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[2018] ZASCA 186
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Stow v Regional Magistrate, Port Elizabeth NO and Others; Meyer v Cooney NO & others (911/2017; 047/2018) [2018] ZASCA 186; 2019 (1) SACR 487 (SCA) (12 December 2018)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 911/2017
In
the matter between:
ANDREW WALTER
STOW FIRST
APPELLANT
and
REGIONAL MAGISTRATE, PORT
ELIZABETH NO
FIRST
RESPONDENT
DIRECTOR
OF PUBLIC PROSECUTIONS, SECOND
RESPONDENT
EASTERN
CAPE
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT THIRD
RESPONDENT
Case
No: 047/2018
And
in the matter between:
JACOBUS STEPHANUS
MEYER FIRST
APPELLANT
and
KENNY COONEY
NO FIRST
RESPONDENT
DIRECTOR
OF PUBLIC PROSECUTIONS, SECOND
RESPONDENT
EASTERN
CAPE
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT THIRD
RESPONDENT
Neutral
citation:
Stow v Regional Magistrate PE NO & others
;
Meyer v Cooney NO & others
(911/2017; 047/2018)
[2018]
ZASCA 186
(12 December 2018)
Coram:
Ponnan, Seriti and Zondi JJA and Nicholls and Carelse AJJA
Heard:
12 November 2018
Delivered:
12 December 2018
Summary
:
Section 297 of the Criminal Procedure Act 51 of 1977 (CPA) –
whether the court a quo was correct in dismissing the review
application – whether the decision of the magistrate to put the
suspended sentence into operation is appealable in terms
s 309(1) of
the CPA.
ORDER
On
appeal from:
Eastern Cape Division of the High Court, Grahamstown
(Roberson J and Makaula AJ sitting as court of appeal):
The
appeal of each of Mr Stow and Mr Meyer is dismissed.
JUDGMENT
Nicholls and Carelse AJJA
(Seriti and Zondi JJA concurring):
[1]
Mr Stow and Mr Meyer, the appellants, were charged and convicted in
two separate criminal cases of ‘white collar crime’
in
the regional court, Port Elizabeth. In both instances they were
sentenced to a five year period of imprisonment, which was wholly
suspended in terms of s 297(1)(b) of the Criminal Procedure Act 51 of
1977 (the CPA), on condition that they did not commit similar
offences within the five year period and they repaid the monies to
the complainants. In both instances, the appellants failed to
make
the necessary payments and the suspended sentences were put into
operation by the regional court.
[2]
Mr Meyer and Mr Stow, aggrieved by the regional courts’
decision to put their respective suspended sentences into operation,
independently sought to review these decisions before the Eastern
Cape Division of the High Court in terms of Rule 53 of the Uniform
Rules of Court. At this point they introduced a challenge to the
constitutionality of s 297(1)(b) of the CPA read with s 297(1)(a)(i)
(aa). The matters were consolidated and one judgment was delivered in
respect of both appellants. Each application failed before
Roberson J
(with Makaula AJ concurring). During the course of argument in this
Court, counsel for both appellants expressly abandoned
their
constitutional challenge. Accordingly, nothing further need be said
about that aspect of the case.
[3]
The relevant portions of s 297 of the CPA provide:
‘
Conditional or
unconditional postponement or suspension of sentence, and caution or
reprimand
(1) Where a court
convicts a person of any offence, other than an offence in respect of
which any law prescribes a minimum punishment,
the court may in its
discretion-
(a) . . .
(b) pass sentence but
order the operation of the whole or any part thereof to be suspended
for a period not exceeding five years
on any condition referred to in
paragraph
(a) (i) which the court
may specify in the order; or
(c) . . .
(7) A court which has-
(a) . . .
(b) suspended the
operation of a sentence under subsection (1) (b) or (4); or
(c) . . .
whether differently
constituted or not, or any court of equal or superior jurisdiction
may, if satisfied that the person concerned
has through circumstances
beyond his control been unable to comply with any relevant condition,
or for any other good and sufficient
reason, further postpone the
passing of sentence or further suspend the operation of a sentence or
the payment of a fine, as the
case may be, subject to any existing
condition or such further conditions as could have been imposed at
the time of such postponement
or suspension.
(9) (a) If any condition
imposed under this section is not complied with, the person concerned
may upon the order of any court,
or if it appears from information
under oath that the person concerned has failed to comply with such
condition, upon the order
of any magistrate, regional magistrate or
judge, as the case may be, be arrested or detained and, where the
condition in question-
(i) . . .
(ii) was imposed under
subsection (1) (b), (4) or (5), be brought before the court which
suspended the operation of the sentence
or, as the case may be, the
payment of the fine, or any court of equal or superior jurisdiction,
and such court, whether or not
it is, in the case of a court other
than a court of equal or superior jurisdiction, constituted
differently than it was at the
time of such postponement or
suspension, may then, in the case of subparagraph (i), impose any
competent sentence or, in the case
of subparagraph (ii), put into
operation the sentence which was suspended.
(b) A person who has been
called upon under paragraph (a) (ii) of subsection (1) to appear
before the court may, upon the order
of the court in question, be
arrested and brought before that court, and such court, whether or
not constituted differently than
it was at the time of the
postponement of sentence, may impose upon such person any competent
sentence.’
Mr
Stow
[4]
Mr Stow was previously employed by Volkswagen South Africa (VW). In
2002, he was charged with several counts of defrauding Volkswagen
as
a result of which he lost his job. The following year Mr Stow started
a new transport business, Coastrans CC, (the CC) of which
he is the
sole member.
[5]
Mr Stow
failed to pay to the South African Revenue Service (SARS) value added
tax (VAT) in terms of the Value Added Tax Act
[1]
received by the CC in the course of its business. This led to
criminal charges being laid against the CC, as accused one, and the
appellant, as accused two, of 32 counts of theft and/or the
contravention of s 58(d) of the VAT Act. At the time the CC owed more
than R513 000 (including interest) in VAT to SARS.
[6]
On 21 June 2011, Mr Stow pleaded guilty to contravening s 58(d) of
the VAT Act and made a statement in terms of s 112 of the
CPA. He
admitted that the CC was a registered VAT vendor and that he was its
representative as envisaged in s 48 of the Act. He
further admitted
that on 32 occasions he failed to pay over to SARS, VAT totalling
R406 018.17 for the period 2004 to 2010.
[7]
Mr Stow was convicted on his plea and sentenced to 5 years’
imprisonment, wholly suspended for 5 years on the following
two
conditions:
(a) That he not be
convicted of a contravention of s 58(d)(1)(a) and 28(1) and (2) of
the VAT Act, or of fraud or any competent
verdict committed during
the period of suspension.
(b) That the amount of
R513 060.77 be repaid to SARS with effect from 1 August 2011 on or
before the 15th of every month at a minimum
amount of R10 537.43 per
month until the full amount has been paid.
[8]
From the outset, Mr Stow failed to fully comply with the second
condition. By the beginning of November 2011 he had only repaid
R20
500. On 11 November 2011, he approached the regional court with the
request that the monthly payments be reduced to R6000 per
month. The
court acceded to this request and an order was made in those terms.
The magistrate then warned Mr Stow that a further
request would not
easily be countenanced.
[9]
Notwithstanding the reduction, Mr Stow made only three payments after
the new order had been put into operation, namely; R6000
in November
2011, R6 000 in January 2012 and R5 600 in February 2012. Thereafter
he made no further payments whatsoever nor did
he approach the court
in question. In June 2013, the State applied for an order that the
suspended sentence be put in operation.
[10]
At the hearing, Mr Stow provided an affidavit in which he set out the
factors that prevented him from complying with the order.
These are,
inter alia, that in November 2011 he moved house and had to pay a R13
000 deposit; on 15 November 2011 his truck was
involved in an
accident and could not be utilised for 2 weeks resulting in a loss of
income; he had to pay an excess of R4 800
on the insurance claim; no
income could be earned during the December 2011 and January 2012
holiday period; in June 2012 the truck
broke down again, it took a
month to repair at a cost of R58 000 and he only had one client at
that time, which he lost as a result
of SARS claiming VAT directly
from that client. Mr Stow’s suspended sentence was put into
operation on 24 June 2013. It is
this order that he sought to have
reviewed and set aside.
[11]
The court a quo, in concluding that the regional court properly
exercised its discretion, found that at the time of the original
sentence and the later reduction, Mr Stow represented that he had the
means to meet the payments. He is a businessperson, who was
legally
represented and was fully aware of his financial situation and
obligations. Although no specific mention was made of s
297(7) in the
regional court’s judgment, the court a quo held that this did
not mean that the section was not considered.
[12]
This
reasoning cannot be faulted. Mr Stow was made aware at both previous
appearances before the regional court that he would be
facing a term
of imprisonment if he did not comply with the conditions of
suspension. On both occasions, he assured the court of
his ability to
pay. It was on this basis that the regional court initially suspended
the custodial sentence. The provisions of
s 297(7) and (9)
circumscribe the regional court’s power – there were two
avenues available to it. The court could
either further suspend the
sentence subject to the same conditions or other conditions that
could have been imposed at the time
of the original sentence, or to
put the sentence into operation.
[2]
In its discretion, the regional court chose the latter. It believed,
with justification, that a further suspension in the circumstances
would be pointless.
[13]
In declining to interfere with the conclusion of the regional court
that the suspended sentence must be put into operation,
the court a
quo cannot be faulted. It follows that Mr Stow’s appeal must
accordingly fail.
Mr
Meyer
[14]
Mr Meyer, the only member of Sunshine Coastal Consultants CC,
operated a micro lending business from about 1999 until July
2002. He
invited members of the public to invest in the business, with
interest to be paid over to them. After his attorney advised
him that
the business was illegal, he immediately ceased the business
operations. In total Mr Meyer received an amount of R28 268
377 from
various investors. The amount outstanding to the investors as at the
date of sentence was R5 278 569 000.
[15]
On 20 April
2006, after entering into a plea and sentence agreement in terms of s
105A of the CPA, Mr Meyer was found guilty on
one count of
contravening s 11(1), read with 11(2), of the Banks Act 94 of
1990.
[3]
Mr Meyer was sentenced
to a fine of R100 000 or 400 days’ imprisonment and a further
five years’ imprisonment, which
was suspended for a period of
five years on condition that he paid an amount of approximately R5
300 000 to 116 investors, plus
interest at a rate of 1,25 percent per
month.
[16]
Mr Meyer’s first payment in terms of the agreement commenced in
June 2006. Some three years later, in 2009, Mr Meyer
breached his
condition of suspension for the first time by failing to make the
requisite payments to the investors. As a result,
the State applied
for a warrant for his arrest, which was issued and executed on 4
September 2009.
[17]
On 29 September 2009 in order to determine whether the suspended
sentence should be put into operation in terms of s 297(7)
and
297(9)(a)(ii) of the CPA, a hearing was held before the regional
court. During the proceedings Mr Meyer, who was legally represented,
testified at length that because of changes in the micro lending
industry, the introduction of the National Credit Act, as well
as his
desire to repay investors over a shorter period of time, he felt
compelled to sell the business. A year after his plea and
sentence
agreement, according to him, he sold the business to Finbond, which
sale included the sale of Maalpit CC, which was owned
by Mr Black, Mr
Meyer’s son in law and Mr Meyer’s daughter. The business
was sold for the sum of R10 075 913 000. Mr
Meyer, testified that he
was meant to receive R8 200 000. Finbond paid an initial cash amount
of R5 400 000, of which R3 600 000
was paid to Mr Meyer and the
balance of R1 800 000 was paid to Mr Black. The outstanding balance
was to be paid in Finbond shares.
[18]
From the R3 600 000 that Mr Meyer received from the sale of the
business, R3 100 000 was repaid to the investors. A dispute
arose
between Mr Meyer and Finbond which resulted in Mr Meyer failing to
meet the terms of the plea and sentence agreement.
[19]
Under cross examination Mr Meyer made several concessions. Firstly,
Mr Meyer gave no plausible explanation why he did not seek
legal
advice when he concluded the sale agreement with Finbond. Secondly,
the plea agreement in terms of s 105A of the CPA was
based on his
micro lending business that was clearly profitable and from which he
would have been able to repay the investors over
a five-year period.
Thirdly, he failed to disclose the conclusion of the sale agreement
to both the State and the investors and
the lapsing of his insurance
policies, which were part of the plea agreement. He provided no
explanation for this non-disclosure.
Importantly, the insurance
policies were meant as security in the event of his death prior to
full repayment. Mr Meyer’s
reason for selling the business was
that his micro lending business was in decline. However, he conceded
that for the period 1
September 2007 until 30 November 2007 the
business would have been very profitable.
[20]
In the exercise of its judicial discretion, the regional court, after
weighing all the evidence and the further submissions
on behalf of Mr
Meyer, put into operation Mr Meyer’s suspended sentence. The
court a quo held that the regional court was
correct in finding that
Mr Meyer’s breach of his condition of suspension was not beyond
his control, or for any good and
sufficient reason.
[21]
The court a quo agreed with the regional court’s findings that
Mr Meyer was reckless when he sold the micro lending business
to
Finbond under risky terms and conditions. There is no reason
warranting interference by this Court with the conclusion by the
court a quo. The appeal must accordingly fail.
Appeal
or Review
[22]
The court a quo dealt with the matter as a review in terms of Rule
53. However, the appellants’ complaint was that the
respective
regional courts had not properly exercised their discretion. In the
ordinary course this is not a ground for review,
but a ground for
appeal. This begs the question – does a litigant wishing to
challenge the decision of a court to put a suspended
sentence into
operation, come by way of review or appeal?
[23]
The grounds of review are to be found in
s 22
of the
Superior Courts
Act 10 of 2013
, which replaced s 24 of the Supreme Court Act 59 of
1959. The grounds for review in both Acts is, to all intents and
purposes,
identical. These are:
(a) absence of
jurisdiction on the part of the court;
(b) interest in the
cause, bias, malice or corruption on the part of the presiding
judicial officer;
(c) gross irregularity in
the proceedings; and
(d) the admission of
inadmissible or incompetent evidence or the rejection of admissible
or competent evidence.
[24]
No reliance was placed on any of those grounds. No gross irregularity
is contended for. The case made out on the papers and
in argument is
that the respective regional courts did not exercise their discretion
judicially when arriving at their decision,
which resulted in an
irregularity. It is the suitability of the sentence imposed by the
regional court that is the cause of complaint
rather than any
procedural irregularity committed in arriving at the sentence.
[25]
It has long
been a tenet of our law that an appeal is against the result of the
proceedings and a review is an attack on the method
of proceedings.
If the court has a discretion, which is wrongly exercised, this is a
ground for appeal and not review.
[4]
An appeal is usually confined to what appears on the record. In a
review, the issue is not whether the decision is capable of being
justified on the record but whether the judicial officer properly
exercised the powers entrusted to him or her. In other words,
the
focus is on the process which led to the decision which is
challenged.
[5]
[26]
In previous
cases the putting into operation of a suspended sentence has
generally been challenged by way of review rather than
appeal.
[6]
The rationale for this is to be found in the wording of s 309(1)(a)
of the CPA which provides that ‘any person convicted
of any
offence by any lower court (including a person discharged after
conviction) may, subject to leave to appeal being granted
in terms of
section 309B or 309C, appeal against such conviction and against any
resultant
sentence
or
order to the High Court having jurisdiction.’ (my emphasis)
[27]
In
Gasa
v Magistrate for the Regional Division of Natal
[7]
the
court considered whether the resultant sentence or order could
encompass the putting into operation of a suspended sentence
and
found that it could not. It therefore was not appealable. Nor could
any of the allegations in that matter bring the application
within
the purview of s 24 of the Supreme Court Act 59 of 1959, which was
the only avenue available to the applicant.
[28]
The issue
was similarly dealt with in
S
v Helm.
[8]
It was held that when a person is given a suspended sentence, it is
the original suspended sentence that is the resultant sentence,
not
the subsequent decision to put the suspended sentence into operation.
The court therefore found that the decision was not susceptible
to
appeal.
[29]
The court
in
S v
Peskin
[9]
re-iterated that an applicant was restricted to the grounds set out
in s 24 of the Supreme Court Act. However, in order to set
aside the
manifestly unfair decision to put the suspended sentence into
operation, the court held that the decision was susceptible
to review
under the high court’s inherent common law jurisdiction to
correct proceedings of lower courts.
[10]
In
S v
Block
[11]
it was held that the review powers of the high court have been
extended by the Constitution which allows for greater flexibility
in
the application of s 24 of the Supreme Court Act. A court would have
greater latitude in the event of a failure of justice.
The paramount
consideration is now fairness and the interests of justice.
[30]
In
S
v S
[12]
Nugent J, at 611G- J said:
‘
In all those cases
the reason for so holding was based upon the wording of what is now s
309(1)(a) of the Act, which provides that
any person convicted of any
offence by any lower court “may appeal against such conviction
and against any such resultant
sentence or order”. In
S v
Helm
and in the cases that preceded it (which dealt with similar
wording in earlier statutes) it was held that when a person is first
given a suspended sentence, that is the “resultant sentence”’
from his conviction, and that a subsequent decision
which is made to
put that sentence into operation accordingly does not fall within the
terms of the section. Those decisions were
not based upon a
principled objection to the appealability of such a decision, but
upon the construction of the wording of the
particular section of the
Act which allows for appeals at the instance of the accused from
decisions made in the lower courts.
It is not necessary in the
present case to decide whether those decisions ought to be followed
in the future.’
[31]
In
S
v Sekotlong
[13]
it was observed that the putting into operation of a suspended
sentence was not merely an administrative function but part of a
criminal trial. A court determining the issue of a person’s
liberty was not only entitled to consider an appeal but ‘duty
bound’ to do so. It would be unconscionable if a high court
could not provide redress either by way of an appeal or review.
[32]
The section states that any person may appeal a conviction by the
lower court and the ‘resultant sentence’. But
this should
not be confined to the narrow interpretation adopted in some of the
earlier decisions. The original sentence may well
be the ‘resultant
sentence’ in the strict sense but there is no reason why this
phrase should not be more expansively
interpreted to encompass the
putting into operation of a suspended sentence. It is a consequence
of the resultant sentence in the
broader sense. Therefore, properly
interpreted s 309(1)(a) is not a statutory prohibition to the
appealability of a decision to
put into operation a suspended
sentence.
[33]
It follows that the view held in some of the earlier cases is no
longer tenable. It is clearly in the interests of justice
that a
person be afforded the right to challenge a decision to put a
suspended sentence into operation. Such challenge is invariably
on
the basis of a court wrongly exercising its discretion. This can
never be a ground for review. An applicant challenging such
decision,
as in all appeals, is confined to what is stated in the record.
[34]
In conclusion, the court a quo correctly dismissed the application
for review in respect of both Mr Stow and Mr Meyer.
[35]
In the result the following order is made:
The
appeal of each of Mr Stow and Mr Meyer is dismissed.
_________________
C
H Nicholls Acting Judge of Appeal
_________________
Z
Carelse Acting Judge of Appeal
Ponnan
JA (Seriti and Zondi JJA and Nicholls and Carelse AJJA concurring):
[36]
These appeals concern suspended sentences that were put into
operation by the magistrates’ court. A preliminary issue
that
occupied much of the debate from the bar in this court is whether or
not such an order is appealable. It has been held in
various cases
that a decision by a magistrate to put a suspended sentence into
operation is not capable of being taken on appeal.
My colleagues,
Nicholls and Carelse AJJA, conclude that ‘the view held in
[those] cases is no longer tenable’. I write
separately in
support of that conclusion.
[37]
An order putting a suspended sentence into operation was not
appealable in terms of the provisions of s 103 of the Magistrates’
Court Act 32 of 1944, which read:
‘
Any person
convicted of any offence by the judgment of any magistrate’s
court . . . may appeal against such conviction and
against any
sentence or order of the court following thereupon to the provincial
division of the Supreme Court.’
The
approach of our courts was that the order putting into operation the
suspended sentence was not a conviction. Nor was it a sentence
or an
order following upon a conviction within the meaning of s 103.
[38]
Section 103 was repealed and criminal appeals from lower courts came
to be regulated by s 309 of the CPA, which provides in
subsection 1
that:
‘
any person
convicted of an offence by any lower court . . . may, subject to
leave to appeal being granted in terms of s 309B or
309C, appeal
against such conviction and against any resultant sentence or order
to the High Court having jurisdiction.’
In
Gasa v
Regional Magistrate for the Regional Division of Natal
at
731G
,
[14]
Hefer J observed that the new provision is not materially different
from s 103, which applied when most of the earlier cases were
decided. He added:
‘
. . . the fact
remains that every order of a lower court in a criminal case is not
appealable and one still has to turn to s 309(1)
in order to discover
whether such an order is one of the kind that has been declared to be
appealable. As stated before, it is
only appealable if it can be
described as a “resultant . . . order”, ie an order made
as a result of the conviction.
Naturally, it follows upon a
conviction, but it is not the result thereof; it is the result of
non-compliance with the conditions
of suspension . . . and for that
reason it is still not appealable’.
[39]
It thus
came to be accepted even under s 309(1) that when a person is given a
suspended sentence that is the ‘resultant sentence’
from
his conviction and that a subsequent decision which is made to put
that sentence into operation accordingly does not fall
within the
terms of the section.
[15]
That
approach has not escaped criticism. As Nugent J pointed out in
S
v S
at
611J:
[16]
‘
Those decisions
were not based upon a principled objection to the appealability of
such a decision, but upon a construction of the
wording of the
particular section of the Act which allows for appeals at the
instance of the accused from the decisions made by
the lower courts.’
[40]
I must confess to having some difficulty as to why a sentence, when
subsequently put into operation, is not to be regarded
as a
‘resultant sentence’ within the meaning of that
expression. There is no gainsaying that the sentence results from
the
conviction. That the operation of the sentence is suspended on
certain conditions does not alter the fact that it resulted
from the
conviction. It is so that it only comes to be put into operation as a
result of non-compliance with the conditions of
suspension, but that
hardly alters the fact that the sentence resulted from the
conviction. That the sentence only becomes operative
upon the breach
of a condition and consequently that there is a delay in the
implementation of the sentence matters not. But for
the conviction
there can be no sentence to speak of. The timing of its
implementation can hardly alter the essential character
of the
sentence – properly construed, it follows upon the conviction.
Nor does it assist this enquiry to suggest, as
Helm’s case
does, that an accused person has a right to appeal the original
sentence. We are not here concerned with the proceedings when the
sentence came to be imposed. We are concerned with the subsequent
proceedings during which the sentence, which had earlier been
fixed
by the sentencing court, comes to be put into operation. It is thus
no answer to suggest that an appeal avails an accused
person in
respect of the earlier proceedings. What’s more, there appears
to be no reason in principle or logic why an appeal
should avail an
accused person when the sentence is imposed and its operation
suspended, but not when it is subsequently put into
operation.
[41]
It needs to be emphasised that if the complaint is against the result
of the proceedings of the magistrates’ court, ordinarily
the
appropriate remedy is by way of appeal. If the method of the
proceedings is the subject of the attack, the appropriate remedy
is a
review. Where, however, as frequently occurs in matters of this kind,
the result rather than the method is sought to be attacked,
a review
would be inapposite. For a successful review, an accused person is
required to raise such allegations as are necessary
to bring him –
or her – self within the purview of
s 22
of the
Superior Courts
Act (or
s 304(4)
of the CPA (
S v S
at 613I-J)). Failure to do
so may mean that the high court cannot exercise its powers of review
in terms of that section and may
decline to entertain the application
for review.
[42]
To be sure, there will be matters where review would be appropriate.
But, for the most part, as one sees, appeals, in truth,
have had to
be dressed up as reviews.
S v Gasa
illustrates the conundrum
for an accused person. Before that court was an appeal and an
application for review. The court held that
the order was not
appealable. It then made short shrift of the review application on
the basis that none of the allegations necessary
to bring the matter
within the purview of s 24 of the Supreme Court Act had been raised.
It accordingly held that the court could
not exercise its powers of
review in terms of that section.
[43]
Moreover, there are strong policy considerations in favour of an
appeal. A necessary jurisdictional prerequisite for an appeal,
which
does not obtrude in reviews, is the grant of leave to appeal in terms
of sections 309B or C of the CPA. That is an important
filter. It
serves to weed out matters that are unmeritorious and thus not truly
deserving of the attention of higher courts. On
the other hand, there
may well be a danger that matters that deserve to be heard are
stifled because an appeal, on one or more
of the traditional grounds,
does not avail an accused. As
Gasa’s case
illustrates,
not allowing an appeal in these circumstances, could leave an
accused, in effect, remediless.
[44]
In any event, whatever the position might have been at the time those
cases were decided, we are now enjoined by s 39(2) of
the
Constitution to ‘promote the spirit, purport and objects of the
Bill of Rights’. In terms of s 35(3) thereof every
accused
person is entitled to a fair trial, which includes the right of
‘appeal to, or review by, a higher Court’.
In my view,
construing the provision as conferring no more than a rather limited
review, renders the full realisation of the s
35(3) right illusory.
As Nugent J put it in
S v S
at 609D- E:
‘
In our view it
would be a parsimonious construction of the Bill of Rights which
confined it only to the immediate consequences of
the trial itself.
In our view the clear spirit, purport and object of that section is
to ensure that no person is condemned to
endure a penalty provided
for by the criminal law without recourse being had to another court
in order to correct any irregularity
or injustice which might have
occurred in the course of the proceedings which have had that
result.’
[45]
Taking his lead from
S v S,
in
S v Sekotlong
, Van
Rooyen AJ opined:
‘
[4] I do not have
the slightest doubt that this Court is entitled and in fact duty
bound to consider the appeal of the appellant.
I do not regard the
setting into operation of a suspended sentence by a court as a mere
administrative or quasi administrative
function. Punishment is an
inherent element of the criminal process and where a court orders
that a suspended sentence be made
operational, it assumes the
position of a criminal court which punishes the person who has been
convicted. It has to have regard
to the ordinary principles of
punishment and cannot simply have a person imprisoned as would a
clerk keeping a register. When the
liberty of a person is at stake,
grounds must exist before such liberty is taken away. In fact, to my
mind, the second court is
nothing else than an extension of the trial
court when it considers putting a suspended sentence into operation.
[5] Section 35(3) of the
Constitution Act 108 of 1996 guarantees a fair trial which included
the right of appeal to, or review by,
a higher court. The imposition
of a sentence is part of a criminal trial and the requirements of a
fair trial also apply to this
facet of the trial. In deciding whether
to order that a suspended sentence should become operational, the
court must have regard
to the ordinary principles of punishment.
Where the appeal court is of the view that it should intervene in
accordance with the
traditional rules for intervention in punishment
by a court of appeal, it should do so and not be limited by the
grounds for civil
review.’
[17]
[46]
In my view,
s 309(1) of the CPA is quite capable of a construction which includes
within its terms a decision by a magistrate to
put a suspended
sentence into operation and that is the construction that ought to be
favoured in order to give proper effect to
the spirit, purport and
objects of the Bill of Rights. It would be unconscionable if a
decision of that nature could be made capriciously,
and a higher
court could not provide redress by way of appeal. In
S
v Z and 23 Similar cases
para
31, Plasket J said ‘[t]he focus of the Courts should . . . be
on the justice of the end result, rather than the technicalities
of
the process’.
[18]
In my
view, the ‘justice of the end result’ is better served by
construing the provision as permitting a right of appeal,
as opposed
to denying it.
[47]
I must add that even if Messrs Stow and Meyer had proceeded by way of
appeal in this matter, as we find they should have, the
result would
remain unaffected. Each matter, whether by way of review or appeal,
is devoid of merit and the court a quo was correct
in declining to
interfere with the exercise of the regional court’s discretion.
I accordingly agree with my learned colleagues
that both appeals must
fail.
______________
V
M Ponnan Judge of Appeal
APPEARANCES:
For
the Appellants: L Crouse SC (with him H Alberts)
Instructed
by: Legal Aid South, Port Elizabeth Justice Centre, Bloemfontein
For
the Respondent: CJ Mouton SC (with him A Rawjee and Desai)
Instructed
by: The State Attorney, Port Elizabeth
The
State Attorney, Bloemfontein
[1]
Value Added Tax Act 89 of 1991 (VAT Act).
[2]
Radzilane v S
[2016] ZASCA 64
(16 May 2016).
[3]
Section 11 provides:
(1) Subject to the
provisions of section 18A, no person shall conduct the business of a
bank unless such person is a public company
and is registered as a
bank in terms of this Act.
(2) Any person who
contravenes a provision of subsection (1) shall be guilty of an
offence.
[4]
Modesi v Mosiga 1927 TPD 150.
[5]
Minister of Environmental Affairs and Tourism & others v
Phambili Fisheries (Pty) Ltd; Minister of Environmental Affairs
and
Tourism & others v Bato Star Fisheries (Pty) Ltd 200
3 (6) SA 407
SCA para 52; Rustenburg Platinum Mines Ltd v CCMA
2007 (1) SA 576
SCA para 30 and 31.
[6]
In the following cases it was held that no appeal lies against a
decision to put a suspended sentence into operation on the basis
that this was not a sentence following upon a conviction: R v Dunn
1929 TPD 53
; R v Kalpy
1958 (1) SA 291
(C); R v Khan
1961 (1) SA 282
(N); S v Van Nieuwenhuizen
1972 (3) SA 575
(T); S v Helm 1980 (3) SA
605 (T).
[7]
Gasa v Magistrate for the Regional Division of Natal 1979 (4) SA 749
(N).
[8]
S v Helm
1980 (3) SA 605
(T).
[9]
S v Peskin 1997 (2) SACR 240 (C).
[10]
Ibid at 464C-D.
[11]
S v Block (1) SACR 622 Nck para 16-18.
[12]
S v S 1999 (1) SACR 608 (W).
[13]
S v Sekotlong 2005 JDR 0190 (T).
[14]
Supra fn 7.
[15]
S v Helm supra fn 8.
[16]
Supra fn 12.
[17]
Supra fn 13.
[18]
S v Z and 23 Similar cases
2004 (1) SACR 400.