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[2016] ZAGPPHC 1165
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Chetty and Others v S (A268/2015) [2016] ZAGPPHC 1165 (26 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
REPUBLIC
OF SOUTH AFRICA
26/10/2016
CASE
NO: A268/2015
In
the matter between:
VISHENDREN
CHETTY
First
Appellant
MOHAMED
NAIDOO
Second
Appellant
CALVIN
CHETTY
Third
Appellant
RAVIDREN
GOVENDER
Fourth
Appellant
and
THE
STATE
Respondent
JUDGMENT
ML
SENYATSI A J
[1]
The appellants pleaded guilty on a charge of assault with intent to
do grievous bodily harm and were convicted on 3 February
2015 by the
magistrate's court in Atteridgeville. It was submitted at the hearing
of the appeal that the first appellant has passed
away. The appeal is
by the three appellants.
[2]
They were sentenced to three years' imprisonment with a section
276(1)(i) of the Criminal Procedure Act 51 of 1977 (the "CPA")
non-parole order imposed.
[3]
The appeal is only against the sentence of direct imprisonment
imposed.
[4]
It was submitted on behalf of the appellants that the sentence was
shockingly harsh and severe as it failed to take into account
the
appellants' personal circumstances and the merits of the case.
[5]
It was furthermore argued that the trial court should have ignored
the JBB form which was submitted during the trial to prove
injuries
sustained by the complainant. The contention is that that form ought
not to have been admitted as evidence is based on
its alleged failure
to comply with the provisions of section 212(4) of the CPA.
[6]
The approach of the Appeal Court on the sentencing by the trial
courts has been reiterated in various judgments. In this respect
the
Appeal Court in
S v De Jager
1965 (2) SA 616
(A)
(at page 629) Holmes JA held that: -
"It would not
appear to be sufficiently recognised that a Court of appeal does not
have a general discretion to ameliorate
the sentences of trial
Courts. The matter is governed by principle. It is the trial Court
which has the discretion, and a Court
of appeal cannot interfere
unless the discretion was not
judicially exercised
,
that is to say unless the sentence is vitiated by irregularity or
misdirection or is so severe that no reasonable court could
have
imposed it. In this latter regard an accepted test is whether the
sentence induces a sense of shock that is to say if there
is a
striking disparity between the sentence passed and that which the
Court of appeal would have imposed. It should therefore
be recognised
that appellate jurisdiction to interfere with punishment is not
discretionary but, on the contrary, is very limited."
[Emphasis
added]
[7]
The law is therefore quite clear that the power of the Appeal Court
to interfere with the sentencing discretion of the trial
courts is
limited.
[1]
[8]
It is in exceptional circumstances such as misdirection or
irregularity on sentencing by trial courts that the Appeal Court
will
interfere with the sentence imposed.
[2]
[9]
It was submitted on behalf of the appellant that the JBB form
admitted in evidence in respect of the alleged injuries was not
regular as the medical doctor who completed it was a private
practitioner and therefore the provisions of section 212(4) of the
CPA were not complied with.
[10]
Section 212(4)(iv)-(vi) provides as follows: -
"
212 Proof of
certain facts by affidavit or certificate
(4)(a) Whenever any
fact established by any examination or process requiring any skill -
(i)
(ii)
(iii)
(iv) in anatomy or in
human behavioural sciences;
(v)
(vi) in the
examination of disputed documents, is or may become relevant to the
issue at criminal proceedings, a document purporting
to be an
affidavit made by a person who in that affidavit alleges that he or
she is in the
service of the State or of a provincial
administration or any university in the Republic or any other body
designated by the Minister
for the purposes of this subsection by
notice in the Gazette
and
that he or she has established such fact by means of such an
examination or process,
shall. upon its
mere production at such proceedings be prims facie proof of such
fact:
Provided
that the person who may make such affidavit may, in any case in which
skill is required in chemistry, anatomy or pathology,
issue a
certificate in lieu of such affidavit, in which event the provisions
of this paragraph shall
mutatis mutandis
apply with reference
to such certificate.
"
[
Emphasis
added]
[11]
The facts sought to be proved must be established by an examination
or process requiring any skill in any or more of the fields
stated in
section 212(4) of the CPA.
[12]
A document purporting to be an affidavit or a certificate must have
been prepared and the original thereof must be submitted
to court.
The person who made the affidavit (or certificate) must , at the
stage when the examination was conducted or process
followed, have
been in the service of the state; in the service of a provincial
administration; in the service of the of or attached
to the South
African Institute for Medical Research, in the service attached to
any university in the Republic, or in the service
of or attached to
anybody designated by Minister of Justice for the purposes of
subsection 212(4) of the criminal procedure Act,
1977 by notice in
the
Government Gazette
and this fact must be alleged
explicitly in the affidavit (or certificate).
[13]
If the skill required to ascertain the particular facts falls within
the ambit of anatomy; or pathology, the person who may
make the
required affidavit, may in lieu of an affidavit, issue a certificate
in which event the provisions of section 212(4) shall
mutandis
mutandis
apply to such certificate.
[14]
Evidence indicating that a factual finding was made by the deponent
is allowed by section 212(4) but a fact must have been
established by
the deponent and such factual finding must be mentioned in the
statement. Many section 212(4) statements received
from state
laboratories (for example, ballistic reports, DNA reports, etc.)
currently express the conclusions of the deponents.
Such conclusions
indicate that the deponent formed an opinion with regards his/her
analysis. Such opinion evidence is not sanctioned
by section 212(4)
and prosecutors and magistrates should resist the temptation to
receive such statements. In cases where it is
clear that the factual
findings were not made by the deponent,
viva voce
evidence
should be presented to prove the point in dispute. Many JBS forms,
which can legally be submitted to a court in terms
of section 212(4),
not only mention the factual findings made by the medical
practitioner (for example, that lacerations or penetrating
wounds
were found on the body of the victim) but, in cases of murder or
culpable homicide, also contains the conclusion (or opinion)
what the
cause of death was. Such conclusion or opinion is, as was indicated
above, not admissible in terms of the section 212(4)
statement. If
the cause of the death is in dispute in a particular matter,
viva
voce
evidence should be preferably be presented to prove such.
[15]
If the affidavit/certificate complies with the above-mentioned
requirements, and if the document (affidavit/certificate) is
submitted to court, it shall constitute
prima facie
proof of
the facts thus established. The word shall as contained in the
sections, indicate that the court is compelled to accept
the document
and that the facts contained in that document became
prima facie
proof. The court has no choice or discretion regarding this type of
evidence and no further requirements/ qualifications is legally
necessary.
Prima facie
proof means that credible proof to the
contrary by means of rebutting evidence is still possible. In the
absence of such proof
to the contrary, the
prima facie
proof
will become conclusive proof. In
S v Abel
1990 (2)
SACR 367
(C)
on 370 Scott J states: -
"In terms of
these sections the certificate is prima facie proof of its contents,
provided, of course, it complies with the
requirements of the
sections. It follows that in the absence of other credible evidence,
the prima facie proof will become conclusive
proof."
[16]
Counsel for the appellants contended correctly, so in my view, that
the provisions of section 212(4) of the CPA were not applicable
in
that the private practitioner was not a person employed by the State
or designated by the Minister as required in terms of the
Act.
[17]
The question therefore becomes whether or not the JBS form should
have been accepted as
prima facie
evidence of the fact
required to be established in proving the aggravation of the
sentence.
[18]
It was furthermore, contended on behalf of the appellants that it was
incorrect to argue on behalf of the State that there
was no remorse
shown by the appellants and the court was referred to,
inter alia,
S v Tladi
1994 (1) SACR 174
(NC).
[19]
The issue in
S v Tladi
supra
was different from
the issues before this court. In that case the court had to deal with
whether or not the accused could be convicted
of both dealing in
dagga and possession thereof arising from the same facts. The accused
had pleaded guilty to possession of dagga
and not guilty to dealing
in dagga. The State did not accept the plea on the alternative charge
and requested the court to question
the accused in terms of section
112(1) (b) of the CPA. That case dealt with whether or not the State
could require the court to
question the accused in terms of the
section where the accused, charged with the main count of dealing in
dagga (to which he had
pleaded not guilty) and another court of
possession of dagga, (where he pleaded guilty) could be questioned by
the court to make
admissions to establish the elements of the main
charge which he had pleaded not guilty to. The court found that if
the request
by the prosecutor for the court to question the accused
is not for
bona fide
purposes of establishing the elements of
the charge to which the accused had pleaded guilty, such request
amounted to irregularity.
[20]
In this case, there is no doubt that the elements of assault with the
intent to do gross bodily harm were established by the
admissions
made by the appellants in their statements made in terms of the plea
of guilty.
[21]
It cannot be denied that the plea of guilty on the charge should have
been taken into account as a factor when sentencing was
considered
together with all other personal circumstances of each appellant.
[22]
I now consider whether the trial court was correct in accepting that
the J88 form purportedly complied with section 212(4)
(iv) of the
CPA.
[23]
As already stated, the provisions of section 212(4)(iv) of the CPA
are peremptory.
[24]
The intention of the legislature is clearly to ensure that production
of evidence of a fact required to be proven by an expert
is
simplified by the certificate or the J88 form.
[25]
In proving such a fact intended in the section, the expert must be in
the employment of the State or any organ referred to
in section
212(4) of the CPA.
[26]
It is undisputed that Dr. I.R. Van der Merwe was neither in the
employ of the State nor was he or she designated by the Minister
when
he or she completed the J88 form as contemplated in section
212(4)(iv) of the CPA.
[27]
As a consequence, the finding made by the trial court in determining
the appropriate sentence, was based on a flawed certificate
purported
to be a J88. This in my view, constitutes irregularity and the
appellants were prejudiced when their sentence was considered.
[28]
The last issue for determination is whether or not the non-parole
order made in terms of section 276B of the CPA by the trial
court was
(competent) regular.
[29]
In
Jimmale and Another v S
(CCT223/15) [2016) ZACC
27 (30 August 2016)
the Constitutional Court held that non-parole
order should be made only in exceptional circumstances: "
which
can be established by investigation of salient facts, legal argument
and sometimes further evidence upon which a decision
for non-parole
rests."
[30]
The Supreme Court of Appeal in
S v Botha
2006 (2)
SACR 110
(SCA)
held that judicial interference, on non-parole
orders, even where it manifests itself in the form of a mere
recommendation, is
unacceptable in that it is unfair to both an
accused person and the correctional services authorities. The same
approach was followed
in
S v Stander
2012 (1) SACR
537(SCA)
where the Court held that the provisions of section 276B
of the CPA: "
do not put the court in any better position to
make decisions about parole than it was in prior to its enactment
."
[31]
The lack of control of courts over the minimum sentence to be served
can lead to tension between the Judiciary and the Executive
because
the executive action may be interpreted as an infringement of the
independence of the Judiciary.
[3]
[32]
The non-parole order may not exceed two thirds of the prison term.
[33]
In
Mthimkhulu v S
2013 (2) SACR 89
(SCA)
the
Supreme Court of Appeal dealt with an order of a non-parole period
imposed in terms of section 276B(2) of the Act. The trial
court
failed to invite the parties to address the court before it imposed
the non-parole order. The court held that the failure
might well,
depending on the case, constitute an infringement of the accused's
fair-trial rights.
[34]
It is evident from the precedent that a section 276B non-parole order
should not be resorted to lightly.
[35]
The trial court should always be mindful that the parole
considerations are the domain of the Correctional Services Department
and should, in my view, make such orders in exceptional
circumstances.
[36]
There is no evidence on the record in the present matter that the
appellants were afforded a hearing before the non-parole
order was
made.
[37]
The trial court on page 30 of the record of the sentencing
proceedings stated as follows: -
"
The court has
decided therefore that a term of imprisonment must be imposed. The
court wants to explain that the sentence the court
decided on, is one
in terms of Section 276(1) of the Criminal Procedure Act 51 of 1977,
which means that one/sixth of the term
imposed, must be served by the
accused. Not the whole term, but one/sixth, in other words, the terms
of imprisonment that you will
serve is one of six months, but the
term imposed by the court in terms of section 276(1) is three years,
which means that after
six months you might be released by the
correctional services department
."
[38]
The trial court has failed to provide reasons as to what factors it
took into account when imposing the non- parole order of
six months.
[39]
In light of the above I find that the trial court misdirected itself
by imposing the non-parole order without affording the
appellants a
hearing.
[40]
It is for the above reasons that this court is of the view that it is
justified to interfere with the sentence imposed by the
trial court.
[41]
In the result, the following order is made: -
Order
1. The appeal against the
sentence is upheld
2. The non-parole order
of the trial court is set aside.
3. The order of the trial
court sentencing the appellants to three years is set aside and
substituted with the following order:
(i) The appellants are
sentenced to one year imprisonment wholly suspended for three years
on condition that they are not found
guilty of a similar offence.
4. The sentence in (i)
above is antedated to 3 February 2015 when the trial court imposed
its imprisonment sentence.
_____________________
M
L SENYATSI AJ
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered
_____________________
E
MOLAHLEHI J
JUDGE
OF THE HIGH COURT
For
the appellant
Advocate Van Wyk
Instructed
by
Muthray & Associate Inc.
For
the Respondent
Advocate K Van Rensburg
Instructed
by
The Director of Public Prosecutions
[1]
See
S
v Pieters
1987
(3) SA 717
(A).
[2]
See
S
v Matyltyi
2011
(1) SACR 40
(SCA);
[2010] 2 All SA 424
(SCA) (30 September 2010
).
[3]
Jimmale
and Another v S
supra.