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[2022] ZAFSHC 133
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S v Roberto In re S v Cumbe (RC07/2021-RC08/2021) [2022] ZAFSHC 133; 2022 (2) SACR 442 (FB) (9 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES
Of
Interest to other Judges: YES
Circulate
to Magistrates: NO
Review
number:
R10/2022
Regional
Court number:
RC07/2021
In
the special review between:
THE
STATE
and
OSORIO
JUNIOR ROBERTO
Accused
Review
number:
R11/2022
Regional
Court number:
RC08/2021
In
the special review between:
THE
STATE
and
CARTILIO
EUGENIO CUMBE
Accused
CORAM:
DAFFUE J et MOLITSOANE J
JUDGMENT
BY:
DAFFUE J
DELIVERED
ON:
9 JUNE 2022
SPECIAL
REVIEW IN TERMS OF
SECTION 304
OF
THE
CRIMINAL PROCEDURE ACT, 51 OF 1977
[1]
The above two matters came before the High Court on special review.
The two
accused persons were charged separately in the Regional Court
sitting in Ladybrand, each with one count of motor vehicle theft.
On 25 February 2022 they pleaded guilty and on the same day they were
sentenced to six years’ and seven years’ imprisonment
respectively in accordance with the provisions of s 276(1)(i) of the
Criminal Procedure Act 51 of 1977 (“the CPA”).
[2]
Shortly after the proceedings the Honourable Acting Regional Court
Magistrate JJ van
Zyl (“the regional magistrate”)
recognised that the imposed sentences were not competent and/or
according to the law
insofar as he could not sentence the accused
persons to periods in excess of five years’ imprisonment as
provided for in
s 276(1)(i) read with s 276A(2) of the CPA.
Consequently, he sent the matters on special review in terms of s
304(4) and
requested that orders be granted setting aside the
sentences and to remit the matter to him to sentence the accused
persons afresh.
[3]
On receipt of the two review files which were allocated to me for
consideration, I
was quite perturbed when considering the facts and
circumstances of the cases and requested the regional magistrate to
respond
to the following request as set out in my secretary’s
letter dated 22 April 2022:
“
Please take note
that the above two review matters have been allocated to Daffue J for
consideration. Having done so, the
judge seeks more clarity.
Will you kindly convey the following to the Honourable Acting
Regional Court Magistrate and return
the record to him for his
comments.
1.
Section 276A(2) of the Criminal Procedure Act, 51 of 1977 (as
amended) is incorrectly quoted insofar as the reference to
section 77
of the
Child Justice Act, 2008
should be a reference to
section 75
of
that Act. This is irrelevant
in casu
as the accused are
not children - they are 39 and 37 years old respectively.
2.
The following
appears from the records in both matters:
2.1The accused were
represented by the same attorney who drafted statements on their
behalf in terms of
section 112(2)
of the
Criminal Procedure Act on
25
February 2022.
2.2
Both accused admitted to stealing similar vehicles, to
wit Isuzu’s,
parked in the same street in Clocolan on 14 December 2020.
2.3
Both accused admitted that they acted in concert with
another person.
2.4
Both accused admitted that they were on their way to
Johannesburg
with the stolen vehicles.
2.5
Both accused have previous convictions. Roberto
was convicted
of theft in 2012 and for contravention of
section 37
of Act 62 of
1955 in 2016. In the last case a sentence of 6 years’
imprisonment was imposed. Cumbe was convicted
in 2018 of theft
as well as statutory corruption for which he was sentenced to 8
years’ and 5 years’ imprisonment which
was supposed to
run concurrently.
2.6
On the same day, to wit 25 February 2022, the Honourable
Acting
Regional Court Magistrate sentenced the accused to 6 years’ and
7 years’ imprisonment respectively in accordance
with the
provisions of
section 276(1)(i)
of the
Criminal Procedure Act.
3.
>
Did
the Honourable Acting Regional Court Magistrate really intend to
sentence the accused in accordance with
section 276(1)(i)
instead of
section 276(1)(a)?
[Note: the reference to
s 276(1)(a)
is incorrect;
it should be
s 276(1)(b)]
1
.01cm; margin-bottom: 1cm; line-height: 200%">
4. Obviously,
if the sentences were correctly
recorded on the J15 to be in terms of
section 276(1)(i)
, the imposed sentences are not in accordance with
the law and should be set aside.
5.
Both matters will be considered immediately
upon receipt of a
response.”
[4] The
regional magistrate responded on 05 May 2022 as follows and I quote
verbatim
:
“
1.
On 25 February 2022 the prosecutor in both the matters at hand, as
well as the defence attorney, approached myself in chambers and asked
to discuss an informal plea arrangement that the state and
defence
were talking about.
2.
They indicated that because the matters were on the roll since
March
2021 they were looking to come to an agreement in regard to
sentencing if the accused decided to tender a plea of guilty.
3.
It was then suggested by the state and the defence that they
would
like the court to consider a sentence of 5 years imprisonment in
terms of
Section 276(1)
(i) of Act 51 of 1977.
4.
I then asked the prosecutor if the state will be proofing any
Previous convictions against the accused persons, to which the
Prosecutor answered that the state will not proof such. On
that
basis and taking into consideration that the matter was on the roll
since March 2021 and both accused in custody, I agree
to look at such
a Sentence.
5.
I would like to mention that at that stage the court was waiting
for
an interpreter to arrive from Thaba Nchu Court, as the accused
Persons elected to speak Portuguese. When the interpreter
had
still not arrived at court at about 14:45 the defence attorney
informed the court that the accused persons were both able to
understand and speak English and that we may proceed without an
interpreter.
6.
The accused persons pleaded guilty as agreed to by the defence
and
the state and handed in statements in terms of section 112(2) and was
subsequently found guilty on the charges by the court.
At this
stage the prosecutor, to the amazement of the court got up and
proofed previous convictions against the accused persons.
At
this stage the court felt that 5 years imprisonment would not be an
appropriate sentence in light of their previous convictions
and felt
that a longer period of imprisonment would suffice.
7.
I still had in my mind the conversation
with the defence and the
state earlier and went ahead to sentence the accused as set out on
the J15’s in terms of Section
276(1) (i) Act 51 of 1977.
The court at that stage intended to sentence the accused persons in
terms of section 276(1)(i)
of the CPA. After the court
adjourned I realised that I had erred in imposing more than 5 years
imprisonment in terms of
section 276(1) (i) and that the sentences
imposed were clearly not in accordance to the law and that the
matters would have to
be sending on special review.
8.
It is there for my humble submission
that the sentences as imposed is
not accordance to the law and request that the Learned Judge sets
aside the sentences and order
that sentencing should start afresh.
9.
I apologise for the oversight and will
make sure that the same error
will not occur again.”
[5]
It now appears that I was correctly perturbed by the manner in which
the matters were
dealt with. The regional magistrate has set
out his reasons why he agreed to consider sentencing the accused
persons to 5
years’ imprisonment in terms of s 276(1)(i).
The prosecutor and attorney for the accused persons approached the
regional
magistrate in chambers. He was informed that they were
discussing an informal plea and sentence agreement, bearing in mind
that the accused persons had been in custody for nearly a year at
that stage. In terms of the agreement the accused persons
would
plead guilty on condition that the regional magistrate would consider
sentences of 5 years’ imprisonment in terms of
s 276(1)(i).
The regional magistrate was informed by the prosecutor that the State
would not prove previous convictions against
the two accused
persons. The regional magistrate was apparently amenable to act
in accordance with this informal arrangement.
Contrary to the
prosecutor’s assurance in chambers, the State eventually proved
previous convictions of a serious nature
against both accused
persons. At that stage the regional magistrate found himself
bound to sentence the accused persons in
accordance with the
aforesaid sub-section of the CPA. In considering the
seriousness of the offences, he decided to impose
sentences of six
years’ and seven years’ imprisonment respectively which
he could not have done and which he afterwards
accepted was not in
accordance with the law as a maximum period of five years’
imprisonment could have been imposed.
[6]
It is apposite to explain the difference between a
sentence of imprisonment in terms of a 276(1)(b)
and one in terms of
s 276(1)(i). In terms of the first sub-section a court
may sentence an accused to such imprisonment
as the court’s
jurisdiction allows, whilst a court sentencing an accused in terms of
s 276(1)(i) may not impose imprisonment
in excess of five years.
In
S v
Scheepers
[1]
the court held that punishment under s 276(1)(i) should be considered
when a custodial sentence is necessary, but a long period
of
imprisonment is undesirable. The early release of a prisoner is
possible as the prisoner can be placed under correctional supervision
at the discretion of the Commissioner of Correctional Services. The
provisions of the Correctional Services Act
[2]
must be considered. The main difference between the two
sub-sections is the sentenced person’s right to be considered
for an alternative to imprisonment when a sentence in terms of s
276(1)(i) is imposed. Section 73(7)(a) of the Correctional
Services Act (“the CSA”) reads as follows:
“
7
(a)
A
person sentenced to incarceration under
section 276
(1)
(i)
of
the
Criminal Procedure Act, must
serve at least one sixth of his or
her sentence before being considered for placement under correctional
supervision, unless the
court has directed otherwise.”
A
prisoner sentenced to the maximum period of imprisonment under
s
276(1)(i)
is therefore eligible to be considered for placement under
correctional supervision after having served only ten months of his
sentence. Contrary to the treatment afforded a prisoner
sentenced in terms of
s 276(1)(i)
,
s 73(6)(a)
of the CSA stipulates
that persons sentenced to imprisonment in terms of
s 276(1)(b)
must
in principle serve at least one half of their sentences before being
eligible for parole.
[7]
The concept of an informal plea agreement is not a new phenomenon.
In
Van
Heerden v Regional Court Magistrate, Paarl
[3]
the court mentioned that
informal plea bargaining is an everyday experience in our courts.
No doubt, informal plea bargaining
is a useful tool to alleviate
heavy court rolls in especially our lower courts. Usually, the
process provides an opportunity to
a prosecutor to obtain a guilty
plea on a lesser charge in exchange for the possible imposition of a
specific and usually a reduced
sentence. Many examples may be
provided, but to name one, a person charged with driving under the
influence of alcohol may
agree to plead guilty on a charge of
negligent driving and the imposition of a much more lenient sentence
than in the case of drunken
driving. Often prosecutors are
prepared to accept guilty pleas on culpable homicide where murder
charges were levelled at
accused persons and agree not to ask for
long term imprisonment, but for correctional supervision, a fine or
even a suspended sentence.
Problems arise when one of the
parties afterwards alleges a misunderstanding or breach of the
agreement. Matters get
worse when the presiding officer is
either part of the negotiations, or incorrect information was
provided to him/her in chambers
pertaining to what was agreed upon.
[8]
Although informal plea and sentence agreements are relatively common
occurrences,
they have a further disadvantage, other than those
mentioned above, in that the prosecutor and the defence team cannot
enter into
a binding agreement in respect of the sentence to be
imposed without the co-operation of the presiding officer.
[4]
Therefore, plea bargaining has several pit-falls. In the
previous paragraph I mentioned the possibility of a misunderstanding
– these agreements are most of the time verbal agreements
entered into in haste and whilst the court proceedings are about
to
start - or alleged breach of the agreement by one of the parties.
The factual dispute that occurred in
Van
Heerden
is
an example of what could transpire if appropriate attention is not
given to detail and precise recording of an informal agreement.
In
that case it was alleged on behalf of the accused that the prosecutor
had undertaken to support a request for a
non-custodial sentence, but
contrary thereto, she eventually made submissions in aggravation of
sentence.
[5]
Although the
prosecutor may undertake to ask for a lenient sentence, the presiding
officer may decide to impose a harsher
sentence. It is trite
that the parties (the prosecutor in particular) are bound by an
informal plea agreement, but they cannot
foresee how the presiding
officer may exercise his/her discretion relating to sentence, unless
he/she has become a party to the
agreement which is in my view would
be unacceptable and should be avoided.
[9]
Section 105A
was introduced by the Legislature to provide for a
formal plea and sentence agreement procedure and to minimise problems
with informal
plea agreements, although it is a cumbersome procedure.
I do not intend to summarise
s 105A
, but briefly refer to the
following insofar as it would have been relevant
in casu
.
The prosecutor must consult
inter alia
with the Investigating
Officer and the complainant (or his representatives such as the
family in the event of death) and he/she
must also consider the
previous convictions, if any, and the interest of the community. The
negotiations do not include the presiding
officer and once an
agreement is reached, it must be reduced to writing and contain all
relevant information as required by the
section, including previous
convictions. If the presiding officer is of the opinion that
the sentence agreed upon is unjust,
the parties are informed
accordingly and also which sentence is considered just. The
parties may either abide by the agreement,
subject to the right to
lead evidence and present argument pertaining to sentence, or
withdraw from it. If they withdraw
from the agreement, the
trial shall start
de novo
before another presiding officer,
provided that the accused may waive his right to be tried by another
presiding officer. Obviously,
if the legal representatives
followed
s 105A
procedure
in casu
, the presiding officer would
not have been involved in any prior negotiations and the previous
convictions would have been on record
at the stage when the
agreements were to be considered in open court.
[10]
Arguments by academics
[6]
that
s 105A
procedure
is too time-consuming and sets insurmountable barriers do not hold
water if the certainty obtained is taken into consideration.
The Supreme Court of Appeal has stated on several occasions that the
plea bargaining mechanism provided for in
s 105A
should be
encouraged.
[7]
Plea
bargaining still takes place, but once the agreement is formalised
and all stakeholders’ rights have been taken
into
consideration, it is duly considered by the presiding officer who
should only finalise the process if there was due compliance
with the
strict requirements of the section and if he/she is satisfied with
the sentence agreed upon.
[11]
Informal plea bargaining has its place in respect of trivial crimes,
but again, the presiding
officer shall not become embroiled in the
negotiations. Digested court rolls may be alleviated by
“settling”
criminal disputes in this manner. The
factual dispute that has arisen in
Van Heerden supra
shall
never be forgotten.
In casu,
I foresee that the relevant
role players will not be speaking from the same mouth. They
will have to be subjected to cross-examination
to establish the
truth. I can imagine that the prosecutor would not want to be
heard that he had misled the presiding officer.
[12]
Having taken notice of the differences between the aforesaid two
sub-sections of
s 276
, it is time to consider the previous
convictions proven by the State. These are as follows:
12.1
In respect of accused Osorio Junior Roberto:
12.1.1
theft committed on 8 February 2012 to which he was sentenced to
R3000.00 or six months’
imprisonment, together with a further
period of imprisonment of twelve months suspended
in toto
on
certain conditions for a period of three years;
12.1.2
transgression of
s 37
of Act 62 of 1955 on 30 March 2016 in respect
of which he was sentenced to 6 years’ imprisonment.
12.2 In
respect of accused Cartilio Eugenio Cumbe:
12.2.1
theft committed on 23 December 2017 for which he was sentenced to
eight years’ imprisonment;
12.2.2
contravention of the Prevention of Corruption Act, 6 of 1958 for
which he was sentenced to
five years’ imprisonment, which
sentence had to be served concurrently with the sentence mentioned
above. [Note: It
should be recorded that Act 6 of 1958 was
repealed in 1992, whilst the 1992 Act was again repealed by the
present Act, to wit the
Prevention and Combatting of Corrupt
Activities Act, 12 of 2004.]
[13]
The regional magistrate is correct that the imposed sentences are not
in accordance with the
law and consequently, both these sentences
should be set aside. The crucial question to be considered is
whether the matters
should be referred back to the court
a quo
to sentence the accused persons afresh. In my view
irregularities occurred which cannot be rectified. I explain in
the next paragraph.
[14]
The accused persons’ right to fair trials has been
transgressed.
[8]
In
casu
the
sentences imposed upon the accused persons are in excess to those
agreed upon by their legal representative and the prosecutor
on the
basis that no previous convictions would be proven and which the
regional magistrate was prepared to consider in terms of
s
276(1)(i). Whether a misrepresentation was made by the
prosecutor, or whether there was no meeting of the minds between
the
parties – a misunderstanding - the accused persons shall
not be kept to their bargain. The irregularities
in the conduct
of the trials – to prove previous convictions after confirming
during plea bargaining that none would be proven
– are such
that a failure of justice has occurred of such a nature to vitiate
the trials. As the full bench has reminded
us, one of the
elements of the notion of basic fairness and justice is that the
State shall be held to a plea bargaining agreement.
[9]
The only fair and logical outcome of the predicament being faced is
to review and set aside the whole proceedings in both
matters.
The accused persons shall be arraigned again and will have the right
to decide how to approach their defence.
ORDERS
[15]
Consequently the following orders are made:
In
respect of Osorio Junior Roberto
:
1.
The proceedings in the Regional Court in case
RC07/2021 are reviewed
and set aside;
2.
The conviction of the accused person,
Osorio Junior Roberto and
the sentence imposed on him on 25 February 2022 are reviewed and set
aside;
3.
the matter is referred back to the Regional
Court for the accused’s
trial to start
de novo
before a different presiding officer.
In
respect of Cartilio Eugenio Cumbe
:
1.
The proceedings in the Regional Court in case
RC08/2021 are reviewed
and set aside;
2.
the conviction of the accused person, Cartilio
Eugenio Cumbe and the
sentence imposed on him on 25 February 2022 are reviewed and set
aside;
3.
the matter is referred back to the Regional
Court for the accused’s
trial to start
de novo
before a different presiding officer.
J.P.
DAFFUE J
I
concur
P.E.
MOLITSOANE J
[1]
2006 (1) SACR 72
(SCA) and see in general: SS Terblanche,
A
Guide to Sentencing in South Africa
,
3
rd
ed pp 285 - 288
[2]
111 of 1998
[3]
(883/2015)
[2016] ZASCA 137
(29 September 2016) at para 17 and
S v
Phika
2018
(1) SACR 392
(GJ) at para 17
[4]
Van
Heerden loc cit
at
para 17
[5]
Ibid
para 22; see also
S
v Phillips
2018
(1) SACR 284
(WCC), a case where factual disputes occurred
[6]
P du Toit, Informal plea bargaining, 2018 SACJ 282
[7]
S
v DJ
2016
(1) SACR 377
(SCA) at para 17
[8]
Section
35(3) of the Constitution of the Republic of South Africa
[9]
Van
Eeden v The Director of Public Prosecutions, Cape of Good Hope
2005
(2) SACR 22
(C) at para 23