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2015
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[2015] ZAFSHC 120
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Masakhane v S (A369/2007) [2015] ZAFSHC 120 (1 June 2015)
IN THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal Number: A369/2007
In
the appeal of:
ANDRIES
MAKHASANE
Appellant
v
THE
STATE
Respondent
CORAM:
NAIDOO, J and WILLIAMS, AJ
JUDGMENT
BY:
WILLIAMS, AJ
HEARD
ON:
1 JUNE 2015
DELIVERED
ON:
11 JUNE 2015
[1]
The appellant was charged in the regional court at Bloemfontein on
one count of contravening sections 11, 13(3) and 15 of the
Stock
Theft Act, 57 of 1959, in that on or about the 10
th
to the 13
th
of January 2003 at or near Edenburg he wrongfully and intentionally
stole eight Merino sheep valued at R2 400, 00, being the property
of
HF Theron.
[2]
The appellant was legally represented and pleaded not guilty to the
charge.
[3]
On 5 October 2005 the appellant was convicted as charged. He was
sentenced to 24 months’ imprisonment.
[4]
The appellant applied for leave to appeal in the court
a
quo
against
apparently both the conviction and the sentence which leave was
granted. The word “apparently” is used for
reason that
the heads of argument of the appellant only referred to an appeal
against the sentence.
[5]
The chronology of the appeal can be summarized as follows:
5.1
After sentence was handed down the appellant obtained the services of
a fresh attorney, A Coetzee of the firm
Goodrick & Franklin. Last
mentioned filed an application for leave to appeal on 23 November
2005. On the said date the tapes
which had recorded the proceedings
were not available in order for the record to be transcribed. The
court refused to grant bail
pending the appeal.
5.2
It transpired that one of the tapes could not be found, as a result
of which the magistrate was obliged to
reconstruct the record to the
best of his ability. The court on 23 January 2006 thereupon granted
bail to the appellant pending
appeal, whilst the record was being
reconstructed. According to the record, a bail receipt in the amount
of R1 000, 00 was issued
by the head of the Grootvlei prison on the
said date. The appellant presumably then was released on bail.
5.3
On the date of the further postponement, namely 7 April 2006, the
appellant did not appear and a warrant for
his arrest was issued. His
bail was provisionally estreated. At the next hearing on 24 April
2006, the appellant was still absent
and his bail was finally
estreated to the State.
5.4
Thereafter, on 19 June 2006, the appellant appeared in person before
court. Mr Coetzee had by then long since
withdrawn as his
representative. It appears from the record that on 3 July 2006, the
appellant applied for legal aid and was granted
bail of R100, 00
pending appeal. According to the record a bail receipt in this amount
was issued by the Magistrate’s court
of Edenburg on 19 August
2006. The appellant was presumably once again released on the said
date.
5.5
Thereafter, on 20 September 2006, it appears that the reconstruction
of the record had been finalized. For
some inexplicable reason, the
appeal was only set-down for hearing at some stage during October
2014, some eight years later.
[6]
From information conveyed to me by Mr Makhene for the appellant, as
well as by Mr Hoffman for the prosecution, the appellant
was not
satisfied with the reconstruction and discussions had to be held with
the presiding magistrate in order to clear certain
issues up.
Understandably, after all this time, the magistrate could not add
anything and the matter was finally enrolled for hearing
on 1 June
2015 before this court.
[7]
Mr Makhene could not provide any argument on the merits as his client
was of the opinion that a certain critical issue pertaining
to his
evidence in chief had not been recorded. It was thereupon pointed out
by Mr Hoffman that this particular issue had never
been put to the
first state witness and in consequence nothing could turn upon the
evidence even if it had been recorded. Both
Mr Makhene and Mr Hoffman
agreed that the sentence of 24 months’ imprisonment was not
inappropriate and could not be interfered
with. Mr Hoffman further
argued that the conviction could not be set aside.
[8]
The dilemma that now faces the court is the present position of the
appellant. Some almost ten years has passed since he was
convicted.
All in all it appears as if he was incarcerated for a total period of
four months, after being sentenced, before bail
was granted pending
appeal.
[9]
In view of the fact that it was not the applicant’s fault that
the matter was delayed for so long, it would be highly
prejudicial to
the appellant at this stage to order him back to prison to complete
his sentence, should the conviction and sentence
be confirmed.
As stated above, the appeal was never set-down for some unknown
reason. There is no explanation from either
state or the appellant
regarding the inordinate delay in setting this matter down for
hearing. It is regrettable that neither party
appears to have acted
in the interest of Justice as well as that of the appellant in
ensuring an expeditious end to this matter.
[10]
It is true that the evidence of the accused has not been transcribed
as it formed part of the missing record. The magistrate,
in his
reconstruction of the record, indicated that the accused confirmed
what was said in his plea explanation and what was put
to the State
witnesses as his version. The plea explanation and cross-examination
of the State witness’s forms part of the
transcribed record. It
is my view that the transcribed records together with the
reconstructed portion are sufficient for this
court to hear the
matter and make a finding. I agree with Mr Hoffman’s submission
that if there was anything further in the
appellant’s evidence
that was not part of his plea explanation or in the propositions put
to the State witness, nothing much
would turn on it, as the State
would no doubt argue that it was in any event a fabrication, added
on by the
applicant in his evidence under oath. With regard to the conviction,
I am satisfied that the trial court’s evaluation
of the
evidence was correct and that the court did not misdirect itself, in
any way, in convicting the appellant as it did.
[11]
With regard to sentence it is true that an appeal court may only
interfere with sentence if the trial court has misdirected
itself in
the application of the law or the facts in arriving at the sentence
it did, or if the sentence is shockingly inappropriate.
[See S v
Rabie 1975(4) SA 855 (A) and S v Giannoulis 1975 (4) 867 (A).
In
the present matter I can find no misdirection on the part of the
trial court, and as pointed out, neither Counsel before me was
able
to assail
the sentence in
anyway. Having said that, I am of the view that while this court will
not interfere in the sentence imposed, it
is still the duty of this
court to ensure that Justice and fairness prevails in the matter. As
pointed out the appellant has spent
4 months in custody, post
sentencing. It has been almost ten years since he was sentenced, and
the delay in this matter is through
no fault on his part. In such a
situation, which I consider to be out of the ordinary, an unusual
remedy is called for. I feel
that justice and equity can be served by
suspending the remaining portion of sentence under certain
conditions.
[12]
In the circumstances, I propose that the following order be made:
1.
The conviction and
sentence are confirmed.
2.
The remaining portion
of 20 months of imprisonment is suspended for a period of three
years, on condition that appellant is not
convicted of stock theft
committed during the period of suspension.
3.
The suspended sentence
will take effect on the date of this judgment being handed down.
______________________________
A.
WILLIAMS, AJ
I
concur, and it is so ordered.
______________________________
S NAIDOO, J
On
behalf of the appellant:
Adv. Makhene
Instructed by: Legal Aid
BLOEMFONTEIN
On
behalf of the respondent:
Adv. Rudolf
Instructed by: DPP
BLOEMFONTEIN