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[2010] ZASCA 71
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Britz v S (613/09) [2010] ZASCA 71; 2010 (2) SACR 524 (SCA) (27 May 2010)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 613/09
In the matter between:
ELLOUISE
BRITZ
Appellant
and
THE
STATE
Respondent
Neutral citation:
Britz v
S
(613/09)
[2010] ZASCA 71
(27 May 2010).
Coram:
CLOETE
et
MLAMBO JJA
et
SALDULKER AJA
Heard:
18 May 2010
Delivered:
27 May 2010
Summary:
Criminal appeal:
Evidence: application to adduce new evidence not available when
appellant sentenced: approach of appeal court.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Eastern Cape
High Court (Grahamstown) (Jansen and
Sandi JJ sitting as court of appeal):
The appeal is dismissed.
______________________________________________________________
JUDGMENT
______________________________________________________________
CLOETE JA (Mlambo JA
et
Saldulker AJA concurring):
[1] On 6 May 2008 in the Eastern Cape Commercial Crimes
Division of the regional court in Port Elizabeth, the appellant, an
adult
female aged 33 years, pleaded guilty to, and was convicted of,
67 counts of fraud. The first fraud was committed in June 2003 and
the last, some three-and-a-half years later in January 2007. The
appellant was employed by a close corporation as a bookkeeper.
She
made electronic transfers of money from the close corporation's bank
account into the account of her husband and she also purchased
goods,
which she appropriated, from suppliers to the close corporation using
the close corporation's money, whilst representing
to the close
corporation and its sole member that the transfers were to settle
debts owed to the close corporation's creditors
and representing to
the suppliers that the goods had been purchased for the close
corporation. The total amount involved was over
R330 000 and
nothing has been voluntarily repaid.
[2] On 9 June 2008, after a correctional supervision
report had been submitted and evidence led from a probation officer
(Ms van
der Mescht), the appellant was sentenced, in a careful
judgment by the regional magistrate, to five years' imprisonment of
which
two years were suspended conditionally for five years. The
appellant served about four-and-a-half months of her sentence and
then
brought an application on notice of motion in the regional court
for condonation and leave to appeal against the sentence; and leave
to place evidence, which was allegedly not available when she was
sentenced, before that court and ultimately the court of appeal.
At
the same time the appellant brought an application for bail pending
appeal. The application was supported by affidavits from
the
appellant, her attorney and her husband, and a report from a
psychologist. The evidence that the appellant sought to adduce
was
that after she had been sentenced, her mother had died and the latter
was therefore not able to give the appellant's children,
a girl born
on 12 April 1993 and a boy born on 29 January 1997, 'the necessary
care, attention and love that they needed whilst
I served my
sentence'. Further, according to the appellant, her husband 'had to
work extra long hours in order to make up for the
loss of income that
I was bringing to the family. As such my husband found it very
difficult to look after the children as he could
not be there when
they returned from school and as my mother was no longer alive.' The
psychologist's report comprised a psychological
assessment of the two
children 'because of the change in their personal circumstances after
the incarceration of their mother and
the recent death of the
grandmother' and concluded: 'The family is in desperate need for a
mother to take charge again of the emotional
and physical wellbeing
of the family. The children are not neglected but their emotional
needs for a mother are great and much
needed'. The submission in the
affidavit by the appellant, and the submission on appeal, was that
although the sentence was not
inappropriate when it was imposed, the
interests of the children should lead a court of appeal to substitute
a non-custodial sentence.
The magistrate granted condonation and
leave to appeal and ordered the appellant's release on bail.
[3] In the court a quo (Jansen J, Sandi J concurring)
the application and appeal were dismissed but that court (Jansen J,
Froneman
J concurring) subsequently granted leave to appeal to this
court. The basis of the judgment in the court a quo dismissing the
appeal
was that an appeal must be decided on the basis of facts in
existence at the time the appellant was convicted or sentenced; that
there are no exceptions to this rule; and that where an appellant
wishes to rely on facts which came into existence after sentence
was
imposed, the proper remedy is not to appeal but to approach the
executive authority. The court went on to point out that the
Criminal
Procedure Act
1
provides for the conversion of a sentence of imprisonment to a
sentence of correctional supervision. The court a quo therefore
did
not consider the merits of the application to lead further evidence
on appeal, although the court in its judgment granting
leave to
appeal considered that this court might do so because the interests
of children were involved
[4] The power of a high court sitting as a court of
appeal from a decision in the magistrate's court to hear further
evidence derives
from both the Criminal Procedure Act and the Supreme
Court Act.
2
Section 309(3) of the Criminal Procedure Act provides that a
provincial or local division sitting as a court of appeal shall 'have
the power referred to in s 304(2)' and paragraph (b) of that section
in turn provides that 'such court may at any sitting thereof
hear any
evidence and for that purpose summon any person to appear and to give
evidence or to produce any document or other article'.
Section 22 of
the Supreme Court Act, which in terms also applies to this court,
provides that:
'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. . .
.'
This court has itself heard evidence on appeal ─
in
R v Carr
3
the court apparently over a period of four days heard the evidence of
as many medical doctors (two for the appellant, two for the
State)
and itself evaluated the conflicting evidence they gave, because it
considered that this was 'the course best calculated
to achieve the
due and expeditious administration of justice in the present case,
the decision of which it was obviously most undesirable
to delay. . .
.'
4
(The appellant had been sentenced to death.) However, as pointed out
in
S v De Jager
5
the usual course, if a sufficient case has been made out, is to set
aside the conviction and/or sentence and send the case back
for the
hearing of further evidence, with a suitable order
6
to guide the court that will hear the evidence. Such a course would
be unnecessary where the evidence contained in the affidavit
made in
support of the application to receive it is accepted by the State (as
in
S v Michele & another
7
)
or is incontrovertible (as in
S v Karolia
8
and
S v Jaftha
9
).
[5] Despite the wide wording of the statutory
provisions, this court has laid down requirements which must be
complied with before
it would be prepared to hear evidence on appeal.
Those requirements were summarised in
S v De
Jager
,
10
have been 'applied in countless cases since',
11
and are as follows:
'(a) There should be some
reasonably sufficient explanation, based on allegations which may be
true, why the evidence which it sought
to lead was not led at the
trial.
(b) There should be a
prima
facie
likelihood of
the truth of the evidence.
(c) The evidence should be
materially relevant to the outcome of the trial.'
The same requirements apply equally to any court sitting
as a court of appeal:
S v A
.
12
In addition, the general rule
13
is that an appeal court will decide whether the judgment appealed
from (and that includes a judgment on sentence)
14
is right or wrong according to the facts in existence at the time it
was given, not according to new circumstances subsequently
coming
into existence. Nevertheless, this court has previously indicated
that the rule is not necessarily invariable
15
and the rule has recently been relaxed to allow evidence to be
adduced on appeal of facts and circumstances which arose subsequent
to the sentence imposed, where there were exceptional or peculiar
circumstances present:
S v Karolia
;
16
S v Michele
;
17
S v Jaftha
,
18
and also where there were misdirections by the court which imposed
sentence, which had the effect that the appeal court was at
large to
impose the sentence it considered appropriate:
S
v Barnard
.
19
(It is not necessary for present purposes to consider whether this
latter situation should be subject to particular safeguards
to
prevent an abuse of the appeal procedure.) The more liberal approach
by this court, shown by a comparison of the decision in
Verster
20
(where the court refused to take into consideration a delay in the
hearing of an appeal as a reason for altering a sentence imposed
by a
magistrate) and the decision in
Michele
(where
such evidence was taken into account and the sentence reduced), must
not be interpreted as a willingness to open the floodgates.
In cases
such as the present where the facts and circumstances arose after
sentence, the application must be carefully scrutinized
to ascertain
whether it does indeed disclose exceptional or peculiar
circumstances. It is undesirable to attempt to define these
concepts
further.
[6] Apart from scrutinizing applications to ascertain
whether they pass the exceptional or peculiar circumstances test, and
in common
with previous decisions of this court dealing with the
circumstances under which a court of appeal would be prepared to hear
new
evidence in existence at the time of the trial, two further
requirements must be complied with, being those set out in paragraphs
(b) and (c) in
De Jager
quoted in para 5 above.
[7] The first additional requirement ─ that there
should be a prima facie likelihood that the evidence is true ─
did
not arise for consideration in
Karolia
,
where the facts which arose subsequent to the imposition of sentence
were described as 'unquestionable';
21
or in
Michele
where
the six-year delay fell into the same category; or in
Jaftha
,
where Lewis JA was at pains to emphasize
22
that the State did not question the truth of the allegations made by
the appellant. It was inter alia for that reason that Lewis
JA
decided in the latter case that there was no point in referring the
matter back to the trial court to hear evidence.
23
Ordinarily, if the new evidence is accepted, there is no reason why
the matter should be referred back as an appeal court can itself
impose an appropriate sentence, taking into account the new evidence,
as happened in
Karolia
,
Michele
and
Jaftha
.
It is not the usual practice of this court, or of high courts sitting
as courts of appeal,
24
to refer a matter back for re-imposition of sentence if a
misdirection is discovered; and in the interests of saving
unnecessary
delay and expense, this approach should apply equally
where evidence which is admitted by the State is allowed on appeal.
But where
there is a dispute, or where the State wishes to challenge
the evidence by cross-examination or to lead rebutting evidence,
different
considerations apply. It is notable that Schreiner JA in
Goodrich v Botha & others
,
25
quoted and followed in
Karolia
,
26
only considered cognisance of subsequent events by a court of appeal
'where, for example, their existence was unquestionable or
the
parties consented to the evidence being so used'. But the right to
hear evidence (in terms of the Criminal Procedure Act) and
the right
to receive further evidence or to remit the case for further hearing
(in terms of the Supreme Court Act) are not qualified
or made subject
to any limitations. And in my view the policy reasons that underly
the justifiable reluctance of appeal courts
to receive evidence of
events on appeal
27
would not be compromised if, in the very limited circumstances set
out in this judgment, an appeal court were to set aside the
sentence
and remit the matter to the trial court with directions as to the
hearing of further evidence which the appellant, the
State or the
court might wish to adduce. Such a procedure has been followed by
this court from as early as 1935 in
R v
Mhlongo & another
28
in cases where the further evidence subsequently obtained casts doubt
on whether there should have been a conviction; and I see
no
difference in principle between that type of case and a case such as
the present.
[8] So far as the 'materially relevant' consideration is
concerned, the appeal court should only allow the evidence tendered
if
satisfied that there is at least a probability, not merely a
possibility, that the evidence, if accepted, would affect the outcome
(
R v Weimers & others
)
29
─ in casu, whether the evidence warrants interference with the
sentence. In my view the evidence would not have to be decisive.
The
dicta to the contrary in English decisions referred to by Schreiner
JA in
Weimers
30
date from a time when courts of appeal were most reluctant to allow
evidence on appeal in criminal matters and before the position
was
regulated by statute.
31
[9] In the present matter, the appellant fails at every
hurdle. It is convenient to deal with the three requirements for
admission
of evidence on appeal in a case such as the present which I
have set out above, in reverse order.
[10] First, the evidence is not materially relevant. The
unchallenged evidence given by the probation officer, Ms van der
Mescht,
was that the appellant herself had told her that her husband
would be responsible for looking after the children if she were not
able to do so; and the probation officer said that the appellant's
mother was apparently very ill so she would not have been in
a
position to care for the children. The appellant was accordingly
sentenced on the basis that her mother would not have been of
assistance in caring for the children. The magistrate said:
'Die kinders is 'n probleem en
dit gee altyd vir ons, wat veral dames voor ons het om te vonnis,
hoofbrekens. Die Grondwet bepaal
aan die eenkant dat die belange van
die kinders vooropgestel moet word wanneer hulle belange betrokke is
by enige iets, soos in
hierdie tipe geval. Gelukkig in hierdie
situasie is daar 'n ander ouer wat byderhand is en wat die ouerlike
werk kan behartig.'
But that apart, even if the evidence which the appellant
seeks to place before the court (summarised in para 2 above) were to
be
accepted, it would, for the reasons which immediately follow, make
no difference.
[11] The magistrate, with obvious regret, concluded that
a sentence of direct imprisonment was the only appropriate sentencing
option
(although he suspended two of the five years' imprisonment
which he imposed specifically because the appellant's children were
young, so that her absence from them would not be, as he put it,
unnecessarily long). I agree that direct imprisonment was the only
legitimate option which could have been considered. The appellant was
a first offender. Apart from that, there is very little that
can be
said in her favour. She pleaded guilty, but that fact is not
necessarily an indication of remorse as where there was a paper
trail
as there must have been in this case, she would have had little
option. The uncontested evidence of the sole member of the
close
corporation was that the appellant's confession to him some 14 days
after she had resigned was due to the fact that her fraudulent
scheme
was going to be uncovered anyway; and that the amount she confessed
to was far less than the actual amount involved. She
was furthermore
in a position of trust; the offences were committed over a fairly
long period of time (three-and-a-half years);
a substantial sum of
money was involved (over R330 000); and nothing has been repaid
voluntarily (a sale in execution of the
appellant's goods realised
only R4 950 and the cost of the proceedings amounted to just
less than R10 000). The appellant
also implicated a co-employee
who could have lost his job. She entered appearance to defend the
civil proceedings instituted against
her by the close corporation.
She threatened the member of the close corporation that she would
report him to the SARS and expose
an insurance fraud should he (as he
put it) not 'back off'. She was motivated by pure greed ─ she
wished to maintain a standard
of living above the family's means. And
she continued to defraud the close corporation when she knew that its
business was suffering
financially to the extent that employees,
including her own brother, were being laid off in consequence of the
frauds she continued
to commit. In addition the sole member of the
close corporation was obliged to extend the close corporation's
overdraft and to
borrow money from his brother and his mother to meet
the payroll.
[12] In
S v M (Centre of Child
Law as
amicus curiae
)
32
Sachs J, writing for the majority of the Constitutional Court, said:
'There is no formula that can
guarantee right to results. However, the guidelines that follow
would, I believe, promote uniformity
of principle, consistency of
treatment and individualisation of outcome.
. . .
(c) If on the
Zinn-
triad
33
approach the appropriate sentence is clearly custodial and the
convicted person is a primary caregiver, the court must apply its
mind to whether it is necessary to take steps to ensure that the
children will be adequately cared for while the caregiver is
incarcerated.
. . .
(e) Finally, if there is a range
of appropriate sentences on the
Zinn
approach, then the court must use the paramountcy principle
concerning the interests of the child as an important guide in
deciding
which sentence to impose.
. . .
A balancing exercise has to be
undertaken on a case-by-case basis. It becomes a matter of context
and proportionality. Two competing
considerations have to be weighed
by the sentencing court.
The first is the importance of
maintaining the integrity of family care.
. . .
The second consideration is the
duty on the State to punish criminal misconduct. The approach
recommended . . . makes plain that
a court must sentence an offender,
albeit a primary caregiver, to prison if on the ordinary approach
adopted in
Zinn
a custodial sentence is the proper punishment. The children will
weigh as an independent factor to be placed on the sentencing
scale
only if there could be more than one appropriate sentence on the
Zinn
approach, one of which is a non-custodial sentence. For the rest, the
approach merely requires a sentencing court to consider the
situation
of children when a custodial sentence is imposed and not to ignore
them.'
For these reasons the evidence which the appellant seeks
to place before the court is not materially relevant as it would not
result
in a non-custodial sentence being substituted.
[13] Second, the application does not satisfy the
requirement that there should be a prima facie likelihood of the
truth of the
evidence. When leave to appeal was sought in the
magistrate's court, counsel representing the appellant (who is not
the same counsel
who argued the appeal before this court) submitted
that because the State had not filed opposing affidavits, it was
bound by the
allegations made in the appellant's affidavit, and
counsel for the State appearing in those proceedings accepted this
submission.
The argument is quite wrong. There is a difference
between the evidence of the probation officer, Ms van der Mescht
34
and the appellant's affidavit,
35
in regard to whether the appellant's mother was in a position to look
after the children. To give the appellant the benefit of
the doubt,
Ms van der Mescht may have been dealing with the appellant's mother's
ability to care for the children physically whilst
the appellant may
have been dealing only with the ability to take care of their
emotional needs. But there are other discrepancies.
The appellant
says in her affidavit that:
'[M]y husband found it very
difficult to look after the children as he could not be there when
they returned from school and as
my mother was no longer alive. The
two children had to look after themselves whilst alone at home. This
basically meant that my
15 year old daughter had to act as a mother
to my 11 year old son and, inter alia, cook for him and ensure that
he does his homework
etc. and look after him whilst my husband is
working late hours. . . . I am worried that something is going to
happen to [my children]
being such young children left on their own.
There is absolutely no-one in the area whom my husband or I can call
on to assist
us to look after the children whilst my husband works
these lengthy hours.'
But according to the psychologist's report, there is a
domestic worker employed by the appellant's husband full time during
the
week. In addition, it appears from the affidavit of the
appellant's husband that her father lives at home and that although
he
is employed full time (by a security company), he is only 63 years
old. There seems to be no good reason why he cannot be of physical
assistance in the evenings and over the weekends even if, as the
appellant's husband said, he is heavily in mourning and not much
company to the children. The appellant has accordingly not produced
evidence that is probably true in regard to the physical needs
of the
children. I shall deal with their emotional needs immediately below.
[14] Then finally, there are no exceptional or peculiar
circumstances present which would justify reception of the evidence.
The
fact that the appellant's mother could not act as a physical
caregiver for the children was an existing fact when sentence was
passed, not a consequence of her death thereafter. No doubt, as
counsel who argued the appeal before us emphasized, the children
were
left in an emotional void once their mother, and shortly thereafter
their grandmother, was no longer part of the household.
As the father
put it, 'they are "lost at sea" at present. They are
exceptionally emotional with the loss of their beloved
grandmother
and appear to me to be lost at times, bearing in mind that I (their
father) are not able to be present in the house
as often as I was in
the past.' One has the greatest sympathy for the children but their
emotional needs cannot trump the duty
on the State properly to punish
criminal misconduct where the appropriate sentence is one of
imprisonment. As Sachs J said in
S v M
:
36
'[S]eparation from a primary
caregiver is a collateral consequence of imprisonment that affects
children profoundly and at every
level. Parenting from a distance and
a lack of day-to-day physical contact places serious limitations on
the parent-child relationship
and may have severe negative
consequences. The children of the caregiver lose the daily care of a
supportive and loving parent,
and suffer a deleterious change in
their lifestyle. Sentencing officers cannot always protect the
children from these consequences.
They can, however, pay appropriate
attention to them and take reasonable steps to minimise damage. The
paramountcy principle, read
with the right to family care, requires
that the interests of children who stand to be affected receive due
consideration. It does
not necessitate overriding all other
considerations. Rather, it calls for appropriate weight to be given
in each case to a consideration
to which the law attaches the highest
value, namely, the interests of children who may be concerned.'
In the present matter, as I have said, the magistrate
specifically suspended two years of the sentence imposed because of
the interests
of the children. And if it be accepted that the
appellant's husband has to work long hours to make up for the income
lost in consequence
of the appellant's imprisonment, that is exactly
what one would expect. Nor can the appellant legitimately contend
that her sentence
should be reduced on appeal (as was done in
Michele
)
37
or that a non-custodial sentence should be substituted for the
remainder of the period of imprisonment imposed (as was done in
S
v M
)
38
because of the delay in her completing her sentence and the
undesirability of sending a person back to jail. Of course it is
harsh
to send a person back to jail, particularly a mother who has no
doubt re-bonded with her family, and her family with her. But the
process which led to the appellant's temporary release was not only
initiated by her, it had no prospect of success. The decision
of the
Constitutional Court in
S v M
was published in the law reports a year before the date on which the
appellant deposed to her affidavit. In the circumstances it
would be
quite wrong to allow the appellant to benefit from these
ill-conceived proceedings and escape the consequences of what,
it is
common cause between the appellant and the State, was a fair
sentence.
[15] Before making the appropriate order, I would
emphasize that the procedure in terms of s 276A of the Criminal
Procedure Act,
which would enable the appellant's sentence to be
reconsidered by the magistrate at the instance of the Commissioner or
a parole
board, remains open.
39
That section provides:
'(3)(a) Where a person has been
sentenced by a court to imprisonment for a
period ─
(i) not exceeding five years; or
(ii) exceeding five years, but
his date of release in terms of the provisions of the Correctional
Services Act 8 of 1959, and the
regulations made thereunder is not
more than five years in the future,
and such a person has already
been admitted to a prison, the Commissioner or a parole board may, if
he or it is of the opinion that
such a person is fit to be subjected
to correctional supervision, apply to the clerk or registrar of the
court, as the case may
be, to have that person appear before the
court a quo in order to reconsider the said sentence.'
The views expressed in this judgment are in no way a bar
to that procedure being followed as some additional and different
considerations
apply and the enquiry is not the same as that in the
present appeal.
[16] The appeal is dismissed.
_______________
T D CLOETE
JUDGE OF APPEAL
APPEARANCES:
APPELLANTS: E Kammies
Instructed by Lee Strydom Fourie Inc, Port Elizabeth
Hill McHardy & Herbst Inc, Bloemfontein
RESPONDENTS: Ms U L de Klerk
Instructed by The Director of Public Prosecutions,
Grahamstown
The Director of Public Prosecutions, Bloemfontein
1
Act 51 of
1977.
2
Act 59
of 1959.
3
1949 (2) SA 693
(A).
4
At 700.
5
1965 (2) SA 612
(A) at 613A.
6
See the order in
S v
Wilmot
2002 (2) SACR 145
(SCA) at
159d-g and the orders in the cases referred to at 159d.
7
2010 (1) SACR 131
(SCA).
8
2006 (2) SACR 75
(SCA).
9
2010 (1) SACR 136
(SCA).
10
1965 (2) SA 612
(A).
11
Per Smalberger JA in
S
v H
1998 (1) SACR 260
(SCA) at 262i.
12
1990 (1) SACR 534
(C) at 540c-d.
13
R v Verster
1952
(2) SA 231
(A) at 236B;
R v Jantjies
1958 (2) SA 273
(A) at 279C-D and
Attorney-General,
Free State v Ramokhosi
1999 (3) SA 588
(SCA) para 8 at 593D-F.
14
R v Hobson
1953
(4) SA 464
(A) at 465H-466B and 466F-G;
S
v Barnard
2004 (1) SACR 191
(SCA) para
19.
15
S v Immelman
1978 (3) SA 726
(A) at 730H;
S v Marx
1989 (1) SA 222
(A) at 226C.
16
Above, n 8.
17
Above, n 7.
18
Above, n 9.
19
Above, n 14, paras 19 tot 21 and p 197h-i.
20
Above, n 13.
21
At 93i-94a.
22
Para 16 at 139f-g, para 19 at 140d and para 20 at
140e.
23
Para 20.
24
The practice in the Constitutional Court appears
to be different :
S v M (Centre of
Child Law as
amicus curiae)
[2007] ZACC 18
;
2007 (2)
SACR 539
(CC) para 49.
25
1954 (2) SA 540
(A) at 546B-C.
26
Above, n 8 para 36 at 93g and 93 in fine-94a.
27
See
S v De Jager
above, n 5 at 613A-C;
R v Jantjies
above, n 13 at 279D-E.
28
1935 AD 133.
29
R v Weimers & others
1960 (3) SA 508
(A) at 514F-515B and 515G.
30
At 515A-D.
31
For the present position in England see
Halsbury's Laws of England
(4
th
ed) vol 11(4) para 1867.
32
Above, n 24 paras 36-39.
33
S v Zinn
1969
(2) SA 537
(A) at 540G-H.
34
Para 10 above.
35
Para 2 above.
36
Above, n 24 para 42.
37
Above, n 7 para 13. See also
S
v Roberts
2000 (2) SACR 522
(SCA) para
22.
38
Above, n 24 paras 57 to 76. See also
Karolia
above, n 8 paras 38 and 39.
39
Cf
S v M
above, n 23 para 65.