimum sentence of life imprisonment under
the provisions of s 51(1) of the Criminal Law Amendment Act 105 of
1997 (‘the CLA’) unless there were substantial and
compelling circumstances justifying a more lenient sentence. The
regional magistrate who heard the matter concluded that there
were no
such circumstances and, taking both counts together for the purposes
of sentence, imposed life imprisonment.
[4] As already mentioned, the appellant proceeded to
lodge an appeal to the high court solely against his sentence. This
he did
without obtaining the trial court’s leave to do so.
Consequently, when the matter came before the high court, his counsel
most properly drew the court’s attention to the decision in
S
v Alam
2011 (2) SACR 553
(WCC), in which it had been held that,
since 1 April 2010, an accused sentenced to life imprisonment by a
regional magistrate required
leave to appeal.
[5] The court a quo concluded that the decision in
Alam
was wrong in that regard and held that despite the appellant having
been convicted and sentenced after 1 April 2010, he enjoyed
an
automatic right of appeal. It proceeded to hear the appeal. After
hearing argument and having concluded that there were no compelling
and substantial circumstances justifying a sentence less than life
imprisonment, the court a quo dismissed the appeal.
[6] Of course the first issue to decide is whether the
court a quo was correct in concluding that the appeal was properly
before
it. The uncertainty in this regard arises out of various
statutory enactments relating to the imposition of sentence by
regional
courts for offences referred to in the CLA, an enactment
that has not been free from controversy and has given rise to various
statutory amendments. For present purposes it suffices to record that
immediately before the end of 2007 the position was as follows:
the
ordinary jurisdiction of a regional magistrate was limited to a
maximum of 15 years’ imprisonment; Part 1 of Schedule
2 to the
CLA however prescribed a minimum sentence of life imprisonment for
certain offences; and s 52 of the CLA therefore obliged
a regional
magistrate, on convicting an accused for an offence for which life
imprisonment was prescribed, to stop the proceedings
and to commit
the accused for sentence in the high court.
[7] This position changed with effect from 31 December
2007 when s 52 of the CLA was repealed by s 2 of the Criminal Law
(Sentencing)
Amendment Act 38 of 2007 (the Sentencing Act) which, at
the same time, amended s 51(1) of the CLA to allow a regional court
to
impose life imprisonment on a person convicted of an offence
referred to in Part 1 of Schedule 2. In addition, s 6 of the
Sentencing
Act amended
s 309(1)
(a)
of the
Criminal Procedure
Act 51 of 1977
so as to provide an offender sentenced to life
imprisonment by a regional court an automatic right of appeal to a
high court. This
latter provision was presumably in order to provide
a safety net for those who were thereafter to be sentenced to life
imprisonment
by regional courts exercising jurisdiction far beyond
that they ordinarily enjoyed.
[8] After having been amended in this way, from 31
December 2007
s 309(1)(
a
)
of the
Criminal Procedure Act read
as follows:
‘
(1)(
a
)
Any person convicted of any offence by any lower court (including a
person discharged after conviction) may, subject to leave
to appeal
being granted in terms of
section 309B
or
309C
, appeal against such
conviction and against any resultant sentence or order to the High
Court having jurisdiction: Provided that
─
(i) if that person was, at the
time of the commission of the offence ─
(
aa
) below the age of 16
years; or
(
bb
) at least 16 years of
age but below the age of 18 years and was not assisted by a legal
representative at the time of conviction
in a regional court; and
(
cc
) sentenced to any
form of imprisonment as contemplated in
section 276(1)
that was not
wholly suspended; or
(ii) if that person was
sentenced to imprisonment for life by a regional court under section
51(1) of the Criminal Law Amendment
Act, 1997 (Act 105 of 1997),
he or she may note such an
appeal without having to apply for leave in terms of section 309B:
Provided further that the provisions
of section 302(1)(
b
)
shall apply in respect of a person who duly notes an appeal against a
conviction, sentence or order as contemplated in section
302(1)(
a
).’
(I should immediately mention that s 309B deals with
applications for leave to appeal made to the lower court that
convicted the
offender, while s 309C provides a procedure whereby the
convicted offender whose application for leave to appeal under s 309B
has
been unsuccessful, to seek leave of the high court by way of
petition.)
[9]
Thus from January 2008, persons
in the position of the appellant sentenced to life imprisonment by a
regional court under the CLA
enjoyed an automatic right of appeal to
the high court without having to obtain leave under
s 309B
or
309C
of
the
Criminal Procedure Act. This
position endured until the
Child
Justice Act 75 of 2008
came into operation on 1 April 2010.
Section
84
o33f that Act provides:
‘
(
1)
An appeal by a child against a conviction, sentence or order as
provided for in this Act must be noted and dealt with in terms
of the
provisions of Chapters 30 and 31 of the
Criminal Procedure Act:
Provided
that if that child was, at the time of the commission of the
alleged offence ─
(a) under the age of 16 years;
or
(b) 16 years or older but under
the age of 18 years and has been sentenced to any form of
imprisonment that was not wholly suspended,
he or she may note the appeal
without having to apply for leave in terms of
section 309B
of that
Act in the case of an appeal from a lower court and in terms of
section 316 of that Act in the case of an appeal from a
High Court .
. .’
[10] The automatic right of appeal provided to minors by
this section is almost identical to that set out in part of the
proviso
to s 309(1)(
a
)
as it read from 31 December 2007 (quoted in para 8 above). The only
alteration is that s 84 is slightly broader in its operation
in that
it provides for a child below sixteen years of age to enjoy an
automatic right of appeal without regard to whether imprisonment
not
wholly suspended is imposed. Be that as it may,
s 99(1)
of the
Child
Justice Act further
amended or repealed the laws specified in
Schedule 4 of that Act ‘to the extent set out in the third
column of that Schedule’.
[11] The laws so amended included s 309(1)(
a
) of
the
Criminal Procedure Act, which
was altered to read as follows:
‘
(1)(
a
)
Subject to
section 84
of the
Child Justice Act, 2008
, any person
convicted of any offence by any lower court (including a person
discharged after conviction) may, subject to leave
to appeal being
granted in terms of
section 309B
or
309C
, appeal against such
conviction and against any resultant sentence or order to the High
Court having jurisdiction:’
Thus, at a stroke, by amending the proviso to
s
309(1)(
a
) in this way,
the legislature did away with the automatic right of appeal enjoyed
by an offender sentenced to life imprisonment
by a regional court, a
right that had been in existence for only two years and three months.
[12] The court a quo concluded that the
Child Justice
Act had
been intended to protect the interests of children and that
its provisions, including
s 99(1)
, were of no application to adult
offenders; and that therefore the automatic right of appeal enjoyed
by an adult offender, such
as the appellant when sentenced to life
imprisonment by a regional court, had not been repealed.
[13] This conclusion is clearly wrong. Judges must be
careful not to submit to the temptation of substituting what they
regard would
have been reasonable and sensible for what was in fact
done by the legislature, and to thereby ‘cross the divide
between
interpretation and legislation’.
1
Instead, a court must determine the appropriate meaning
of the words used in the statutory provision in question by adopting
their
plain meaning unless it would lead to a glaring absurdity. In
the present case there is no absurdity. The effect of
s 99(1)
of the
Child Justice Act, as
read with the schedule thereto, was to replace
s 309(1)(
a
) of the
Criminal Procedure Act with
a new section that no longer included an
automatic right of appeal in cases of life imprisonment imposed by
regional courts as
had up until then been contained in part (ii) of
the proviso to the section. Whether it would have been wiser or more
sensible
to have retained that provision is neither here nor there.
The legislature removed it and, absent any legislative provision
preserving
it, it is not open for the courts to regard it as it still
being in existence.
[14] I do not know why part (ii) of the proviso was
removed from the statute books. It may be that it was done in error,
possibly
flowing from the fact that the
Child Justice Act, in
bill
form, had initially been published in 2002, well before the automatic
right of appeal in life imprisonment cases was introduced.
On the
other hand, it may have been felt that it was unnecessary and that
the interests of justice were adequately protected by
the leave to
appeal provisions in
ss 309B
and
309C
. It would be idle speculation
to attempt to decide which is more likely, but the fact remains that
the automatic right to appeal
in life imprisonment cases was
repealed.
[15] I stress that there was no attempt to impugn the
provisions of the
Child Justice Act that
amended
s 309(1)(
a
)
by way of a constitutional challenge, nor were the parties who would
have to be cited in such a case before court. An automatic
right of
appeal was assented simply on the basis that an interpretive excuse
led inevitably to that conclusion. As demonstrated
above, that is not
so. For present purposes we must therefore accept that the amendment
was validly made and, that being so, the
court a quo wrongly
concluded that the appellant still enjoyed an automatic right of
appeal. The decision in
Alam
on this issue was correct.
[16] It is necessary to emphasise that the appellant is
not without recourse, and that might explain the lack of a
constitutional
challenge. The appellant ought to have applied to the
regional court for leave to appeal under
s 309B
of the
Criminal
Procedure Act and
, in the event of that application failing, have
petitioned a high court for such leave under
s 309C.
This he failed
to do. His appeal was therefore not properly before the high court,
which should have declined to entertain it,
and its order dismissing
the appellant’s appeal must be set aside. To that limited
extent the appeal to this court must succeed.
This will leave the
appellant at liberty to seek to pursue an appeal in the prescribed
manner if he is so advised.
[17] It remains to comment on the State’s handling
of this matter. The issue whether a person sentenced to life
imprisonment
by a regional court has an automatic right of appeal is
clearly a matter of national importance, and I have no doubt that
this
influenced the decision of this court to grant leave to appeal.
Indeed we were informed by counsel for the parties that in certain
divisions of the high court the approach in
Alam
is being
followed, but that this is not the uniform approach throughout the
country. Despite this, the State entrusted the presentation
of its
argument to junior counsel of but a few years’ experience. He
did his best I am sure, but it is unacceptable that
it was left up to
him to conduct the matter without supervision, particularly as he did
not attempt to argue against the appellant’s
contention that
Alam
had been incorrectly decided. Both the courts and the
public at large deserve better service from the Directorate. Even if
the
State for some reason was of the view that
Alam
might not
be correct, we ought to have enjoyed argument on the matter to assist
us in reaching a judgment which binds the country.
[18] It is ordered as follows:
1. The appeal succeeds to the limited extent set out in
2 below.
2. The order of the court a quo is set aside and is
substituted with the following:
‘
The appeal is struck off the
roll.’
______________________
L E Leach
Judge of Appeal
APPEARANCES:
For Appellant: N L SKIBI
Instructed by:
Mafikeng Justice Centre, Mafikeng
For Respondent: D P RANTSANE
Instructed by:
The Director of Public Prosecutions,
North West Division, Mmabatho
The Director of Public Prosecutions,
Bloemfontein
1
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA
593
(SCA) para 18.