About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2015
>>
[2015] ZAFSHC 67
|
|
S v Pylman (30/2015) [2015] ZAFSHC 67 (26 March 2015)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 30/2015
DATE: 26 MARCH 2015
In the review between:-
STATE
And
KENNY ROY
PYLMAN
.................................................................
Accused
CORAM: G.J.M. WRIGHT et S.J.
REINDERS, AJJ
JUDGMENT: G.J.M. WRIGHT, AJ
DELIVERED ON: 26 MARCH 2015
REVIEW JUDGMENT
[1] The Accused was convicted of theft
in the District Court, Ficksburg. He was sentenced to 24 months
imprisonment in terms of
section 276(1)(b)
of the
Criminal Procedure
Act 51 of 1977
.
[2] After the Accused pleaded guilty,
the trial magistrate proceeded to question him to ensure that he
admits all the elements
of the offence charged. The Accused
explained that he went to the Caltex Garage to buy cigarettes. He
noticed cash lying around
and grabbed some R 100,00 notes. He
admitted that he took R 3 900,00. The Accused himself worked near
the garage, operating a
car wash business.
[3] The prosecutor accepted the plea
(and by implication the explanation provided during questioning) and
the Accused was found
guilty accordingly. This provided the factual
matrix on the strength of which the sentence should have been
considered and imposed.
Compare: S v Thole
2012 (2) SACR 306
(FB) at
308 h – 309 a. In S v Van der Merwe
2011 (2) SACR 509
(FB) at
518 f it was worded as follows:
“The plea, once accepted, defines
the lis between the prosecution and the defence. Once the parameters
of the playing fields
are so demarcated, it become [sic] foul play to
canvass issues beyond. The rules of fair play have to be strictly
enforced.”
[4] The Accused did not testify in
mitigation of sentence. He presented certain personal information
from the dock in the form
of an address to court. It is during this
address that the magistrate decided to question the Accused regarding
his modus operandi
on the day that he stole the money. The
magistrate went as far as intimating that he does not believe the
Accused’s story
regarding the cigarettes.
[5] The magistrate’s tone during
this series of questions was accusatory and even hostile. The
following may be quoted as
an example of this attitude of intolerance
towards the Accused:
“COURT: Now, as you leave your
car wash you are going to Caltex the picture I have in my mind is
that you are going for no
reason but knowing that there is cash you
can steal there? Right?
ACCUSED: Every day, your worship when
it is late after closing time I normally buy cigarette at that shop.
COURT: But you did not buy the
cigarette this time around?
ACCUSED: Yes, your worship.
COURT: Yes, you did not buy it now,
this is why I am saying the thought that comes to my mind is that you
went there for nothing
but you went there to steal under the guise of
buying a cigarette, which you did not buy anyway?”
[6] During his questioning of the
Accused, the trial magistrate indicated a preference for restorative
justice in the form of compensation
to the complainant. This in
itself is a lofty ideal, but the magistrate’s demeanour in
dealing with the issue leaves much
to be desired. Instead of
properly questioning the Accused to gather sufficient details
regarding his financial situation, the
magistrate bombarded the
Accused with comments, illustrating his personal view of the matter.
The following is quoted as examples:
“COURT: That Pylman Car Wash let
it take the money back to Caltex business. Then I will be satisfied.
If you do not want
to do that say to me now. I want that R 2 000 –
00 you make from your business, you will pay back Caltex Garage R 3
900
– 00. From Pylman Car Wash to Caltex Garage and you do not
go to Caltex Garage. You are going to steal when you go there.”
And then later:
“ACCUSED: I can do it if I am
outside.
COURT: Yes, yes, yes I know that. I
know that but you do not go and steal people’s money. Money
made from Pylman’s
Car Wash cash. You bring it here, Friday
you bring it here and then the next month you pay off the rest and
thereafter stop stealing.
How about that?
ACCUSED: I will be able to bring half
of that amount by next month your worship.
COURT: No, no, no this Friday? This
Friday is the end of the month 29 August. I am in a hurry that
Caltex get their money, because
what they are going to do they are
going to increase the petrol and other oil products they have, in
order to get their money back
that you stole. And then those who buy
petrol there like myself will be charged more for your theft.”
[7] The information given by the
Accused during this questioning by the magistrate did indicate the
following information relevant
to the possibility of compensating the
complainant:
(i) The Accused is self-employed.
(ii) He earns between R 2 000,00 and R
3 000,00 per month.
(iii) He is married and he has three
daughters aged seven years, six years and nine months respectively.
[8] The interaction between the
magistrate and the Accused took place on 25 August 2014. The Accused
was in custody since his arrest
on 8 August 2014. It follows
logically that the Accused were unable to earn an income for most of
August. Yet the magistrate
expected him to have R 2 000,00 ready
within the next four days (before 29 August 2014). This attitude of
the magistrate paid
scant regard to any measure of fairness towards
the Accused and made a mockery of any real attempt at compensation.
[9] Restorative justice attempts to
restore the relationship between an offender and the complainant (as
representative of the community
at large). Instead of merely
depriving an accused person of his freedom through imprisonment,
restorative justice aims at giving
an opportunity for a different
version of punishment, such as compensating a victim of a crime
through financial means. Either
section 300
(compensation) or
section 297(1)(b)
(suspension on condition of compensation) can be
used.
[10] In the end the magistrate did not
follow through on his intentions, and neither
section 300
or
section
297(1)(b)
was utilized.
[11] The Accused’s answers to the
magistrate’s questions were not under oath. Yet the magistrate
used the information
provided in considering sentence. A cardinal
factual allegation made at the sentencing phase of a trial should be
proved under
oath. See: S v Van Neel; S v Rooi
1980 (1) SA 363
(C).
It must never be allowed that an accused is prejudiced by
informality. The procedure followed by the court must largely
be
determined by considerations of fairness to the accused. See: S v
Jabavu
1969 (2) SA 466
(A) at 472 E.
[12] It is not in accordance with the
fairness and impartiality which the bench should always maintain, for
a presiding officer
to make a special effort to get the accused to
disclose aggravating factors. See: S v Kiewiets
1977 (3) SA 882
(EC)
at 883 F – G. This appear to have been the intention of the
magistrate in enquiring after the specific reason for the
Accused’
presence at the Caltex Garage on the day in question.
[13] The guidelines of questioning by a
presiding officer were stated as follows in S v Rall
1982 (1) SA 828
(A) at 831 A to 833 B:
(i) The court must not conduct its
questioning in such a manner that its impartiality and fairness can
be doubted.
(ii) The court must not take part in
the case to such an extent that the court obscures the points in
issue. See: S v Maseko
1990 (1) SACR 107
(A); S v Du Plessis
2012 (2)
SACR 247
(GSJ) at 254 h – i.
(iii) The court must not intimidate or
upset a witness or the accused to such an extent that the answers are
weakened or credibility
degraded.
[14] It is irregular for the
questioning by a presiding officer to amount to cross-examination of
an accused person. S v Mathabathe
2003 (2) SACR 28
(T). These
general principles are equally applicable to questioning of an
accused in respect of evidence relating to sentence.
See: S v
Aspeling
1998 (1) SACR 561
(C).
[15] Judicial fairness and dignity
should be the hallmark of judicial proceedings. See: S v Tyebela
1989 (2) SA 22
(AD) at 29 G – 30 E. The magistrate failed
miserably in this regard. In the present matter the Accused was
treated with
disrespect.
[16] I will accept in the trial
magistrate’s favour that he or she was well aware of a
presiding officer’s duty to conduct
an enquiry as to the
existence of all factors and information relevant to the sentencing
discretion. It is however the manner
in which the magistrate
proceeded to elicit the information that causes concern. The
inquisitorial role of a court in the process
of gathering information
must of necessity be limited to procedures which are fair.
[17] The magistrate acted in a manner
that justifies an inference that he or she was not open-minded,
impartial or inclined to fairness
towards the Accused.
[18] The record shows a plethora of
postponements. During all of this, the Accused lost his business and
with that his only source
of income. It therefore became impossible
for him to comply with the magistrate’s idea of restorative
justice. And by the
time that the sentencing judgment was finally
handed down, restorative justice was not even mentioned.
[19] This begs the question as to
whether the magistrate made an actual order of compensation. The
magistrate indicated to the
Accused that he expects of him to
compensate Caltex for the full amount that has been stolen (R 3
900,00). These comments were
made during the Accused’s address
on sentence and were never formulated in the form of a suspensive
condition or actual order.
I will except in favour of the Accused
that it did not amount to an actual order which he then failed to
comply with.
[20] The Accused pleaded guilty on 25
August 2014. At that time the prosecutor requested the trial court
to finalise the matter
without SAP69’s, thus without any
previous convictions proved against the Accused. The matter was
thereafter postponed several
times. On 18 February 2015 the State
was given a second opportunity to address the court on sentence. The
prosecutor was then
armed with SAP69’s and proceeded to prove
several previous convictions against the Accused.
[21] It is important to keep in mind
that at this time the Accused already had his opportunity to either
present evidence in mitigation
or to address the court. As already
stated, the Accused elected to address the court. After his previous
convictions had been
proven, the Accused was again invited to address
the court. Unfortunately the magistrate did not find it necessary to
explain
to the Accused to what extent his previous convictions may be
used in aggravation of sentence. It therefore came as no surprise
that the Accused did not put any further submissions forward.
[22]
Section 271(1)
of the
Criminal
Procedure Act provides
that –
“The prosecution may, after an
accused has been convicted but before sentence has been imposed upon
him, produce to the court
for admission or denial by the accused a
record of previous convictions against the accused.” [own
emphasis]
[23] The various postponements provided
an opportunity for the State to get its house in order and obtain the
necessary documentation
regarding the Accused’s previous
convictions. It does not appear from the short judgment on sentence
to what extent, if
at all, the Accused’s previous convictions
were found to be an aggravating factor. The sentence that was
eventually imposed
is such that it may be assumed that the previous
convictions did play a role.
[24] That being said, the nature and
form of the sentencing judgment itself deserves criticism.
[25] In deciding on an appropriate
sentence, a presiding officer has to make a value judgment in an
objective manner so that it
explains the sentence. See: S v Vries
1996 (2) SACR 638
(Nm) at 640 g – h. The judicial officer
imposing the sentence should therefore provide an explanation for the
sentence that
he or she decides upon.
[26] The magistrate failed to adhere to
this most basic principle of his or her function as judicial officer.
This in itself was
unfair to the Accused in that no reasons was
provided as to why the specific sentence was imposed. The magistrate
in almost telegram
style ran through the basic principles
traditionally considered when imposing a sentence (the so-called ZINN
triad). The judgment
does not in any way explain what factors were
pertinently taken into account or what weight was afforded to each
factor and circumstance.
[27] Fortunately for the magistrate
(and maybe unfortunately for the Accused) the sentence is appropriate
in the circumstances,
especially taking into account his previous
convictions. The Accused namely has three previous convictions for
theft and two previous
convictions for housebreaking with the intent
to steal and theft. His other previous convictions are not relevant
to the present
crime as they are for assault and malicious damage to
property.
[28] Despite the irregular and
unjudicial conduct of the magistrate, the sentence should stand.
ORDER
In the result the following order is
made:
1. The Accused’s conviction and
sentence are confirmed.
G.J.M. WRIGHT, AJ
I agree.
S.J. REINDERS, AJ