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[2018] ZAGPJHC 601
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Brand v S (A228/2016) [2018] ZAGPJHC 601; 2019 (1) SACR 264 (GJ) (30 October 2018)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A228/2016
the
matter between:
BRAND,
GERALD C
Appellant
And
THE
STATE
Respondent
JUDGMENT
THOMPSON
AJ:
[1]
The
Appellant was convicted of one count of fraud in the sum of
R24 020,00 in the district court. The conviction ensued
from a plea of guilty tendered by the Appellant in terms of Section
112(2) of the Criminal Procedure Act 51 of 1977 (“the
Act”).
After the plea of guilty was accepted and the Appellant being duly
convicted, the State made application in terms
of Section 114(1)(b)
[1]
of the Act to have the
matter transferred to the Regional Court for sentencing purposes.
In making the application, the State
made the following submission:
“
In
terms of section 114(b) of
[the
Act],
which
states that if a Magistrate’s Court, after a conviction,
following on a plea of guilty, but before sentence, is of the
opinion
that the previous convictions of the accused are such that the
offence in respect of which the accused has been convicted,
merits
punishment in excess of the jurisdiction of a Magistrate’s
Court, the court shall stop the proceedings and commit
the accused
for sentence by the Regional Court having jurisdiction. We are
certainly of the view that this section will apply.
. .
So
we would like to make that application and we hope that the court
concurs with the view of the state that, in light of the previous
convictions, this is certainly a case that needs to be referred to
the Regional Court, because the state does not believe that
three
years imprisonment, which is its jurisdiction, is going to be
suitable to this accused. . .
”
[2]
During the course of the aforesaid submission, the State made the
following additional, and rather curious, submission:
“
.
. .there is a very good chance that section 114(c) will also very
soon be applicable to this accused, in that the accused may
very soon
be a person referred to in terms of Section 286A(1). . .”
[3]
Section
114(c) provides as follows a magistrate’s court may commit an
accused for sentencing by a regional court after a plea
of guilty if
it is of the opinion that the accused is a person referred to in
section 286A(1)
[2]
of the Act.
[4]
Section 286A of the Act deals with declaring a convicted person as a
dangerous criminal. None of the Appellant’s
prior
convictions or the conviction
in casu
has any element of
violence and the prosecutor’s reference to Section 286A is an
error. No doubt, to the trained legal
eye, it is apparent that
the prosecutor intended to refer to section 286 of the Act, the
latter section dealing with declaring
a repeat offender a habitual
offender. Rather peculiarly, Mr Nukhere, who appeared for the
Appellant in the district court,
did not seek to correct this error
on the part of the prosecutor.
[5]
The learned magistrate in the district court also did not seek to
correct this error in the part of the prosecutor. In
transferring the matter from the District Court to the Regional
Court, the Learned Magistrate in the district court recorded the
following on the charge sheet annexures:
“
Court
is of the opinion in terms of Sec 114(1)(b) of Act 51/77 that the
previous convictions of the Accused are such that the offence
in
respect of which the Accused has been convicted merits punishment in
excess of the Magistrate’s Court. The Court therefore
stops the
proceedings and commits the Accused for sentence in Regional Court
2.”
[6]
This recordal was in line with the learned magistrate in the district
court’s order as recorded in the record where it
was stated
that:
“
.
. .the court is of the opinion that in terms of section 114(1)(b) of
[the
Act],
that
the previous convictions of the accused are of such a nature that the
offence in respect of which the accused has been convicted,
merits
punishment in excess of the Magistrate’s Court. The court
therefore stops the proceedings and commits the accused
for sentence
in Regional Court 2.”
[7]
The record of the district court proceedings was duly proved and
accepted in the regional court with the regional court confirming
the
conviction of the Appellant. The State proved a long list of
previous convictions against the Appellant, which respectively
includes 1, 6 and 21 counts of fraud as well as 71 counts of theft.
It bears mentioning that the first two fraud offences
were committed
during 2004, some 4 months apart with the third fraud offence being
committed during 2007. The 71 convictions
of theft all arise
from a single transaction committed during 2009. The Appellant
was incarcerated on the latter offences
until 3 September 2012 when
he was released on parole supervision until 1 January 2016. The
offence under consideration in
this matter occurred during April/May
2015, whilst the Appellant was still under parole supervision.
[8]
In
S
v Naweseb
[3]
a
comprehensive discourse of the origin of S286 of the Act was
undertaken by Kritzinger AJ and in doing so the court held that the
purpose of S286 of the Act was not so much to punish the accused for
his most recent offence, but rather to see if, an accused
who is
removed from society for a long time, will outgrow his habitual
criminal tendencies and further to protect the society against
an
accused who habitually commits offences. Both these objects are
achieved by removing the accused from society for a lengthy
period of
time not exceeding 15 years.
[4]
[9]
No
hard and fast rules exist in terms of which it is to be determined
whether an accused has reached that stage where he habitually
commits
offences. Each case must be determined on its own merits.
It would be risqué for a court to rely solely
on the list of
previous convictions in order to determine and find that an accused
habitually commits offences. This is due
to the fact that the
reasons why accused persons commits offences differ on a case to case
basis. Some accused persons commit
offences out of pure
desperation arising out of social circumstances whilst others are
seduced by adventure and the influence of
friends.
[5]
The court is therefore enjoined to investigate the material facts
upon which reliance is being placed for a declaration to
be made in
terms of section 286 of the Act. A duty rests on the State and
the court to, at least, attempt to determine the
circumstances under
which the previous offences and the most recent offence had been
committed.
[6]
[10]
This
pre-constitutional practice that was laid down is salutary and finds
even more application in a constitutional era where the
accused’s
right to fair trial rights are enshrined.
[7]
The declaration of a person as a habitual offender is a drastic
declaration and leads to exceptional punishment.
[8]
The declaration as a habitual offender has dire consequences for the
liberty of an accused person, which could result in
the accused being
removed from society for up to 15 years. This punishment
should, in my view, not be resorted to for flimsy
reasons or based on
speculative hypothesis.
[11]
Section 286(1) of the Act enjoins the court to be satisfied that i.
the accused habitually commits offences and ii. society
should be
protected against such accused person. In this matter the
Appellant has previous fraud convictions emanating from
2004 and
2007. There is a space of some three years between these fraud
convictions. There is a further space of 8
years between the
last fraud conviction and the present fraud conviction, granted the
Appellant spent just over 3 years thereof
in prison on the theft
convictions. The theft convictions, 71 in number, looks
horrendous on paper, however a closer scrutiny
of the SAP 69 shows
that the 71 counts of theft arose from a single incident in 2009.
Between 2012, when the Appellant was
released under parole
supervision and the commission of the offence in this matter, almost
two and a half years had passed.
[12]
The learned magistrate in the regional court found that the Appellant
had been convicted of no less than 129 counts of offences
relating to
dishonesty. On my perusal of the SAP 69, I could only count
99. Of the 99 counts that I could determine,
71 counts thereof
related to a single act, which in turn constituted 71 counts due to
the legal definition of theft. Moreover,
21 counts of the 99
counts that I could determine, also arises from, so it seems, from a
single act. This much seems to be
confirmed by the fact that
the court in that matter took the 21 counts together for the purposes
of sentencing. The 6 counts
of fraud of 2004 also seem to arise
from one act. This much also seem to be confirmed by the fact
that the court took the
6 counts together for the purposes of
sentencing.
[13]
The State did not seek an order in terms of section 286 of the Act to
have the Appellant declared a habitual offender.
If we are to
accept that the reference to section 114(c) as read with section 286A
of the Act by the prosecutor was a
bona fide
error on the part
of the prosecutor and that a reference to section 286 of the Act was
intended, it is evident that the State envisaged
a situation whereby
the Appellant would, in the future, find himself on the wrong side of
section 286 of the Act.
[14]
In light thereof that the material facts upon which the declaration
of the Appellant as a habitual offender was not determined
and the
learned magistrate solely relied on the contents of the SAP 69
relating to the Appellant’s previous convictions,
I am of the
view the learned regional court magistrate misdirected himself in
declaring the Appellant a habitual offender.
This misdirection
is further supported by the fact that the learned magistrate relied
on the number of previous convictions rather
than evaluating the
actual substance of the previous convictions. Had he done so he
would have noted that the Appellant’s
previous criminal acts,
although giving rise to numerous counts, are limited to 4 acts.
Substantial time periods passed between
each act. This shows
the danger that Kritzinger AJ warned against in the
Nawaseb
-matter
wherein he stated that it would seldomly be possible to determine,
premised solely on the list of previous convictions,
whether an
accused habitually commits offences.
[15]
In
order for the learned regional court magistrate to properly have
exercised his judicial discretion in terms of section 286 of
the Act,
he had to be mindful of all relevant facts and principles.
[9]
It is obvious that not all relevant facts, as informed by the
principles already dealt with, was considered by the learned
regional
court magistrate.
[10]
On
this misdirection alone, we are entitled to interfere with the
sentence imposed by the learned regional court magistrate.
[11]
[16]
In
my view, this is not the end of the matter. It has become
established practice that a prior warning at a previous hearing
should be given to an accused before an accused is subsequently
declared a habitual offender.
[12]
However, as the law presently stands, the prior warning at a previous
hearing is not a
sine
quo non
for
declaring an accused a habitual offender.
[13]
The giving of a warning or the absence thereof is a factor that must
be taken into consideration when the court exercises
its sentencing
discretion in declaring an accused a habitual offender. As a
matter of fact, in the absence of a prior warning
at a previous
hearing, it has been held that exceptional circumstances must be
present if the well-settled practice of a warning
is to be deviated
from.
[14]
[17]
That no prior warning was given to the Appellant is common cause.
It is clear from the record that the learned magistrate
did not
consider the impact of the absence of such warning. Much less
did the learning magistrate indicate to the Appellant
that he is
considering declaring the appellant a habitual offender and in
failing to give such indication the learned magistrate
failed to
request submissions from the State and the Appellant regarding this
intention.
[18]
This
failure, in itself, was a misdirection by the learned magistrate.
Sentencing is a judicial function
sui
generis
during
which a more inquisitorial approach is required.
[15]
A criminal trial is not a game and the duty of a presiding officer is
not merely that of an umpire to see that the rules
of the game is
observed. The presiding officer must not only direct and
control the proceedings according to the recognised
rules of
procedure but must also see thereto that justice is done.
[16]
This imposed, in my view, a duty on the learned magistrate to
indicate that he considered declaring the appellant a habitual
offender and calling for submissions thereon.
[19]
My view that such a duty was imposed by general notions of justice,
fairness and equity on the learned magistrate is fortified
by the
fact that the State did not seek a declaration in terms of section
286 of the Act. As a matter of fact, upon a reading
of the
record transmitted from the district court, it is evident that such
declaration in terms of section 286 of the Act was not
even
contemplated by the State. The learned regional court
magistrate did not take this fact into consideration.
[20]
In the absence of a statutory requirement of a prior warning which
must be issued at a previous hearing, however having regard
to the
established practice that such warning should preferably issued, the
learned regional court magistrate was enjoined to consider
what the
effect of the absence of such prior warning at a previous hearing
would have on the Appellant’s constitutionally
enshrined rights
to a fair trial.
[21]
In this matter no notice of appeal had been filed. The Appellant’s
handwritten application for leave to appeal proposes
as grounds for
the appeal against sentence that the sentence imposed is shockingly
inappropriate in that he disregards the time
period the Appellant
spent trial awaiting. The Appellant also submits that the maximum
period of 15 years’ imprisonment as
allowed for in terms of
Section 286 of the Act constitute disproportionate and excessive
punishment and constitutes cruel and unusual
punishment and
treatment. The Appellant further submits in his application for leave
to appeal that correctional supervision or
an alternative sentence to
imprisonment should have been imposed. I take into cognisance
that the Appellant, in drawing up
the handwritten application for
leave to appeal, acted in person. In drawing his application
for leave to appeal, the appellant
did not raise the lack of a prior
warning at a previous hearing as an issue. No weight can be
attributed to this failure as the
Appellant acted in person.
[22]
In
the heads of argument submitted on behalf of the Appellant by Ms
Simpson, it was submitted, for the first time, that the imposition
of
a habitual offender sentence in terms of section 286 of the Act is
usually proceeded by a prior warning in previous proceedings
that,
should the Appellant again be convicted of similar offences, he runs
the risk of being declared a habitual offender.
[17]
It was argued that declaring an accused a habitual offender should
not be made in the absence of a prior warning.
[23]
Whether
this prior warning in previous proceedings has become a
constitutional jurisdictional element prior to imposing a sentence
in
subsequent proceedings in terms of section 286 of the Act has not
been properly raised, either in the application for leave
to appeal
or the Appellant’s heads of argument. The State, in
seeking to have the appeal dismissed, submitted that
the prior
warning is not necessary,
[18]
but conceded that a more careful enquiry and investigation is then
required for the sentencing court to exercise its discretion
in
whether or not to impose a section 286 of the Act sentence.
[19]
This latter concession, of course, ties in with the earlier finding
of misdirection by the learned regional court magistrate
by failing
to consider all relevant facts and circumstances.
[24]
In light of these conflicting submissions on behalf of the State and
the Appellant, I am of the view that the question whether
a prior
warning at a previous hearing is a necessary precursor to declaring
an accused a habitual offender requires authoritative
attention
premised on constitutional considerations.
[25]
The
principle that where it is possible to decide any case without
reaching a Constitutional issue, that course should be followed
[20]
is no longer part of our law.
[21]
Courts are therefore no longer called upon to avoid Constitutional
issues whenever possible. Issues pertaining to the interpretation
and
application of legislation are ultimately constitutional and, this
therefore affects how to approach the interpretation and
application
of legislation from the outset.
[22]
I therefor am of the view that this is an appropriate matter in which
to deal with the question, informed by constitutional
values and
principles, whether a prior warning at a previous hearing is a
necessary precursor to declaring an accused a habitual
offender.
[26]
As already indicated earlier in this judgment, there is no statutory
requirement in Section 286 of the Act that a prior warning
in
previous proceedings must have been directed at an accused that he
may be declared a habitual offender should he be again convicted
of a
similar offence. It is only a practice that has developed over the
years that it has become customary to issue such prior
warning at
previous proceedings. Whether the absence of a prior warning during
previous proceedings, in our constitutional era,
precludes a
subsequent Court from handing down a sentence in terms of Section 286
of the Act has not been authoritatively decided.
[27]
The
Constitutional Court
[23]
has
indicated that a Court needs to be convinced, to make such
declaration, that:
i.
That the person habitually commits crimes;
ii.
That its detention for at least 7 years is the right protection of
the community against the Accused;
iii.
That the Accused is not under the age of 18 years; and
iv.
That the punishment does not warrant that the Accused be sentenced to
a term imprisonment exceeding 15 years.
[28]
Although the Constitutional Court did not indicate that a prior
warning at a previous hearing is necessary, a careful reading
of the
Niemand
-judgment shows that the grounds of appeal before the
Constitutional Court was limited and the prior warning point was not
even
raised. I have not been directed to, nor have I found
through my own research, any case law where this point has been
considered
within the context of our constitutional jurisprudence.
[29]
What is clear from the various authorities is that declaring an
accused as a habitual offender is a drastic sentencing option
and, if
imposed, leads to exceptional punishment. The
pre-constitutional authorities already grasped this notion and
established
the salutary practice of requiring a prior warning at a
previous hearing. If this was the position prior to our
constitutional
era, the practice should find even more application in
the constitutional era having regard to an accused’s entrenched
constitutional
right to a fair trial.
[30]
An
accused’s substantive fair trial rights, which is broader than
the rights specifically mentioned and conferred to an accused
in
section 35(3) of the Constitution,
[24]
demands that an accused be fully appraised of the charge or charges
against such accused and the consequences if found guilty on
such
charge or charges.
[25]
To use the analogy of another drastic sentencing option, the minimum
mandatory sentence provisions, the right to a fair trial
requires
that an accused be given sufficient notice of the State’s
intention to rely on the minimum mandatory sentencing
regime in every
instance.
[26]
In my view
it follows that it has become a constitutional requirement that an
accused be forewarned of the possibility of
being declared a habitual
offender before such a declaration may be made.
[31]
Unlike
minimum sentence provisions, where an accused is informed of the dire
consequences upon being convicted in the charge sheet
or indictment,
it is not possible to do so where a habitual offender declaration may
follow upon conviction. A reference
to Section 286 of the Act
in the charge sheet or indictment will immediately alert the
presiding officer to, not only a previous
conviction on a similar
charge, but to a possible long list of previous convictions on a
similar charge. This state of affairs
is expressly prohibited
by the Act.
[27]
[32]
Informing an accused, for the first time, after a conviction that the
declaration as a habitual offender is being considered
as a
sentencing option in such proceedings stands, in my view, to
prejudice the accused. An accused must be in a position
to
decide whether the accused wishes to be legally represented at the
outset of a trial. This right to choose to be legally
represented can only be properly exercised if an accused is fully
appraised of the consequences of a further conviction.
If an
accused chooses to be legally represented, the accused must be in a
position to provide full instructions to the legal representative
so
that the accused may receive proper advice about all aspects of the
case. This will allow an accused to make an informed
decision
regarding the conduct of the case.
[33]
Although
it was stated in the context of minimum mandatory sentencing that for
the explanation of the consequences of applicable
sentencing options
to be effective, it must be done prior to the commencement of the
trial, which means it must be made prior to
an accused pleading to
the charges,
[28]
is, in my
view, also apposite to a possible declaration as a habitual
offender. As the explanation cannot be done immediately
prior
to the trial commencing for the reasons already discussed herein, the
only remaining juncture the warning can be given to
an accused is at
the time of the passing of sentence in the previous matter.
[34]
This imposes a duty on the previous sentencing judicial officer to
consider whether, on a subsequent occasion, a habitual offender
declaration may be an appropriate sentencing option. If such
judicial officer is of the view that such declaration may ensue
on a
subsequent occasion, the accused must, at the very least be informed
that a habitual offender declaration may ensue, the consequences
of
the declaration and the need for the accused to inform his legal
representative at any possible subsequent proceedings of the
fact
that he had been so warned. I must mention, in passing, that it
would be ill-advised for an accused to fail to inform
his legal
representative at subsequent proceedings that such a warning had been
issued and then seek to rely on such failure on
his part in an
attempt to avoid being declared a habitual offender.
[35]
The
State, lastly, submitted that making a prior warning at a previous
hearing a constitutional requirement and a mandatory precursor
to
declaring an accused a habitual offender will result in the fettering
of a subsequent court’s sentencing discretion.
I do not
agree. As was set out by Marais JA in
S
v Malgas,
[29]
there is a significant distinction between, on the one hand,
depriving a court of any sentencing discretion at all and, on the
other hand, one which fetters only partially the exercise of the
discretion but leaves it otherwise largely intact. In my
view
the need for a prior warning at a previous hearing falls into the
latter category.
[36]
Returning to the sentence imposed on the appellant it is clear that
the learned regional court magistrate misdirected himself
in
declaring the appellant a habitual offender. However, the
appellant’s offences under consideration, coupled with
his
previous convictions on similar charges are sufficiently serious to
warrant a period of substantial imprisonment.
[37]
The appellant relies on a presentencing report by Ms Vergeer, a
social worker who is also a probation officer as contemplated
by
Section 276A(1)(a) of the Act. Ms Vergeer’s presentencing
report, however, takes the matter no further and certainly
does not
assist the appellant in his quest for correctional supervision.
Ms Vergeer expresses no opinion as to why correctional
supervision
should be considered above any other sentencing option or why the
appellant is a suitable candidate for correctional
supervision
considered against any other sentencing option.
[38]
One would expect an expert to express an opinion, within the scope of
the expert’s expertise, why correctional supervision
will be
the most beneficial sentencing option for an accused and to motivate
such opinion. Instead Ms Vergeer’s presentencing
report
does nothing more than summarise the various sentencing options
available to the court together with setting out, in bullet
points,
the advantages and disadvantages of each sentencing option.
This approach is singularly unhelpful to the court and
constitutes a
shirking of an expert’s duty to assist the court in
understanding why one sentencing option should be preferred
against
another having regard to an accused’s particular personal
circumstances.
[39]
In my view the sentence whereby the appellant was declared a habitual
offender falls to be set aside and replaced with a period
of direct
imprisonment. Notwithstanding the unhelpful nature of Ms
Vergeer’s report, the appellant is not a suitable
candidate for
correctional supervision. He has had numerous opportunities to
rehabilitate himself from his criminal ways
and he has not taken
advantage of any of the opportunities afforded to him. I cannot
see how a non-incarceration sentence
will serve as a deterrent or
assist the appellant in rehabilitating himself.
[40]
In the circumstances I propose the following order:
1.
The appeal against the sentence imposed succeeds with the order
declaring the appellant a habitual offender being set aside and
replaced with 7 (SEVEN) years direct imprisonment;
2.
The sentence imposed is ante-dated to [INSERT DATE OF ORIGINAL
SENTENCE];
3.
The appellant is hereby warned that he runs the risk of being
declared a habitual offender in terms of
Section 286
of the
Criminal
Procedure Act 51 of 1977
should be in the future be convicted of any
offence of which dishonesty is an element. The appellant is
further warned that
an order whereby he is declared a habitual
offender will result in him being imprisoned for a period of no less
than 7 years, but
no more than 15 years. The appellant is also
warned that he should inform any future legal representative in
respect of any
future charges relating to crimes of dishonesty, prior
to the commencement of such trial, of this warning being imposed on
him.
________________________________
C
E THOMPSON AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree, and it is so ordered.
________________________________
M
A MAKUME
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR APPELLANT’S:
Adv S Simpson
APPELLANTS’
ATTORNEYS:
Legal
Aid
COUNSEL
FOR RESPONDENTS: Adv
A M Williams
RESPONDENTS
ATTORNEYS:
NPA
DATE
OF HEARING:
23 August 2018
DATE
OF JUDGMENT:
30 October 2018
[1]
“
114
Committal
by magistrate's court of accused for sentence by regional court
after plea of guilty
(1)
If a magistrate's court, after conviction following on a plea of
guilty but before sentence, is of the opinion-
(a)
. . .
(b)
that the previous convictions of the accused are such that the
offence in respect of which the accused has been convicted merits
punishment in excess of the jurisdiction of a magistrate's court; or
(c)
that the accused is a person referred to in
section 286A(1)
”,
the
court shall stop the proceedings and commit the accused for sentence
by a regional court having jurisdiction.
”
[2]
See fn 1
[3]
1980 (1) 345 (SWA)
[4]
S
v Niemand
2001
(2) SACR 654 (CC); 2002 (1) SA 21 (CC)
[5]
Nothing in this judgment must be construed that the commission of
offences due to social circumstances or the seeking of adventure
is
condonable from the perspective of the law or the courts. It
is merely pointed out that the true nature and circumstances
of the
commission of repeated and eventually habitual offences should be
known.
[6]
S
v Nawaseb,
supra
at 346F – 347A
[7]
S
v Trichardt
2014
(2) SACR 245 (GJ)
[8]
S
v Van Eck
2003
(2) SACR 563
(SCA) at para [10]
[9]
National
Coalition for Gay and Lesbian Equality & others v Minister of
Home Affairs & others
2000
(2) SA 1
(CC) para 11
[10]
The issue of judicial discretion is further dealt with later on in
this judgment.
[11]
S
v Rabie
1975
(4) SA 855
(A) at 857 D – F
“
1
In every appeal against sentence, whether imposed by a magistrate or
a Judge, the Court hearing the appeal-
(a)
should be guided by the principle that punishment is "pre-eminently
a matter for the discretion of the trial Court";
and
(b)
should be careful not to erode such discretion: hence the further
principle that the sentence should only be altered if the
discretion
has not been "judicially and properly exercised".
2
The test under (b) is whether the sentence is vitiated by
irregularity or misdirection or is disturbingly inappropriate.
”
[12]
S
v Mache
1980
(3) SA 224
(T). See also
R
v Edwards
1953
(3) SA 168
(A),
S
v Erasmus
1987
(4) SA 685
(CPA),
S
v Van Eck
2003
(2) SACR 563
(SCA),
Smith
v S
(A02/2013)
[2013] ZAFSHC 120
;
2014 (2) SACR 190
(FB (27 June 2013)
[13]
S
v Magqabi
2004 (2) SACR 551
(E)
[14]
S
v Smith
2014
(2) SACR 190
(FB) at para [10]
[15]
S
v Siebert
1998
(1) SACR 554
(SCA)
at 558J – 559A
[16]
S
v Rall
1982
(1) SA 828
(A) at 831B – C
[17]
See fn 14
[18]
S
v Waya
1994
(2) SACR 334
(E);
S
v Erasmus
1987
(4) SA 4
SA 685 (C)
[19]
S
v Waya
,
supra
[20]
S v Mhlungu
[1995] ZACC 4
;
1995 (3) SA 867
(CC) at para
[59]
as approved in Zantsi
v Council of State, Sisky
[1995] ZACC 9
;
1995 (4) SA 615
(CC) at para
[3]
[21]
Jordaan and Others v City of Tshwane Metropolitan Municipality and
Others; City of Tshwane Metropolitan Municipality v New Ventures
Consulting and Services (Pty) Ltd and Others; Ekhuruleni
Metropolitan Municipality v Livanos and Others 2017 (S) SA 287 (CC)
[22]
Jordaan v City of Tshwane Metropolitan Municipality, et al, supra at
80 para [8]
[23]
S
v Niemand
,
supra
[24]
S
v Zuma
[1995] ZACC 1
;
1995
(2) SA 642
(CC) at para
[16]
[25]
Mhlongo
v S
(140/2016)
[2016] ZASCA 152
;
2016 (2) SACR 611
(SCA) (3 October 2016) at para
[11]
“
At
the heart of the right to a fair criminal trial and what infuses its
purpose, is for justice to be done and also be seen to
be done.
Dignity, freedom and equality are the foundational values of the
Constitution. In relation to sentencing, what the right
to a fair
trial requires, amongst other things, is a procedure which does not
prevent any factor which is relevant to the sentencing
process and
which could have a mitigating effect on the punishment to be
imposed, from being considered by the sentencing court.
The
Constitutional Court emphasised ‘[i]n the present
circumstances a fair trial would also have to ensure that, in the
process of the sentencing court being put in possession of the
factors relevant to sentencing, the accused is not compelled
to
suffer the infringement of any other element of the fair trial
right.’
”
[26]
Mohlongo
at
para [15]
[27]
See Section 89, 197, 211 and 271
[28]
Ramaite
v S
(958/2013)
[2014] ZASCA 144
;
2015 (2) SACR 79
(SCA) (26 September 2014) at para
[10]
[29]
2001 (2) SA 1222
(SCA) at para [2]