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[2012] ZASCA 133
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Toubie v S (635/11) [2012] ZASCA 133; [2012] 4 All SA 290 (SCA) (27 September 2012)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
REPORTABLE
Case no: 635/11
In
the matter between:
DON
TOUBIE
...................................................................................................
Appellant
and
THE
STATE
..................................................................................................
Respondent
Neutral
citation:
Toubie v S
(635/11)
[2012] ZASCA 133
(27
September 2012)
Coram:
HEHER, MHLANTLA, BOSIELO, SHONGWE JJA and ERASMUS AJA
Heard:
31 August 2012
Delivered:
27 September 2012
Summary:
Criminal law –
interpretation of Section 22 of the Supreme Court Act 59 of 1959 and
s 322
of the
Criminal Procedure Act 51 of 1977
– the effect of
a trial court failing to inform an accused person of the
applicability of the
Criminal Law Amendment Act 105 of 1997
.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
South Gauteng
High Court (Johannesburg) (Malan J, Khampepe J and Farber AJ sitting
as court of appeal)
The appeal is upheld. The order of the
full court in paragraphs 4, 5, 6.1 and 6.2 is set aside and replaced
with the following:
“
The
appellant is sentenced as follows:
1 On count 1 (robbery) ten years’
imprisonment.
2 On count 4 (murder) 25 years’
imprisonment.
3 On count 6 (attempted murder) five
years’ imprisonment.
4 On count 9 (possession of firearm)
three years’ imprisonment.
5 On count 10 (possession of
ammunition) two years’ imprisonment.
6 Five years of the sentence in count
1 and the sentences in counts 6, 9 and 10 shall run concurrently with
the sentence in count
4. Effectively the appellant shall serve 30
years’ imprisonment. The sentences are antedated to 4 September
2001.”
___________________________________________________________________
JUDGMENT
___________________________________________________________________
SHONGWE JA (MHLANTLA, BOSIELO JJA,
ERASMUS AJA concurring)
[1] This appeal arose from what the
appellant says was a shopping spree for the new year of 1999 at the
Paputsi clothing store in
the centre of Johannesburg. Sadly this
ended in a horrific robbery of the staff accompanied by random
shooting which resulted in
the death of an innocent passer-by.
[2] As a result of what I have briefly
described above, the appellant was arraigned before Mophosho AJ in
the South Gauteng High
Court (Johannesburg). He was convicted as
follows: three counts of robbery with aggravating circumstances as
defined in
s 1of
the Criminal Procedure Act 51 of 1977 (CPA), and
sentenced to six years’ imprisonment on each count; murder, and
sentenced
to 20 years’ imprisonment; three counts of attempted
murder, and sentenced to six years imprisonment on each count;
unlawful
possession of firearms, and sentenced to three years’
imprisonment; and unlawful possession of ammunition, and sentenced to
two years’ imprisonment. The trial court ordered that the
sentences on the counts of robbery, attempted murder and unlawful
possession of firearms and ammunition ‘shall run concurrently
with each other, but not with the murder sentence’. Effectively
the appellant would serve 26’ years imprisonment.
[3] Immediately after the imposition
of sentence, the appellant’s legal representative (Mr Omar)
orally applied for leave
to appeal and, inter alia, said the
following: -
‘
M’Lord,
I informed the court yesterday of my intention or instructions to
pursue application for leave to appeal m’Lord.
I did hastily
last night apply my mind to the reasons for the application for leave
to appeal as far as the conviction is concerned.
As far as the
sentence is concerned it was very general, but it has been included
m’Lord. With the permission of your Lordship,
I will hand your
Lordship the notice of application for leave to appeal and a copy to
my colleague and address your Lordship. May
I proceed m’Lord?.’
Unfortunately Mr Omar’s address
to the court as well as the State counsel’s address do not form
part of the record before
us, nor does the notice of application for
leave to appeal as undertaken by Mr Omar. Clearly the record before
us is to some extent
incomplete and falls short of the requirements
in s 316 (4)
(a)
and
(b)
of the CPA which reads as
follows:
‘
(4)
(a)
Every
application for leave to appeal must set forth clearly and
specifically the grounds upon which the accused desires to appeal.
(b)
If the accused applies orally
for such leave immediately after the passing of the sentence or
order, he or she must state such grounds,
which must be recorded and
form part of the record.’
The trial court granted leave to
appeal to the full court of the South Gauteng High Court
(Johannesburg) against conviction.
[4] The full court (Farber AJ, Malan J
and Khampepe J concurring) instead of considering the appeal against
conviction only, being
of the view that the sentences imposed by the
trial court were inappropriate or incompetent, also dealt with the
sentences. The
court gave due notice to the parties that it intended
to revisit the sentences imposed. I shall revert to this aspect later
in
this judgment. The full court started by analysing the principles
of onus of proof in criminal cases, the standard of proof beyond
reasonable doubt, the approach to be adopted in determining whether
the onus has been discharged in a particular case and the power
of an
appeal court to upset the factual findings of a trial court (see
S
v Toubie
2004 (1) SACR 530
(W) at 533
e
– 535
i
).
Nothing turns on the legal principles and the conviction for purposes
of this appeal. This appeal concerns a question of law,
namely
whether the full court was competent to deal with the question of
sentence which was not the subject of appeal.
[5] It is necessary to briefly state
the background of what actually happened on that fateful day. The
State alleged that the appellant
together with other persons, who
unfortunately were not charged, entered the store brandishing
firearms and demanded money and
started removing some of the goods in
the store. They threatened and assaulted the staff, removed a wrist
watch from one Mr Corrie
van Zyl, the store manager, a wallet and
some jewellery and a firearm from the security officer who guarded
the store. After the
robbers had removed the goods they left the
store. They were confronted by other security officers and a shooting
ensued between
the robbers and security officers. Passers-by were
shot and injured and one was fatally wounded; one of the robbers was
also killed
during the shoot-out. The appellant, who sustained a
bullet wound, was pursued by the security officers and eventually
apprehended.
The full court described what happened as ‘bedlam
of the worst kind’.
[6] The appellant did not testify nor
did he call any witnesses. He however handed up a written statement
in terms of the provisions
of s 115 of the CPA. He placed himself at
the scene of the crime as an innocent person who accompanied his
friend, one Eugene,
to buy shoes. He also admitted that when Eugene
discovered that he did not have enough money to pay for the shoes,
they decided
to leave the store but returned immediately after
agreeing to steal them. He denied having knowledge that his friends
possessed
firearms and that he had the intention to kill anyone.
[7] The full court, after a careful
consideration of the facts and the law, came to the conclusion that
the State had proved its
case beyond a reasonable doubt on some of
the charges. I agree with that conclusion. It stated that three
robbery charges (counts
1, 2 and 3) should be treated as one, because
to separate them would result in a duplication or splitting of
charges. The convictions
on counts 2 and 3 were consequently set
aside. It found that the State had not proved its case on the
attempted murder charges
(counts 5 and 7) beyond reasonable doubt and
set aside the convictions on these charges.
[8] The full court then turned to the
question of sentence and the applicability of s 51 of the
Criminal Law Amendment Act
105 of 1997 (the Act) read with Part I of
Schedule 2 thereof. It invoked the provisions of s 322 of the CPA
after giving the requisite
notice to the parties. The full court set
aside the sentences imposed in respect of counts 1 and 4 and replaced
them with 15 years’
imprisonment and life imprisonment
respectively. More will be said on the Criminal Law Amendment Act
later in this judgment.
[9] Before us the appellant contends
that the full court was not competent to deal with the question of
sentence at all as it did
not form the subject of the appeal.
Reliance is placed on the provisions of s 22 of the Supreme Court Act
59 of 1959 which reads
as follows:
‘
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 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.’
[10] Mr Omar contends that the words
‘which is the subject of the appeal’ in s 22
(b)
should be interpreted to mean that because the appeal was against
conviction only, the full court could not interfere with the
sentence
even if it was of the view that failure to interfere would result in
an injustice. This argument is without substance
and falls to be
rejected outright. Subsection
(b)
of s 22 clearly and
unambiguously provides that over and above the power to confirm,
amend or set aside the judgment or order which
is the subject of the
appeal, the provincial or local division having appeal jurisdiction
is also empowered to ‘give any
judgment or make any order which
the circumstances may require’. (See
S v Citizen Newspapers
(
Pty) Ltd en ʼn ander; S v Perskorporasie van SA Bpk en ʼn
ander
1981 (4) SA 18
(A) at 19G-H). It was held that where there
is no appeal against sentence, the Appeal Court is empowered in terms
of section 22
(b)
of Act 59 of 1959 to give any judgment or
make any order which the circumstances may require. Immediately after
the words ‘subject
of appeal’ in sub-(b) of s 22 is the
word ‘and’, which is a conjunction, being a word used to
connect clauses,
sentences or words in the same clause (The Concise
Oxford Dictionary – Ninth Edition).
[11] Section 22 of the Supreme Court
Act is to a great extent complemented by the provisions of s 322 of
the CPA which also deals
with the powers of a court of appeal. It
reads as follows:
‘
(1)
In the case of an appeal against a conviction or of any question of
law reserved, the court of appeal may –
(a)
allow the appeal if it thinks
that the judgment of the trial court should be set aside on the
ground of a wrong decision of any
question of law or that on any
ground there was a failure of justice; or
(b)
give such judgment as ought to
have been given at the trial or impose such punishment as ought to
have been imposed at the trial;
or
(c)
make such other order as justice
may require:
Provided
that, notwithstanding that the court of appeal is of opinion that any
point raised might be decided in favour of the accused,
no conviction
or sentence shall be set aside or altered by reason of any
irregularity or defect in the record or proceedings, unless
it
appears to the court of appeal that a failure of justice has in fact
resulted from such irregularity or defect.
(2)
Upon an appeal under section 316 or 316B against any sentence, the
court of appeal may confirm the sentence or may delete or
amend the
sentence and impose such punishment as ought to have been imposed at
the trial.
(3)
Where a conviction and sentence are set aside by the court of appeal
on the ground that a failure of justice has in fact resulted
from the
admission against accused of evidence otherwise admissible but not
properly placed before the trial court by reason of
some defect in
the proceedings, the court of appeal may remit the case to the trial
court with instructions to deal with any matter,
including the
hearing of such evidence, in such manner as the court of appeal may
think fit.
(4)
…
(5)
…
(6)
The powers conferred by this section upon the court of appeal in
relation to the imposition of punishments, shall include the
power to
impose a punishment more severe than that imposed by the court below
or to impose another punishment in lieu of or in
addition to such
punishment’.
In the present case the full court
dealt with the appeal against both the conviction and sentence. This
is notwithstanding the fact
that the appellant had appealed against
the conviction only. As mentioned earlier the trial court granted
leave against conviction
and was silent on the sentence. It is
apposite to refer to s 316 (3)
(e)
of the CPA which deals with
applications for condonation, leave to appeal and further evidence.
It reads as follows:
‘
(3)
(e)
Upon
an appeal under this subsection the provisions of section 322 shall
apply mutatis mutandis with reference to the powers of
the Supreme
Court of Appeal.’
[12] In
S v Shenker & another
1976 (3) SA 57
(A), at 60 A, Galgut JA said
‘
The
grounds must be clearly and specifically set out. It follows that an
applicant for leave to appeal would have to set out whether
he is
appealing against the conviction or sentence or both.
However,
even if this was not done or even if the trial judge refused leave to
appeal against the sentence, the Court of Appeal
is not precluded
from exercising the powers granted to it by section 369 (1) (b).
’
(My emphasis)
Section 369(1)
(b)
of Criminal
Procedure Act 56 of 1955 is the predecessor to s 322 of the CPA. For
a neat and detailed comparison see
S v Toubie
(supra) at
530-556 and the cases referred to therein. Subsection (6) of s 322
undoubtedly confers power to the appeal court to impose
punishment
more severe than that of the trial court or to impose another
punishment in the place of or in addition to such punishment.
In the
present case it is not in dispute that the clerk to Stegmann J, on 28
January 2003, sent a notice to the legal representative
of the
appellant alerting him of the possibility that the sentence may be
increased in respect of the murder charge from 20 years’
imprisonment to life imprisonment in terms of the minimum sentence
regime. Mr Omar, on behalf of the appellant, responded and undertook
to advise the appellant of his rights. His view was and still is that
this appeal was and is about the propriety of the appellant’s
conviction and not the sentence, hence the contention that the full
court was not competent to deal with the issue of sentence.
[13] Section 22 of the Supreme Court
Act read together with s 322 of the CPA must be understood to provide
that a court of appeal
is empowered to confirm, amend or set aside a
judgment or order which is the subject of the appeal and give
any
judgment or make
any
order which the circumstances may
require. (My emphasis) The intention is for a court of appeal to
dispense justice. An appeal
court cannot close its eyes to a patent
injustice simply because the injustice is not a subject of appeal.
If, for example, the
sentence imposed by the court below is
shockingly inappropriate and in excess of what the law permits, the
appeal court is empowered
to interfere to avoid a miscarriage of
justice.
See R v Deetlefs
1953 (1) SA 418
(A);
R v Myburgh
1922 AD 249
;
S v F
1983 (1) SA 747
(O) at 752E–754 C;
also see s 309(3) of the Criminal Procedure Act). I am not aware of
any later decision, and Mr Omar did
not refer to one overruling these
cases. In the result, I find that his submissions are without
substance. Accordingly I find that
the full court was empowered by
both s 22 of the Supreme Court Act and s 322 of the CPA to deal with
sentence even though it was
not a subject of the appeal.
[14] That however is not the end of
this matter. This court mero motu raised the question relating to the
Criminal Law Amendment Act 105 0f
1997 (the Act). The indictment
alleged, and it is not in dispute that the State proved the offence
of robbery with aggravating
circumstances as defined in s 1 of the
CPA. Had the appellant been forewarned, by the trial court, that the
State was going to
rely on the provisions of the minimum sentence
regime the appellant’s conduct would have attracted the
sentence prescribed
in accordance with the provisions of s 51(2)
(a)
read with Part II of Schedule 2 of the Act. In this case the
appellant was also convicted of murder in circumstances as defined in
s 51 (1) read with Part I of Schedule 2 of the Act. Therefore the
sentences in both the robbery and the murder were subject to
subsections 3 and 6 which provide that if the court is satisfied that
substantial and compelling circumstances exist which justify
the
imposition of a lesser sentences than the sentence prescribed, (in
the case of robbery 15 years imprisonment is prescribed
for first
offenders and life imprisonment is prescribed for murder), it shall
enter the circumstances on the record and must therefore
impose such
lesser sentence.
[15] The record of the proceedings is
however silent on the question whether the appellant was informed of
the provisions of the
minimum sentence legislation. The indictment
also does not indicate any reliance on the Act. The first time the
trial court mentioned
the legislation and in particular the
non-existence of substantial and compelling circumstances was when it
was considering an
appropriate sentence. Notwithstanding the findings
that no substantial and compelling circumstances existed, the trial
court imposed
a sentence lesser than the prescribed minimum sentence.
In my view, this irregularity is of a double-barrelled nature. First
the
appellant was not informed of the applicability of the provisions
of the minimum sentence regime and second, despite finding no
substantial and compelling circumstances, the trial court did not
impose the prescribed minimum sentence. Realizing the mistake
of the
trial court the full court attempted to rectify that mistake, but, in
my view, it was too late for the reasons set out below.
The
imposition of the increased sentences by the full court caused some
consternation to the appellant and resulted in this appeal.
[16] The crimes committed by the
appellant fall squarely within the ambit of Part II of Schedule 2 and
Part I of Schedule 2 respectively.
The robbery was accompanied by
aggravating circumstances; therefore, the minimum sentence prescribed
is 15 years’ imprisonment
for a first offender. The murder was
committed during the robbery and was committed by a group of persons
acting in the execution
of a common purpose. At the stage when the
full court dealt with the question of the minimum sentence, it was
tantamount to closing
the stable door after the horse had already
bolted. In
S v Jaipal
[2005] ZACC 1
;
2005 (1) SACR 215
(CC) Van der
Westhuizen J said that ‘
an
irregularity is an irregular or wrongful deviation from the
formalities and rules of procedure aimed at ensuring a fair trial’.
(See also
The State v Mofokeng
1962 (3) SA 551
(A) at
557 and
S v Ramovha
en ʼn ander
1986 (1) SA 790
(A) at
795H).
[17] In
S v Ndlovu
2003 (1)
SACR 331
(SCA) para 12, Mpati JA said:
‘
And
I think it is implicit in these observations that where the State
intends to rely upon the sentencing regime created by the
Act a fair
trial will generally demand that its intention pertinently be brought
to the attention of the accused at the outset
of the trial, if not in
the charge-sheet then in some other form, so that the accused is
placed in a position to appreciate properly
in good time the charge
that he faces as well as its possible consequences. Whether, or in
what circumstances, it might suffice
if it is brought to the
attention of the accused only during the course of the trial is not
necessary to decide in the present
case. It is sufficient to say that
what will at least be required is that the accused be given
sufficient notice of the State’s
intention to enable him to
conduct his defence properly.’
[18] In
S v Legoa
2003 (1) SACR
13
(SCA) Cameron JA referred with approval to
S v
Seleke en
andere
1976 (1) SA 675
(T) at 682H. In
Seleke
the full
court said the following:
‘
To
ensure a fair trial it is advisable and desirable, highly desirable
in the case of an undefended accused, that the charge sheet
should
refer to the penalty provision. In this way it is ensured that the
accused is informed at the outset of the trial, not only
of the
charge against him, but also of the State’s intention at
conviction and after compliance with specified requirements
to ask
that the minimum sentence in question at least be imposed.’
(Translation
by Cameron JA)
This was said some 18 years before the
dawn of our new constitutional dispensation. It is the more relevant
to our times than then,
that the right of an accused person to a fair
trial be observed and protected to avoid a miscarriage of justice.
[19] In
S v Makatu
2006 (2)
SACR 582
(SCA) para 7 Lewis JA held that it is advisable for an
accused person to know from the outset what the implications and
consequences
of the charge against him are. This will assist the
accused to decide how he/she was going to conduct the trial, whether
to testify
and or call witnesses.
[20] Failure to forewarn the accused
is in conflict with the provisions of s 35(3)
(a)
of the
Constitution, 108 of 1996 (the Constitution) which provides that
every accused person has a right to a fair trial which,
inter alia,
includes the right to be informed of the charge with sufficient
detail to answer it. This court is entitled to raise
this issue mero
motu because the irregularity resulted in an injustice and was
prejudicial to the appellant who, in the eyes of
the full court
deserved life imprisonment for the murder see (s 322(1)
(c)
of
the CPA). The appellant was legally represented by Mr Omar, a senior
attorney, from the outset of the trial up to this court.
I can only
assume that Mr Omar should have been vigilant, but this is no excuse
to prejudice the appellant.
[21] The question is, whether the
irregularity is of such a nature as to render the entire proceedings
unfair. The answer is no:
because not the entire proceedings are
vitiated by the irregularity as this only affects the sentence. The
nature of the irregularity
of the sentencing procedure is such that
it could be safely separated from the proceedings as a whole in such
a manner that the
conviction for robbery and murder remains intact to
satisfy the requirements of a fair trial (
Phithela Mapule v The
State
[2012] ZASCA 80
para 15).
[22] The irregularity in this case
lies in the fact that the appellant was not informed of the
applicability of
s 51
of the
Criminal Law Amendment Act, either
at
the plea stage or during the trial. As the appellant was not informed
that he was charged under the
Criminal Law Amendment Act the
full
court erred in sentencing him in terms of that Act. He could only
have been sentenced, in accordance with the trial court’s
ordinary penal jurisdiction. However, I am of the view that it will
not serve any useful purpose to refer the matter back to the
trial
court. This court has all the facts before it and is therefore able
to consider the sentence afresh, although the record
is incomplete,
nothing of importance is lost, as the missing part is the address to
court by both counsels. However whatever facts
the court a quo had
before it, this court also has. This means that the court will
consider an appropriate sentence outside the
minimum sentence regime.
See
Legoa
;
Ndlovu
and
Makutu
. The appellant has
been in prison since his arrest in December 1998, which is about 14
years. I have a reasonable apprehension
that to refer this matter to
the trial court for sentencing will result in further delays. Such
would defeat the purpose of s 35(3)
(a)
and
(d)
of the
Constitution and result in a more substantial unfairness. It is clear
that both the trial court and the full court misdirected
themselves
on sentence. The sentences imposed have to be set aside. This court
is at large to consider the sentence afresh. (See
S v Malgas
2001 (1) SACR 469
(SCA) para 12)
(2001 (2) SA 1222
;
[2001] 3 All SA
220).
I now proceed to deal with the sentence.
[23] I turn now to consider sentence
afresh. The offences for which the appellant was convicted are
serious offences. I cannot emphasize
this more than it is necessary.
Innocent people were injured and one died because of the conduct of
the appellant and his gang.
Society looks up to the courts to protect
them and bring to an end the lawlessness and violent crimes that
prevail in the country.
The appellant must consider himself very
lucky that only one person died as it was that time of the year when
many people were
going about town doing their Christmas and New Year
shopping.
[24] The appellant was 26 years old at
the time of the commission of the offences, unmarried with three
children and a first offender.
However, his youthfulness should be
seen in the light of his participation in armed robberies. He was a
mature adult and must take
responsibility of his action. (See
S v
Matyityi
2011 SACR 40
(SCA) para 14). The appellant together with
his friends were armed with firearms. When they decided to rob
Paputsi store, they
knew or ought to have known that the firearms
would be used. They knew or should have known that they might
encounter resistance
and therefore that force would have to be used.
The murder of a passer-by is inexcusable and has to be punished with
the most severe
sentence.
[25] This court endorses what was said
in
S v Zinn
1969 (2) SA 537
(A) regarding the triad.
Furthermore this court is alive to the fact that a court must balance
the basic triad without over-emphasizing
the one against the other in
line with the main purposes of punishment. In my view an appropriate
sentence is one of long term
imprisonment due to the seriousness of
these offences.
[26] At the end of the hearing this
court was informed that the appellant had been released on parole on
16 May 2012. It would appear
that the parole was granted on the basis
of the sentences imposed by the trial court and not based on the
sentences imposed by
the full court The correctional services
authorities, apparently did not have the warrant of detention signed
by members of the
full court. It is recommended that a copy of this
judgment be brought to the attention of the head of the correctional
services
in Boksburg where the appellant was held and another copy to
the Minister of Correctional Services.
[27] In the result the appeal against
sentence has to succeed, albeit on a point not raised by either the
appellant or the State.
[28] The appeal is upheld. The order
of the full court in paragraphs 4, 5, 6.1 and 6.2 is set aside and is
replaced with the following:
“
The
appellant is sentenced as follows:
1 On count 1 (robbery) ten years’
imprisonment.
2 On count 4 (murder) 25 years’
imprisonment.
3 On count 6 (attempted murder) five
years’ imprisonment.
4 On count 9 (possession of firearm)
three years’ imprisonment.
5 On count 10 (possession of
ammunition) two years’ imprisonment.
6 Five years of the sentence in count
1 and the sentences in counts 6, 9 and 10 shall run concurrently with
the sentence in count
4. Effectively the appellant shall serve 30
years’ imprisonment. The sentences are antedated to 4 September
2001.”
___________________________
J B Z SHONGWE
JUDGE
OF APPEAL
HEHER JA (dissenting):
[29] This Court granted the appellant
special leave to appeal in terms of
s 316(13)(c)
of the
Criminal
Procedure Act 51 of 1977
against the sentence imposed on him by the
full court of the South Gauteng Division of the High Court. Leave was
limited to the
question of whether it was competent for the full
court to impose sentence on counts 1 and 4 where no appeal was noted
against
sentence and where leave was not sought from or granted by
the trial court against sentence.
[30] Reference to the application to
this Court for leave confirms that the narrow formulation of the
order accurately reflected
the only ground of appeal relied on by the
appellant in seeking leave. Indeed it was also the only ground
addressed in the heads
of argument of the parties and in the oral
submissions made to us.
[31] I agree with my brother Shongwe
JA that the full court did not err. Whether relying on s 22(b) of the
Supreme Court Act 59
of 1959 or s 322(1)(b) read with
s 322(6)
of the
Criminal Procedure Act 51 of 1977
, that court was empowered to
set aside sentences imposed by the trial court that did not accord
with the law – in this case
the minimum sentencing legislation
embodied in
ss 51(1)
and
51
(2)(a)(i) of the
Criminal Law Amendment
Act 105 of 1997
read with para (c) of the definitions of ‘murder’
in
Part I
of Schedule 2 and para (a) of the definition of robbery in
Part II
of Schedule 2 respectively – and to substitute for such
sentences those appropriate to the offences albeit that the
substitutions
resulted in increases in the respective sentences and
that the appellant had not appealed to the full court against the
sentences
but only against the convictions:
S v Citizen Newspapers
(Pty) Ltd
1981 (4) SA 18
(A) at 28D-G;
S v F
1983 (1) SA
747
(O) at 751;
S v Kirsten
1988 (1) SA 415
(A) at 421E-G.
[32] Moreover I find no difference in
principle between this case and
S v E
1979 (3) SA 973
(A).
There an appellant had been charged with rape but convicted by a
judge and assessors of indecent assault. On appeal against
his
conviction to the full court, that court substituted a conviction for
rape and increased the sentence accordingly. On a further
appeal this
Court said (at 977), after considering the authorities, that where an
appeal court is satisfied that the trial court
convicted an appellant
of a lesser offence than that with which he was charged, because of a
wrong finding of fact or law, the
appeal court is competent, under
the
Criminal Procedure Act 51 of 1977
, to alter the sentence
appropriately and has power either to remit the case for the
imposition of a proper sentence or itself to
impose such sentence. If
the court has that power in relation to an error of law that results
in an incorrect conviction it follows
that the court should be able
to exercise an equivalent power when such an error results in an
incompetent sentence.
[33] For these reasons there was no
merit in the appeal and it should, in my view, be dismissed.
[34] Shongwe JA concludes, however,
that there are other grounds for upholding the appeal, setting aside
the compulsory minimum
sentences imposed by the court a quo and
reconsidering the sentences. For the reasons which follow I am unable
to agree with him.
[35] During the hearing of the appeal
a member of the bench drew attention to the omission from the
indictment of any reference
to the provisions of the minimum
sentencing legislation. Counsel for the appellant did not seek to
rely on the shortcoming or to
amend his grounds of appeal to
incorporate such reliance.
[36] An appeal court will in a proper
case allow an enlargement of the issues beyond the grounds on which
leave has been granted:
Legal Aid Board v The State
2011 (1)
SACR 166
at 176. Whether it will do so depends on the cumulative
effect of a number of considerations, such as
(i) whether there is sufficient merit
in the ground to warrant its inclusion; (
ibid
at 176b)
(ii) whether any party may be
prejudiced by its inclusion; (
ibid
at 176c)
(iii) whether the issue that it raises
has been fully canvassed so as to permit of a fair and complete
assessment of its merits:
cf
Shill v Milner
1937 AD 101
at
105.
[37] The present case requires a
negative answer to all three enquiries. I shall deal with the merits
in some detail below. Second,
the State was clearly taken by surprise
and in no position to address meaningfully the new ground. Third, the
record was incomplete
in respects vital to a proper adjudication and
this problem was exacerbated by the fact that the substance of the
complaint had
not been drawn to the attention of either of the lower
courts and so we do not have the benefit of their views. This last
aspect,
as I shall show, is of particular importance because of the
approach to substantial and compelling circumstances taken by the
trial
judge in his judgment on sentence.
[38] The powers of this Court on
appeal in criminal matters are regulated by s 322 of the Criminal
Procedure Act. Subsection (2)
provides
‘
Upon
an appeal under section 316 [which this is] or 316B against any
sentence, the court of appeal may confirm the sentence or may
delete
or amend the sentence, and impose such punishment as ought to have
been imposed at the trial.’
[39] Subsection (2) is not made
subject to the express proviso to ss (1) that permits interference
with a conviction only if it
appears to the court of appeal that a
failure of justice has in fact resulted from an irregularity or
defect in the record or proceedings.
Nevertheless, when, as in this
appeal, the irregularity is said to have resulted in an unfair trial,
the court’s approach
on appeal can be no different from that
which has been established in relation to ss (1).
[40] An irregularity in proceedings
does not automatically result in a failure of justice or an unfair
trial. As Cameron JA said
in
S v Legoa
2003 (1) SACR 13
at
para 21:
‘
Whether
the accused’s substantive fair trial right, including his
ability to answer the charge, has been impaired, will therefore
depend on a vigilant examination of the relevant circumstances.’
See also
S v Mabuza and Others
2009
(2) SACR 435
(SCA) at 440e-441g. This is an approach that accords
with the long-established practice in relation to the determination
of whether
a failure of justice as contemplated in s 322 has in fact
occurred:
R v Rose
1937 AD 467
at 476-7;
S v Mushimba
1977
(2) SA 829
(A) at 844H;
S v Jaipal
[2005] ZACC 1
;
2005 (4) SA 581
(CC) at
599D-601E, and it enables a balance to be struck between prejudice to
the accused and the interest of the public in knowing
that justice
has been served. In
Hlantalala and Others v Dyantyi NO and Another
1999 (2) SACR 541
(SCA) at para 9 Mpati AJA stressed that ‘no
failure of justice will result if there is no prejudice to an
accused’.
[41] No doubt the omission to include
reference to the minimum sentencing provisions in the indictment was
an irregularity that
could have given rise to an unfair trial:
S v
Makatu
2006 (2) SACR 582
(SCA) at 587d. There is however no
evidence whatsoever that it had that consequence in the appellant’s
case nor is there
any reason to infer that it did.
[42] The relevant circumstances that
bear upon the question of whether the irregularity in the charge
caused any prejudice to the
appellant are these:
1. The appellant was tried in the High
Court and was legally represented throughout the trial and in the two
appeals that followed.
2. The appellant has at no stage
relied on the irregularity to impugn the trial proceedings. He has
not, whether in evidence or
by affidavit, alleged that he was unaware
of the minimum sentencing requirements or their implications for his
case. Neither has
his legal representative asserted his client’s
ignorance nor informed the court that he failed to draw the
appellant’s
attention to the provisions or explain the
implications to him.
3. Prejudice to the appellant is a
consequence within his peculiar knowledge and a court need not
speculate where he himself is
silent. That applies also to his
failure to allege that if he had been properly informed of the
minimum sentencing provisions from
the outset of the trial, or at any
time during the trial, his prospects would have improved one iota in
relation to sentence.
4. The appellant’s attorney, who
was responsible for preparing the record on appeal, deliberately
omitted all reference to
the pre-sentencing proceedings (apparently
comprising pages 257 to 311 of the record). Accordingly this Court is
not informed of
whether the appellant was invited to and did (or
declined to) adduce evidence or make submissions in relation to the
existence
of ‘substantial and compelling circumstances’
(as envisaged in
s 51(3)(a)
of the
Criminal Law Amendment Act).
Neither
the appellant nor his attorney has informed us that he was
not afforded such an opportunity. From his silence and the fact that
the trial court made an express finding concerning the absence of
such circumstances it is reasonable to infer that the provisions
of
the statute were present to the mind of the learned judge and that he
had taken the steps necessary and appropriate to arrive
at that
conclusion.
5. The senior high court judge in
Johannesburg addressed a letter to the appellant’s attorney in
anticipation of the full
court appeal in which his attention was
drawn to the finding of the trial court that there were no
substantial and compelling circumstances
within the meaning of the
statute. The attorney was accordingly instructed to prepare argument
on the competence of the full court
to increase the sentences for
murder and robbery with aggravating circumstances and the question of
whether the trial court should
not have imposed the statutory minimum
sentences for those offences. The appellant’s attorney replied
at some length to the
letter but he did not raise any question
concerning the awareness of his client or the applicability of the
prescribed sentences
other than in the limited context of the court’s
power to increase the sentences.
[43] In all the circumstances, there
being no countervailing evidence to rebut the inference referred to
in point 4 of the preceding
paragraph, this Court has no sound reason
to infer that any prejudice to the appellant in fact resulted from
the irregularity.
Unfairness in the conduct of the proceedings
remains no more than conjecture. In my view we cannot interfere on so
flimsy a foundation.
____________________
J A Heher
Judge of Appeal
APPEARANCES
FOR APPELLANT: Z Omar
Instructed by:
Zehir Attorneys, Springs;
EG Cooper Majiedt Inc, Bloemfontein.
FOR RESPONDENT: J M Serepo
Instructed by:
Director of Public Prosecutions,
Johannesburg;
Director of Public Prosecutions,
Bloemfontein.