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[2010] ZASCA 49
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Steyn v S (444/09) [2010] ZASCA 49 (31 March 2010)
THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 444/09
Mavis Pemella Steyn
Appellant
and
The State Respondent
Neutral citation:
Steyn
v The State (444/09)
[2010] ZASCA 49
(31 March 2010)
Coram:
Nugent JA, Griesel et
Majiedt AJJA
Heard:
10 March 2010
Delivered:
31
March 2010
Summary:
Appeal against
refusal of a petition for leave to appeal against sentence â
procedural irregularity and shortcomings in respect
of the provisions
contained in s 309B(5)(c)(ii) and
s 309B(6)
of the
Criminal
Proceudre Act, 51 of 1977
â no reasonable prospects of success in
an envisaged appeal against sentence.
ORDER
On appeal from: Free State High Court, Bloemfontein
(Kruger and Van Zyl JJ sitting as court of appeal).
The application for leave to appeal against the refusal
of the appellant's petition in the court below is dismissed.
JUDGMENT
MAJIEDT AJA (Nugent JA and Griesel AJA
concurring)
[1] The appellant, Ms Mavis Pemella Steyn, was convicted
on her plea of guilty in the regional court on charges of forgery,
uttering
and fraud. Counts one and two (forgery and uttering) were
taken together for sentencing purposes and she was sentenced to two
years'
imprisonment, conditionally suspended for five years. On count
three (fraud) the appellant was sentenced to five years' imprisonment
in terms of s 276(1)(i) of the Criminal Procedure Act, 51 of 1977
(the Act). This appeal is against the sentence imposed.
[2] After leave to appeal had been refused by the trial
court, the high court (Van Zyl J and Voges AJ) granted leave to the
appellant
to lead the further evidence of a social worker on sentence
(this application to lead further evidence was filed together with a
petition for leave to appeal). The matter was remitted to the trial
court in terms of s 309C(7)(d) of the Act to receive the further
evidence.
[3] The evidence of the social worker, Dr C C Wessels,
was heard by the trial court in terms of s 309B(5)(c)(i) of the Act.
No recordal
of the trial court's findings and views relating to that
evidence was made, as is required in s 309B(5)(c)(ii) (the further
evidence
recordal).
1
[4] The petition and the further evidence of Dr Wessels
served before Kruger and Van Zyl JJ (Voges AJ was unavailable at that
time).
Leave to appeal was refused by the learned judges.
[5] An application for leave to appeal the refusal of
the petition was thereafter filed by the appellant. On the day before
the hearing
thereof, the further evidence recordal was filed at the
registrar of the high court. At the hearing the prosecutor submitted
that
the interests of justice required that the sentence be set aside
and remitted to the trial court for reconsideration. Kruger J (van
Zyl J concurring) considered the high court to be
functus
officio
and granted leave to appeal to this
court.
[6] It is plain from the aforegoing exposition that the
high court had considered the petition and dr Wessels' further
evidence without
the further evidence recordal before it. This is an
irregularity, since s 309B(6) provides that any further evidence
received under
s 309B(5) shall for purposes of an appeal be deemed to
be evidence taken or admitted at the trial. The further evidence
would in
my view also in terms of this deeming provision have to be
regarded as part of the evidence in a subsequent petition for leave
to
appeal. Section 316(5)(c)(ii) and (6) contain similarly worded
provisions in respect of the further evidence recordal in proceedings
in the high court as court of first instance. Section 309B(5)(c)(ii)
is couched in peremptory terms. The further evidence recordal
contemplated in this section can conceivably play an important role
in the determination of an appeal (or petition for leave to appeal),
as it contains the trial court's views on the quality of the further
evidence before it (having seen the witness/es itself).
2
The aforementioned irregularity is not fatal for reasons that will
become apparent.
[7] The further evidence recordal in the present matter
is rather cryptic and does not in my view comply with the prescripts
of s
309B(5)(c)(ii). It reads as follows:
'Daar was gehandel in terme van
Artikel 309B(5)(c) Wet 51/77. Vir sover dit subartikel (ii) van
bogenoemde artikel betref blyk dit
uit die aanklaer se
kruisondervraging presies wat die getuie se bevoegdheid behels vir
sover dit gegaan het rondom haar verslag.
Rondom haar
geloofwaardigheid het ek niks by te voeg nie. Uit haar getuienis en
kruisondervraging blyk dit dat sy nie oor dieselfde
ondervinding
beskik as Mevrou Viljoen nie. Ek het niks by te voeg nie'.
No finding was made by the trial court on the cogency
and sufficiency of the further evidence, as is required by the said
provision.
[8] Despite the procedural irregularity and shortcomings
set out above, this matter can and ought to be disposed of by this
court.
We have before us an appeal against the refusal of the high
court to grant leave to appeal against sentence. We must therefore
consider
whether there is a reasonable prospect of success in the
envisaged appeal against sentence. The issue is accordingly whether
leave
to appeal should have been granted by the high court and not
the appeal itself.
3
The procedural shortcomings relate, inter alia, to the lack of the
trial court's recordal of its views and findings on the cogency
and
sufficiency of the further evidence of an expert witness on sentence,
the social worker, Dr Wessels. This further evidence is
before us and
we are in no worse a position to consider the cogency and sufficiency
of that evidence ourselves, than we would have
been if the further
evidence recordal had been properly made. Credibility and demeanour
findings are of less importance in the case
of expert evidence on
sentence than in the case of, say, eyewitness evidence on the merits.
Moreover, demeanour has a lesser role
to play in assessing the
cogency of evidence than the content of the evidence itself.
4
In the present case there is nothing to suggest that Dr Wessels was
anything but honest.
[9] The appellant committed the offences whilst employed
at a firm of insurance brokers. During December 2005 she falsified a
valuation
certificate in respect of a wristwatch and a ring by
altering it to a certificate in respect of a ring only. She also
effected a
further alteration thereto by substituting her own name
for that of the true owner. During January 2006 she lodged a claim
for the
loss of the ring with Mutual & Federal Insurance, but the
claim was not met. The potential loss to the insurance company was
R42 000.
[10] The appellant was 30 years old at the time of
sentencing. She is married with two children of 2 and 5 years old
respectively.
She was employed and earned R2 500 per month. Her
employers were prepared to re-employ her should she receive a short
term of imprisonment.
She had a previous conviction for fraud, also
committed in the course of her employment with a previous employer.
She received a
suspended sentence of imprisonment on condition, inter
alia, that she compensate the complainant by regular monthly
payments. It
is common cause that the appellant is in default with
these payments.
[11] The appellant testified in mitigation of sentence.
The State adduced the evidence of Ms Marinda Viljoen, a probation
officer
in the employ of the Department of Correctional Services. Her
written report was also handed in. As stated above, the further
evidence
of Dr Wessels, a social worker, was presented later in the
proceedings by the defence.
[12] The appellant's testimony concerned her childhood,
employment history and her family circumstances. She also testified
about
her present and past conviction. The appellant grew up in very
difficult circumstances in a home where an abusive father caused
great
disharmony in the family. Her father abused alcohol and, when
intoxicated, routinely battered his spouse and young children. The
unhappy marriage inevitably ended in divorce. The appellant was
compelled to leave school at a young age while in standard 6 (grade
8
in today's nomenclature), to seek employment to augment the family's
modest income. In her evidence the appellant sought to explain
away
the recurring problems she experienced in her employment career of
being accused of theft or fraud by her various employers.
[13] The two pre-sentence reports compiled by Ms Viljoen
and Dr Wessels differ markedly in their assessment of the appellant.
Ms Viljoen's
report and evidence portrayed the appellant as
manipulative, dishonest, greedy, sly, immature and a troublemaker.
This information
was gleaned mostly from appellant's previous
employers and from her husband's family. It bears mention that Ms
Viljoen did not interview
the appellant's own mother. Dr Wessels, on
the other hand, sketched a far more positive image of the appellant,
emphasizing her troubled
upbringing and highlighting the appellant's
concerted efforts to provide for her family. Dr Wessels made the
startling observation
that the appellant's husband's family had
admitted to Dr Wessels that they had conveyed untruths concerning the
appellant to Ms Viljoen.
As confirmation of this, Dr Wessels
indicated to the trial court that, at her request, the appellant's
mother-in-law was present
at court to testify in corroboration of
these allegations. As it turned out, the appellant's mother-in-law
did not testify. Dr Wessels
had also conducted an interview with the
appellant's mother.
[14] It is not necessary to resolve the striking
dichotomy between these two pre-sentence reports. It can be accepted
that the appellant
has had a troubled childhood, has struggled to
make ends meet, is a caring and devoted spouse and mother and has by
and large sought
to obtain gainful employment to help make ends meet
at home. But a consideration of the gravity of the offence, taking
into account
that the appellant had, as before, again abused a
position of trust in her employment situation, counters her mostly
mitigating personal
circumstances. A further related countervailing
factor is her previous conviction for a similar offence committed in
similar circumstances.
The benefit afforded her on the previous
occasion through a suspended sentence has not had the desired
deterrent effect. Instead
she is in default of the conditions of
suspension as regards her non-payment and repeat offending.
[15] The sentence imposed is in line with sentences
imposed generally for similar offences.
5
There is nothing in the circumstances of this matter with regard to
the appellant or the offence which persuade me that there is
a
reasonable prospect of the high court interfering on appeal with the
sentence imposed. The conditional suspension of the term of
imprisonment on counts 1 and 2 and the term of imprisonment from
which the appellant may be placed under correctional supervision
in
the discretion of the Commissioner or a parole board on count 3,
provides the appellant with another opportunity for rehabilitation
mostly outside prison.
[16] There is no reasonable prospect of success in an
appeal against sentence and the application for leave to appeal
against the
refusal of the appellant's petition in the court below is
dismissed.
_____________
S A MAJIEDT
ACTING JUDGE OF APPEAL
APPEARANCES:
For appellant: R van Wyk
Instructed by:
Naudes Inc, Bloemfontein
For respondent: E Liebenberg
Instructed by:
Direkteur: Openbare Vervolgings, Bloemfontein
1
S 309B(5)(c)(ii) reads as follows:
'(c) The court granting an application
for further evidence must â
(i) . . . .
(ii) record its findings or views with regard to that evidence,
including the cogency and the sufficiency of the evidence, and
the
demeanour and credibility of any witness.'
2
See: Du Toit et al,
Commentary
on the
Criminal Procedure Act
at
31-16.
3
See:
S v Matshona
[2008] 4 All SA 68
(SCA) para 5.
4
Body Corporate of Dumbarton Oaks v Faiga
[1998] ZASCA 101
;
1999
(1) SA 975
(SCA) 101 at 979I-J;
Commercial
Union Insurance Co of SA Ltd v Wallace NO
2004
(1) SA 326
(SCA) at paras 40-42;
Medscheme
Holdings (Pty)Ltd and another v Bhamjee
2005
(5) SA 339
(SCA) at para 14.
5
S v Michele & Another
2010
(1) SACR 131
(SCA)
[2009] ZASCA 116
, para 10 and cases cited there.