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[2016] ZAFSHC 59
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S v Van Wyk (53/2015) [2016] ZAFSHC 59 (7 April 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION: BLOEMFONTEIN
Review
No.: 53/2015
DATE:
7 APRIL 2016
In
the matter between:-
THE
STATE
And
JACQUES
ETTIENNE VAN WYK
CORAM:
DAFFUE,
J
et
NAIDOO, J
JUDGMENT
BY:
DAFFUE,
J
DELIVERED
ON:
7
APRIL 2016
I
INTRODUCTION
[1]
This matter came before the High Court on automatic review in terms
of s 304 of the Criminal Procedure Act, 51 of 1977 (“the
CPA”).
[2]
The cardinal issues in this review are firstly, whether the court
a
quo
abdicated its responsibilities in
imposing sentence and secondly, whether the conditions attached to
the suspended sentence are
clear, precise and unambiguous.
II
THE PROCEEDINGS IN THE COURT
A
QUO
[3]
The accused pleaded guilty to a charge of contravening
s 59
(4) (a)
of the
National Road Traffic Act, 93 of 1996
in that on 4 November
2014 he wrongfully and intentionally drove a Mercedes Benz Vito
minibus with registration [N………]
at a speed in
excess of the general speed limit of 120km/h which apply to the
particular road, the N1 north of Bloemfontein, to
wit at a speed of
187km/h. He was duly convicted.
[4]
The accused indicated in mitigation that he was prepared and able to
pay a fine on condition that it is deferred on a basis
that he be
allowed to pay the fine in instalments of R500,00 per month.
Notwithstanding this he was sentenced as follows:
“
The
accused is sentenced to R10 000,00 (Ten thousand) or 4 (four)
months imprisonment which is wholly suspended in terms of
section
297(1)(b)
of the
Criminal Procedure Act, 51 of 1977
for 1 (one) year
on condition that the accused
(1)
is not again convicted of the contravention
of section 59 of the National Road Traffic Act, 93 of 1996 (exceeding
the prescribed
speed limit), and
(2)
which was committed during the period of
suspension, and
(3)
further that the accused report to the
National Institute for Crime Prevention and Re-integration of
Offenders, (12 Tannery Road,
Hamilton, Bloemfontein, telephone nr
051-4355193) as arranged with Ms Joubert (NICRO) for the commencement
of the Non-Custodial
Sanction Programme as set out beyond.”
[5]
Attached to the order is a document under the respective headings,
Community Service, Programmes and General Good Conduct.
Ex
facie
this annexure read with the
sentence, the accused’s sentence was suspended on condition
that he did community service and
underwent certain programmes.
The duration and nature of the community service were not prescribed
by the court
a quo,
but the accused was ordered to do
“
community
service as prescribed and determined by NICRO/The Correctional
Officer, Department of Correctional Services”. The
nature
of such community service, the place where and the times during which
such services were to be formed, had to be determined
by either the
social worker of NICRO or the correctional officer of the Department
of Correctional Services. The same applied
to the programmes to
which the accused had to submit.
[6]
Sentence was imposed on 5 December 2014.
III
RESERVATIONS
IN REGARD TO THE SENTENCE
[7]
When I initially received the review I was concerned about the lack
of clarity of the imposed sentence and in particular the
conditions
of suspension. Consequently I requested the learned magistrate
to respond to certain questions, bearing in mind
my viewpoint that
the sentence was not clear and unambiguous and that the court
a
quo
had failed to formulate the
community service to be undertaken in the court order, particularly
pertaining to the nature and duration
of the community service and
the fact that the community service was to be done under the auspices
of either a social worker of
NICRO or a correctional officer of the
Department of Correctional Services. The English version of my
enquiries is as follows:
“
1.
Is the learned magistrate aware of the fact that the imposition of
community service was taken out of her hands and that no judicial
oversight existed over that to be determined and prescribed by
NICRO’s social worker?
2.
The learned magistrate was required to comment about the possibility
that the particular social worker could “force”
the
unrepresented accused to do community service which was
disproportionate to the crime or the interest of the community.
3.
She was asked to state whether it was not foreseeable that a dispute
could arise in the event of alleged non-compliance, especially
when
the State intends to take steps to put the suspended sentence into
operation.
4.
On what basis would it be possible for a court of review or a court
of appeal to adjudicate whether a proper sentence has been
imposed if
the terms of the community service do not form part of the sentence
or do not appear from the record?
5.
Is the sentence imposed in line with a standard procedure in the
Bloemfontein District Court?”
IV
RESPONSE OF THE COURT
A
QUO
[8]
The learned magistrate presented me with a detailed statement of
reasons which is much appreciated. She made the following
introductory remark:
“
It
is apposite to from the onset agree with the Honourable Judge of
Review that the formulation of the sentence and the evidence
on
record lack detail for the proper evaluation thereof on review and
that on face value create (sic) the impression of the issues
referred
to by the Honourable Judge.”
She
then concluded as follows in paragraph 14.2:
“
The
prayer to the Court of Review is to confirm the sentence but that the
formulation is amended.”
[9] The learned
magistrate responded as follows to my enquiries and I quote these
verbatim
.
“
13.1
AD:
Sentences must be explicit and
possible to execute.
The
sentence is indeed explicit and possible to execute in practice to
and for
all the immediate participants to the sentence
.
The period, schedule of service, place of service and nature of
service were fixed and controlled.
The content of the file
of the accused supports this.
The
content of the file does not form part of the record of the
proceedings and makes adjudication of the sentence impossible
.
It did however form part of the information on which the Court
a
quo
applied its discretion. There
are no statutory prescribed process that demands this evidence to
form part of the record such
as is the case in sentences of
correctional supervision in terms of section 276A(1)(a) of the CPA.
These prescriptions have
however been complied with in practice.
It is submitted that since a review may be considered on additional
documents such
as the reasons of the judicial officer, it may serve
as proof that the sentence is indeed just and the judicial officer
applied
her mind.
Lower
Courts are “courts of record” and evidence must reflect
formally. The
above lack of
recorded evidence may be regarded as a mistake of law
;
it is however submitted that it is not an irregularity
per
se
and does not nullify the sentence
automatically. The
extra curial
control over the process and execution of the sentence is attestation
of the regularity and legality thereof.
The
wording of the sentence does indeed call for amendment to satisfy the
reader and adjudicator of the sentence
.
The Court
a
quo
regrets this and humbly
requests an alternatively phrased sentence to serve the process of
justice
.
13.2
AD:
The annexure to the sentence is ambiguous.
The
annexure is not ambiguous if viewed with the directives, process and
resources. It rather serves as assurance of effective
control
of the sentence. In paragraph three of the sentence the social
worker in direct control is appointed. Reference
to: “NICRO/The
Correctional Officer: Department of Correctional Services” in
the rest of the sentence ensures that
the supervising social worker
may delegate to the Community Corrections Officer and only to this
entity. This prevents the
calamities that occurred during the
sentences in earlier efforts.
13.3
AD:
The imposition of the community service and judicial control
thereof might have been, irregularly so, transferred to the NICRO
officer.
The
community service was not taken out of the control of the Presiding
Officer and the orders in the sentence are also not irregular
given
the discussion above. The Directives are clear, the nature of
the sentence is depicted in the assessment report, the
accused is
effectively informed, control is maintained and progress reports
ensure constant judicial supervision; even after sentence.
The
social workers are professional, efficient and demonstrated
constitutional integrity over the period involved with sentences
in
the Court. Only two social workers have been identified to
implement and monitor the sentences due to their competence.
Again; the wording of the sentence and
record lack detail and must be amended and regret continues
.
13.4
AD:
The point above may put the accused
at the mercy of the NICRO officer and cause the community service to
be disproportional to the
crime or the interest of the community.
The
honourable Judge of Review is respectfully referred to the discussion
above.
13.5
AD:
The possibility of a dispute
over the non-compliance to the conditions of the sentence.
The
Honourable Judge of Review is referred to the directives and
specifically the control prescribed.
13.6
AD:
The Honourable Court of Review
cannot adjudicate the sentence if the terms of the sentence are not
depicted in the record.
This
is indeed conceded
.
13.7
AD:
Standard practise of sentences of
this nature in the Bloemfontein District Courts.
The
sentence is not standard practice in the Bloemfontein District Court
and an initiative of this Court.”
(emphasis
added)
V
LACK OF RECORDED EVIDENCE
[10]
The following documents attached to the court
a quo’
s
reasons do not form part of the court record initially sent on review
and the transcribed record does not indicate that these
documents
have been placed before the court
a quo
.
10.1
An alternative sentence assessment report by a social worker, Me M M
Joubert of NICRO dated 24 November 2014
(the day before the accused
pleaded guilty). She recommended community service of 160 hours
to be served at an institution
named the Cheetah Experience.
10.2
An assessment report dated 1 December 2014 done by the same social
worker.
10.3
A document termed “Agreement: Alternative sentencing”
dated 15 December 2014, and attached thereto
an indemnity form signed
by the accused and a further document indicating that the accused had
to serve 160 hours community service
at the Cheetah Experience from
15 December 2014 onwards.
[11]
Attached to the court
a quo’
s
reasons is also a suggested amended sentence stipulating the period
of community service (the hours to be served) and the institution
where the service has to be performed. Again reference is made
to NICRO and the Correctional Officer: Department of Correctional
Services in the alternative.
VI
CORRECTIONAL SUPERVISION
12]
I deem it necessary to deal with correctional supervision in so far
as I am of the view that the court
a quo
misdirected itself in
considering the role to be played by correctional official in the
employ of the Department of Correctional
Services in the type of
sentence that she had in mind. Although the learned magistrate
has to be complimented for the initiative
taken to deal with
offenders who may be kept within the community whilst serving their
sentences, those offenders that do not deserve
custodial sentences,
she misdirected herself pertaining to the applicable principles
relating to sentencing options.
As shown
infra
correctional supervision can be imposed as an independent
sentence under s 276(1) of the CPA and that it can be used as a
condition
of suspension of sentence or when a sentence is
postponement. Kruger A, Hiemstra’s Criminal Procedure,
loose leaf edition
at 28-76 records with respect correctly that there
is in practice little difference between correctional supervision as
independent
punishment or as a condition in terms of s 297. A
report of a correctional official should be obtained before sentence
is
imposed and the same sentencing procedure should be followed.
Courts have to determine a period for the correctional supervision
as
well as the essential components thereof. See also
S v R
1993 (1) SA 476
(AD) at 492 C – H. In
casu
it is
apparent from the court
a quo’
s reasoning and the
heading of the annexure to the sentence that she had a sentence of
community service in mind and not correctional
supervision. The
Department of Correctional Services did not and could not play any
role whatsoever during the sentencing
process and could not be
directed to play any role after imposition of the type of sentence
that the court
a quo
had in mind.
[13]
Correctional supervision as a sentencing option is available in
accordance with the provisions of s 276(1)(h) and s 276(1)(i)
of the
CPA. It is also available as a condition to the suspension of
sentences as is apparent from s 297(1)(b) read with
s 297(1)(a)(ccA)
of the CPA. The
Correctional Services Act, 111 of 1998
defines
“community corrections
”
to mean
“
all non-custodial measures and forms
of supervision applicable to persons who are subject to such measures
and supervision in the
community and who are under the control of the
Department”. The particular department is the Department
of Correctional
Services. “Correctional supervision
”
is defined as
“
a
form of community corrections contemplated in Chapter VI
(of
the
Correctional Services Act)&rdquo
;. The Act also defines
“community service
”
as
“compulsory work for the community organisation or other
compulsory work of value to the community, performed without
payment”. See s 1 of the Act.
[14]
Section 60
of
the
Correctional Services Act deals
with community service and it
reads as follows:
“
(1)
Where a
condition of community service
is set as part of community corrections
,
it must stipulate the number of hours which the person is required to
serve, which shall not be less than 16 hours per month,
unless the
court otherwise directed.
(2)
(a) The court, Correctional Supervision and Parole Board or other
body which has the authority to impose community service may
specify
where such community service is to be done.
(b)
Such an order may not be changed without the matter being referred
back to the court, Board or other body which set the condition
unless
it provides that the order may be changed by a Supervision Committee.
(c)
If such court, Board or other body does not specify where such
community service should be performed, the Supervision Committee
must
specify the place.” (emphasis added)
Clearly
the accused person was not a person subject to community corrections
stated in
s 51
of the
Correctional Services Act and
therefore the
references by the learned magistrate to
s 60
of the particular Act
are misplaced.
VII
COMMUNITY SERVICE
[15]
Community service, or service for the benefit for the community as it
is sometimes called, can be imposed if a sentence is
postponed or
where a sentence is passed but the operation of the whole of part
thereof is suspended on certain conditions including
the performance
of community service. See s 297(1)(a)cc).
[16]
This is a laudable option available to a presiding officer to keep
especially first offenders and those that have not committed
serious
offences out of correctional service centres. Such orders must
be practical and their formulation must be set out
clearly and
unambiguously, particularly with reference to the duration, extent
and nature of the community service. See
S
v Tsanshana
1996
(2) SACR 157
(EC) at 160c – 161f.
[17]
Pickering J considered the imposition of community service on review
as follows in
S v Sikunyana
1994 (1) SACR 206
(TK) at
212f and further:
“
Closely
allied to this aspect of the matter are the questions of the nature
of the service which an accused will be able to render
at that
institution; the times at which such service can be performed; and
the person or persons under whose supervision such service
can be
performed. As was stated in
S v
Louw
(
supra
at 239D – E), it would obviously be of great assistance to the
Court to have the benefit of evidence by an official of NICRO
who has
already investigated the circumstances of the particular case.”
He
continued as follows at 212i:
“
It
is quite insufficient for a court merely to order that an accused
should ‘render service for the benefit of the community
…
for a period of three months’. The conditions must be stated
with such precision that the convicted person may understand
the
ambit thereof. (
R v Cloete
1950 (4) SA 191E
at 234E).” I accept for purposes of this
judgment that the learned magistrate was satisfied that the social
worker,
Ms M Joubert, investigated whether or not the particular
institution, Cheetah Experience, was prepared to accept the services
of
the accused and that he was not, in the words of Pickering J,
“
foisted upon”
the
institution “without their prior approval and consent.”
[18]
In
S v Joseph
2013 (1) SACR 183
(GSJ) the review court was confronted with a
sentence of R8 000.00 or 12 months’ imprisonment imposed
on the accused
for a speeding offence, wholly suspended on certain
conditions,
inter alia
that
the accused complete 80 hours of community service under the
supervision of NICRO. Moshidi J stated that community service
on its own is a form of punishment which has all the advantages of a
non-custodial sentence meeting most of the purposes of sentence.
He
reviewed and set aside the sentence of 80 hours community service on
the basis that the community service coupled with an excessive
suspended fine constituted a possible future unfairness and injustice
in that in the event of the accused re-offending within the
period of
suspension he would automatically become liable to payment of the
fine of R8 000.00 imposed in respect of the speeding
offence.
[19]
In
S v Benn; S v Jordaan; S v
Gabriels
2004 (2) SACR 156
(CPD)
three matters came before the court by way of special review.
It was emphasised by the review court at page 160h that
not only
should the suspended conditions have some relation to the crime, but
they should be stated with precision. It is
really debatable
whether requiring an accused person to work at a Cheetah farm
catering for wildlife and Cheetahs in particular
is sufficiently
related to a speeding offence, but for purposes of this judgment this
does not deserve detailed consideration.
It is doubtful whether
a sales representative and traveller like the accused person would be
of any assistance or benefit to an
institution like Cheetah
Experience which is in the wildlife industry. Also, again
beside the point, it might be questioned
whether the service required
to be rendered at no costs to the community as required by the Act
would benefit the institution at
all. There was no
evidence before the court
a quo
as to whether assistance was required by the particular institution
and whether or not the accused person could add any value.
[20]
The
Benn
judgment, like the others judgments quoted above,
serves as confirmation that conditions of suspension must be set out
in clear,
precise and unambiguous terms.
VIII
DIRECTIVES RELATING TO COMMUNITY
SERVICE
[21]
The learned magistrate should be applauded for the initiatives taken
by her in co-operation with the Department of Correctional
Services
and NICRO. I accept that she had detailed consultations with
social workers specialising in the monitoring of sentences
to name
but one aspect. She acknowledged the complexities of the type
of sentences that she would have preferred to impose
more regularly.
As mentioned practicalities are severe stumbling blocks. The
statement of the court
a quo
that without proper legislation and a credible infrastructure a
sentence of community service “stands on constitutionally
shaky
ground”
is not without merit.
This may indeed be so if a proper pre-sentence report by an expert,
which forms part of the record,
and preferably confirmed by
viva
voce
evidence, is not obtained.
The presiding officer should not venture into an uncertain domain by
relying on untested information
not forming part of the evidential
material before the court. As the court
a
quo
correctly pointed out, our courts,
including the lower courts, are courts of record and evidence must be
reflected formally.
[22]
Ex facie
the
record produced when the matter was sent on review, there can be
little doubt that any reasonable reader would accept that the
court
abdicated its responsibility to determine the duration and nature of
the community sentence in favour of a social worker
of NICRO,
alternatively a correctional officer of the Department of
Correctional Services. The alternative sentence assessment
report of
Me M Joubert prepared and signed a day before the accused actually
pleaded guilty, stated that the accused “…
will have to
complete
160 hours of community service at
the Cheetah Experience.
”
That
document did not form part of the court record and there is no
indication from the record that the court
a
quo
was prepared to accept this report
and/or that the accused person was confronted with the contents of
this report at any stage.
I accept that the learned magistrate
kept this in a file as stated by her. This is unacceptable.
The recommended sentence
is in line with the agreement entered into
between the social worker and the accused on 15 December 2014, a few
days after sentence.
It is disconcerting that in imposing
sentence the court
a quo
mentioned the following:
“
Verder
dat die beskuldigde sal rapporteer by NICRO soos ooreengekom sal word
tussen hom en Mev Joubert vir die aanvang van hierdie
program.
‘n Afskrif van die vonnis gaan aan die beskuldigde oorhandig
word, ek gaan net ‘n opsomming van die
basiese voorwaardes en
die belangrike voorwaardes aan hom voorhou.
Wat
betref gemeenskapsdiens staan dit NICRO vry om enige gemeenskapsdiens
aan die beskuldigde voor te skryf.
”
(emphasis added)
This
explanation of the court
a quo
is in line with paragraphs 4 and 4.1 of the annexure to the sentence.
This prompted me to direct the enquiries mentioned and reinforce
my
viewpoint that the learned magistrate abdicated her responsibilities
in respect of sentence and also, that the community sentence
was not
imposed in precise terms. I quote the two paragraphs
verbatim:
“
4.
… : (i)t is further ordered that the accused do community
service
as prescribed and determined by
NICRO/The Correctional Officer
:
Department of Correctional Services.
4.1
The nature of the community service, the place where and the times
during which such service is to be confirmed, shall be determined
by
the social worker …”
It
is also clear from the reasons of the learned magistrate that “NICRO
had limited funding for the NCS initiative and it
has since been
suspended with effect from January 2015”. The learned
magistrate tried to motivate the reference to
a correctional officer
in the alternative to NICRO in this regard, but as indicated above,
the Department of Correctional Services
does not and cannot play a
role to monitor community service, unless that community service is
set as part of community corrections
in terms of
s 60
of the
Correctional Services Act which
was not the case in
casu.
IX
CONCLUSION
[23]
It is not my intention to be prescriptive as sentencing remains the
prerogative of the presiding officer who has to impose
sentence in
his/her discretion after taking into consideration all mitigating and
aggravating circumstances. Having said this,
and in line with the
learned magistrate’s suggestions referred to above, the
condition to the suspended sentence pertaining
to community service
should at least include the following: “The accused must
perform community service, namely administrative
duties to be
allocated to him (or whatever duties might be required and duly set
out in the court’s order), at the Cheetah
Experience,
Bloemfontein under the control and supervision of a qualified social
worker in the employ of NICRO for a period of
160 hours at a minimum
of 16 hours per month and which has to be completed within 12
(twelve) months.” Refer in general
to Terblanche SS,
Guide to Sentencing in South Africa
,
2
nd
ed. p 369.
[24]
Due to the time lapse and the fact that the accused would have served
the community service imposed upon him by now, it would
not serve any
purpose to amend the imposed sentence at this stage. It is however
reiterated that presiding officers shall always
aim at formulating
conditions of suspension, as is the case with all other orders and
sentences, with such precision that the convicted
person as well as
the court of review or court of appeal and any court that may be
required to put into operation a suspended sentence
because of
non-compliance with any condition, understand the ambit thereof.
X
ORDER
In
light of the fact that the accused has already served his sentence,
that sentence is confirmed.
J.
P. DAFFUE, J
I
concur.
S.
NAIDOO, J