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[2015] ZAFSHC 185
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S v Chake (130/2014; 19/860/10) [2015] ZAFSHC 185; 2016 (2) SACR 309 (FB) (12 October 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Review
Number: 130/2014
Magistrates’
Court Case Number: 19/860/10
In
the matter between:
THE
STATE
and
VUYISILE
CHAKE
CORAM:
VAN
ZYL J
et
MURRAY,
AJ
JUDGMENT
BY:
MURRAY,
AJ
DELIVERED
ON:
12
OCTOBER 2015
[1]
This matter came before this Court from the District Court,
Bloemfontein, as a Special Review in terms of s 304(4) of the
Criminal
Procedure Act, Act 51 of 1977 (“the CPA”)
[1]
.
[2]
THE
BASIS FOR THE SPECIAL REVIEW:
2.1
In 2010 at the age of 18 the accused was sentenced to one year’s
imprisonment, which sentence was wholly suspended
for five years in
terms of s 297(1)(b)
[2]
of the
CPA. In 2014 the District Court: Bloemfontein (“
the
Court
a
quo
”)
put into operation the suspended sentence in terms of s
297(9)(a)(ii), and, due to the specific circumstances of the case,
decided to apply s 280(2)
[3]
to
order the sentence to run concurrently with the sentence that caused
the suspended sentence to be put into operation.
2.2
The s 280(2) order created a jurisdictional issue, however. The
District Court is a “
creature
of statute
”
and subject to precedent and the said order is in conflict with,
inter
alia,
the judgments in
S
v Mawatla
[4]
,
S
v Osborne
[5]
,
S
v Mothibi
[6]
,
S
v Govender
[7]
,
S
v Chabalala
[8]
,
S
v Breytenbach
[9]
,
S
v Hoffman
[10]
,
(“
the
pre-constitutional cases
”)
and
S
v Brand
[11]
.
2.3
The common factor and the precedent set in the abovementioned list of
judgments, is that they held, with reference
to the interpretation of
s 280(2), that a court which brings into operation an earlier
suspended sentence is not empowered to order
that sentence to run
concurrently with a new or any other sentence. In direct
contrast therewith, however, a ‘trial
court’ which
convicts the accused of a subsequent offence which invokes the
enforcement of a previously suspended sentence,
may order its
sentence to run concurrently with the previously suspended sentence.
It is at this anomaly that the Special
Review is directed.
2.4
In
casu
the
relevant magistrate submitted her decision to invoke Section 280(2)
to order concurrency for this Special Review with a submission
that
the premises for the conclusions in the quoted case law, namely that
the CPA makes no provision for a court’s competence
to order
concurrency outside of s 280, is wrong, and that the narrow
interpretation of the ‘
court’
referred to in s 280 as ‘
the
trial court’
brings about unfair and unconstitutional consequences for the
accused. She therefore requested this Court to revisit the
issue in law.
2.5
The magistrate submitted, furthermore, that although s 304(4)
determines that a matter is to be sent on review
when the
“
proceedings
were not in accordance with justice
”,
in the present instance that principle was not applicable since the
proceedings were in accordance with justice but not
in accordance
with the law. In her submission the application of the law in
the present case would have caused an injustice,
wherefore she
requested this court to “
ponder
the creation of a new or revised interpretation of the law
”.
[3]
THE
FACTS OF THE PRESENT CASE:
The
accused, Mr
Vuyisile
Chake
,
who is currently 24 years old, on two separate occasions, in 2010 and
2011, smashed a window to gain entrance into a building.
In
both instances he was prevented from stealing anything or getting
away with any stolen property.
3.1
Case
number 19/860/10 (The First Case):
3.1.1
On 14 May 2010, when he was just 18 years old, Mr Chake was convicted
in the District Court of Bloemfontein of attempted housebreaking
with
intent to steal for the crime which was committed on 26 April 2010.
3.1.2
He pleaded guilty in terms of s 112(2) of the CPA and was accordingly
convicted and in terms of s 276(1)(b) was sentenced
to one year’s
imprisonment. In terms of s 297(1)(b) his sentence was wholly
suspended for five years on condition that
he not be convicted of
housebreaking with intent to steal committed within the period of
suspension.
3.2
Case
number 17/933/11 (The Second Case):
3.2.1
On 23 February 2012, about two years after the first sentence, he was
convicted in the Regional Court of the Free State, sitting
in
Bloemfontein, of housebreaking with intent to steal and theft for the
crime perpetrated on 31 May 2011. The conviction
again followed
upon a plea of guilty in terms of Section 112(2). On
14 March 2012 he was sentenced to five years’
imprisonment in
terms of Section 276(1)(b).
3.3
Since the second offence was committed during the five-year
suspension of his one-year term of imprisonment
for the first
conviction, it called for the putting into operation of the suspended
sentence. The State only brought
the s 297(9)(a)(ii)
application to do so two years later, in 2014, however.
3.4
The magistrate, in putting the suspended sentence into operation,
applied s 280(2) to order the concurrent
running of the newly
enforced suspended first sentence with the second sentence, contrary
to the precedent set by the list of cases
above, and so initiated
this Special Review.
[4]
THE
PRECEDENT v THE PURPOSE OF SECTION 280:
4.1
To determine whether the precedent indeed results in injustice and
unconstitutionality by constraining
or curbing the power of the court
which puts into operation the suspended sentence, it is necessary to
examine the origin, interpretation
and present application of s 280
in view of the Constitution and the need for interaction between s
280 and other provisions of
the CPA, such as s 297 and s 275.
4.2
Terblanche
[12]
described the
purpose of Section 280 as that of preventing a too severe cumulative
effect where more than one sentence is imposed.
He
described it as follows:
“
When
a sentence is imposed for each offence, a
cumulative
effect
may develop. In other words, the combined punishments may become too
severe. This was well explained by Reynolds J in S v
Mpofu
[13]
:
‘
[i]n
all multiple crime cases the courts pay regard to what
Thomas
describes as ‘the totality principle’. (The Court)
must look at the totality of the criminal behaviour and ask
itself
what is the appropriate sentence for all the offences.’ …
In effect, the accused normally receives a
‘discount’ for
bulk offending, particularly where the various counts are similar in
nature, for the imposition of a
separate and consecutive sentence for
each individual charge would result in a very high aggregate penalty
which would be disproportionate
to the moral blameworthiness of the
accused having regard to his line of conduct as a whole.’”
4.3
S 280(1) determines that:
“
When
a person is at any trial convicted of two or more offences or when a
person under sentence or undergoing sentence is convicted
of another
offence, the court may sentence him to such several punishments for
such offences or, as the case may be, to the punishment
for such
other offence, as the court is competent to impose.’
4.4
S 280(2), in turn, determines that:
“
Such
punishments, when consisting of imprisonment, shall commence the one
after the expiration, setting aside or remission of the
other, in
such order as the court may direct, unless the court directs that
such sentences of imprisonment shall run concurrently.”
4.5
The precedent, namely that only the ‘
trial
court’
has jurisdiction to order concurrency, appears to have its origin in
S
v STRYDOM
[14]
in which Caney J, in holding that s 333(2),
[15]
the predecessor of s 280(2), empowered “
the
court”
to direct that sentences run concurrently, stated that
[16]
:
“
this
court in that sub-section is without doubt the court referred to in
sub-section (1), that is to say, the trial court passing
sentence at
the conclusion of the trial.”
4.6
That remark led subsequent courts to hold that the ‘
trial
court’
which Caney referred to, with reference to s 333(1) (and presently to
s 280(1)), was the court which convicted the accused of breaching
the
suspending condition. And to hold that
only
that court was competent to order concurrent running. And that
that court was empowered
only
to order the concurrent running of its own sentence
with the newly put into operation or soon to be put into operation
suspended
sentence
,
not
vice
versa
(“the precedent”).
4.7
But that is not what Caney J said. One needs to read that
pronouncement in the context of the
facts of the case and his further
remarks.
4.8
The facts of that case were that a
regional
magistrate
in
Johannesburg
in January 1964 sentenced the accused to fifteen months’
imprisonment (first sentence), wholly suspended for three years
on
condition that he not be convicted during that period of any offence
involving dishonesty. However, on 16 September 1966
he was
sentenced in
East
London
to imprisonment for fraud (second sentence), and on November 1966 he
was again convicted and sentenced to imprisonment for fraud
in
Wentworth (
Natal)
(third sentence).
4.9
The State only applied (in
Durban
)
in December 1966 for the suspended sentence to be put into
operation. The accused asked that magistrate to order his
suspended
sentence (imposed in 1964 by the regional magistrate in
Johannesburg) to run concurrently with the two later sentences
imposed
in East London and Wentworth. The magistrate
refused to do so, stating that he was not empowered to make such an
order.
Caney J held that to be correct.
4.10
He then added that
[17]
:
“
The
only court (other than a Court sitting on appeal from the sentence of
the trial court) competent to make that order …
was the
regional
magistrate who sentenced him in Johannesburg
on 30
th
January, 1964,
and
the time for doing so was when he passed that sentence
.
It would have been competent for the court at East London and the
court at Wentworth to have made such orders under s 333(2)
relating
in each instance, to the sentences passed by them
– but the Johannesburg sentence was not then in operation.”
4.11
On his version therefore, at least two courts were competent to order
concurrency in terms of s 280(2), namely the court
a
quo
which
originally imposed the suspended sentence, at the time he imposed and
suspended it; and the court(s) convicting and sentencing
the accused
for the breach of the suspending condition. In his view, each
of them could only order concurrent running of
its own sentence with
the other court’s sentence. Caney J therefore made
it clear that the court putting the
suspended sentence into operation
is not competent to make a concurrency order.
4.12
That ‘precedent’ has caused the setting aside of numerous
concurrency orders issued pursuant to the enforcement
of suspended
sentences.
4.13
It is in view of that decision that Flemming J in
S
v MAWATLA
[18]
held that :
“
No
authorisation exists outside of s 280 for a court without inherent
jurisdiction to order concurrency of sentences … No
authorisation in s 280 or any other provision allows an institution,
person or a court which is not the trial court, to order
concurrency.”
[19]
4.14
And that is the view which is ‘under attack’ in the
present case as too narrow and restrictive to allow
for the proper
application of the constitutional requirements for sentencing.
[5]
THE
SUBSEQUENT CASE LAW:
5.1
Caney’s strict interpretation of ‘
the
court’
in
s 280 as ‘
only
the trial court’
,
caused confusion in subsequent cases. To put it mildly, as per
Kruger J in
S
v JEFFRIES
[20]
:
“
The
interpretation given by various courts to s 280(2) have not been
harmonious.”
Yet numerous review courts unquestioningly applied and even expanded
on his interpretation.
5.2
In
S
v Mawatla
[21]
Flemming J highlighted what appeared to be the rationale behind
Caney’s interpretation: namely that s 280(1) primarily
functioned
as a jurisdictional provision to ensure that the trial
court’s power was neither curtailed nor affected by a sentence
which
had been or might be imposed on the accused in the same or
another trial, or in a previous case.
5.3
He held that s 280(1) itself did not deal with concurrency
(See also: Du Toit
[22]
and
Hiemstra
[23]
), but was only
linked to the concurrent running of sentences by the reference in s
280 (2) to “
such
punishments”,
which
phrase was replaced in 1993 with “
such
sentences of imprisonment”
.
[24]
5.4
Flemming J explained that the ‘punishment
s
’
which would justify, in instances other than conviction of multiple
offences in a single trial,
[25]
the reference in s 280(2) to “
punishments”
[i.e.
“
sentences”
]
in the plural, would be
the
sentence which the
trial
court imposed
,
on the one hand, and the sentence which had already been imposed or
might still be imposed because of another conviction.
5.5
Even at that time he emphasised the need for a court’s power to
order concurrency for the sake of fair
and just adjudication.
In order to facilitate such power, he proposed in
S
v Mawatla
[26]
a special interpretation of the wording of s 280(1), namely to read
the phrase “
someone
under sentence”
in
a wide sense to refer to “
someone
who has been sentenced but whose sentence has not yet been
completed”
.
5.6
The courts,
inter
alia
in
S
v HOFFMAN,
[27]
confirmed s 280(2) to be the provision that determines whether
sentences are to be served cumulatively or concurrently, and if
the
former, in what order they are to be served.
5.7
In
S
v GOVENDER
[28]
it
was held, with reference to
S
v Strydom,
that:
”…
s
280 (2) in common with its predecessor, s 333(2) of Act 56 of 1955,
“empowers the court” to direct that sentences
run
concurrently and this court is without doubt the court referred to in
ss(1), that is to say, “the trial court passing
sentence at the
conclusion of the trial”.
5.8
The court added, still with reference to Caney’s view, as
expressed in,
inter alia,
S v Osborne, S v Mothibi, S v
Nkosi
and
S v Johnston,
that:
“
whilst
that court is thus empowered to direct that its sentence should run
concurrently with an earlier suspended sentence which
it brings into
operation, it is not empowered to order such suspended sentence to
run concurrently with its new or any other sentence.”
[29]
And
stated (with reference to
S
v Delport alias Boucher
[30]
)
that:
“
it
is clear that the putting into operation of a suspended sentence
cannot be regarded as a sentence which follows upon conviction.”
5.9
Hiemstra explained
[31]
that
the only remedy for an accused on whom a new sentence had already
been imposed when another court was asked to put into operation
a
suspended sentence, would be to approach a competent court, in other
words a court of equal or higher jurisdiction than the one
which had
originally imposed the suspended sentence, to order the further
suspension of his suspended sentence.
5.10
The Court in
S
v OSBORNE
proposed, furthermore, that where the subsequent court orders
concurrency of the newly imposed sentence with the previously
suspended
sentence, such order needs to be made conditional upon the
accused actually serving the previously imposed, suspended
imprisonment.
[32]
This
was reiterated in
S
v HOFFMAN
[33]
and
in
S
v JOHNSON
[34]
,
in
both of which the precedent was followed.
5.11
Steenkamp J in
S
v MOTHIBI
[35]
added
that the court which imposes the new sentence can order it to run
concurrently with the suspended sentence which
it
is
about to put into operation
or which is
about
to be put into operation
by another court.
5.12
This approach was also followed in
S
v CHABALALA,
[36]
a case which demonstrates the extremely narrow view that
pre-constitutional courts took of this issue compared to the many
requirements
for the consideration of putting into operation a
suspended sentence today. In finding the trial court to be the
only court
competent to order concurrency of its sentence with the
newly enforced suspended sentence, the Court stated that because of
that:
“
the
only information that the court needs when an application is brought
to put into operation a suspended sentence, is the information
upon
which the court can find that the accused breached the conditions of
suspension which allows the court to enforce the suspended
sentence.
There is no reason, however, why during the application to put into
operation the suspended sentence any information
needs to be supplied
that the presiding officer in the case in which the accused had
already been convicted and sentenced and as
a result of which he had
breached the suspensive conditions, had taken into consideration when
he imposed sentence the possibility
that the accused might now also
have to serve the suspended sentence if it should be enforced.”
5.13
In
S
v NHLAPO
[37]
it was held that the court’s options upon considering the
putting into operation
of a suspended sentence in terms of s 297(7)
and 297(9) are (1) to further suspend the sentence with or without
additional conditions,
(2) to make no order regarding putting it into
operation or (3) to put the sentence into operation.
5.14
The magistrate in
S
v Govender
,
[38]
as
in
casu,
had
put a suspended sentence into operation and ordered it, in terms of s
280, to run concurrently with ‘
the
present term of imprisonment that the accused is serving’.
[39]
The magistrate maintained that it had been entitled to make such
order since it was “
of
the opinion that the cumulative effect of the two sentences would
place a very heavy burden on the accused’.
5.15
The review court, however, simply followed the Attorney-General’s
conclusion reached after merely reiterating the
principles set out in
Hiemstra,
S
v Strydom, S v Osborne,
and
S
v Mothibi,
and
with reference to
S
v Delport alias Boucher
,
[40]
to state that the putting into operation of a suspended sentence
could not be regarded as a sentence which follows on conviction
and
to find that the magistrate’s order was therefore incompetent.
Again, no attempt was made to investigate the reasonableness
of
the issue or to interpret the law.
5.16
Based on the above-mentioned cases, Hiemstra and Du Toit reiterated
that the putting into operation of a suspended sentence
cannot be
regarded as a sentence which follows on conviction, wherefore the
court which puts the suspended sentence into operation
cannot be
regarded as a trial court
[41]
.
Accordingly, such court in their view is not empowered to order an
earlier suspended sentence which it brings into operation
to run
concurrently with its new or any other sentence.
[42]
5.17
In
S
v BRAND,
[43]
too,
the review Court
[44]
held that
the magistrate’s directive when putting the suspended sentence
into operation [namely that the enforced suspended
sentence should
run concurrently with the two year jail term which had triggered the
enforcement and which the accused was by then
already serving], was
an irregularity and therefore incompetent.
5.18
In coming to this decision, the review Court simply accepted as law
the ‘principle’ that the power to make
a direction of
concurrency ‘
is
the absolute prerogative of the court imposing the ‘second
sentence’
(the triggering sentence) and that the power of the court granting
the enforcement order was ‘
strictly
confined to making such an order and nothing more’
.
5.19
Such a limitation on the enforcing court’s power might, in my
view, still be appropriate when the accused had
already
been
convicted
of, but not yet sentenced for,
a subsequent crime which breached the suspensive condition and which
conviction triggered the need to put into operation the suspended
sentence. In such a scenario the sentencing court could still
follow the steps proposed in
S
v Brand
[45]
and either attend to the putting into operation of the suspended
sentence itself or wait for the enforcing court to
put the
suspended sentence into operation or not. Only then would
the ‘sentencing court’ truly be able
to consider all the
circumstances of the case pertinent at that point in time and make an
informed decision as to whether it would
be in the interests of
justice to apply s 280(2) and order concurrency with that suspended
sentence, or not.
5.20
This view was echoed in
S
v MOTLOUNG
[46]
in
which Spilg J held that the power to direct the concurrent running of
a sentence with one which was subject to parole or suspension
was
expressly conferred on the court by s 280. Furthermore, that
the court which sentenced the accused for the subsequent
offence had
the power and responsibility to take into account the overall impact
of the enforcement of the unexpired portion of
the earlier sentence
on the overall sentence. He also based this view about
the appropriate court to order concurrence
on
S
v Mawatla, S v Govender
and
S
v Hoffman
.
5.21
I have not been able to find any case in which the
reasonableness
of the curtailment of the sentencing court’s power (namely to
only be allowed to order the concurrent running of
its
sentence
with the newly enforced or soon to be enforced suspended sentence,
but not the other way round
)
was
addressed. That curtailment seems illogical.
5.22
That the enforcing court is prohibited from ordering its newly
enforced sentence to run concurrently with an already
imposed
triggering sentence seems equally, if not even more, illogical. In
such an instance the enforcing court is the one which
is last to
impose its sentence and is the court which needs to consider all the
prevailing circumstances and currently relevant
factors and the
cumulative effect of the enforced sentence with the already existing
sentences if concurrency has not been ordered.
5.23
That the court which puts the suspended sentence into operation needs
to have the discretion to order concurrency, is
in my view not only
reasonable but also vital, especially in instances like the present
case in which the triggering sentence was
imposed in 2012 and the
application to enforce the suspended sentence was only brought two
years later, in 2014. The same
applies to a case like
S
v Brand
where
the suspended sentence was only put into operation six months after
the triggering sentence had already been imposed.
5.24
In my view, therefore, if the subsequent sentences have already been
imposed without the concurrency of the suspended
sentence having been
addressed, there can be no question of the subsequent court’s
discretion being fettered by the order
of concurrency made by the
court putting into operation the suspended sentence after having
conducted a full enquiry into the present
circumstances of the
specific case.
[6]
S
297: The ENFORCING COURT as a ‘TRIAL COURT’?
6.1
What needs to be examined, therefore, is whether
it is correct to say, especially in this Constitutional
era, that the
court which puts into operation a suspended sentence does not
function as and therefore should not have the same
power to order
concurrency as a sentencing or ‘trial court’ as defined
in
S
v Strydom
and the pre-constitutional cases which all stemmed from the putting
into operation of a suspended sentence. The magistrate
in
casu
submits that it cannot be correct, and I agree, for the reasons set
out below.
6.2
S 297 is the section which provides for the suspension of sentences.
The court in
S
v BREYTENBACH
[47]
referred to s 297 as a provision on which a court which tries an
accused for an offence which amounts to a breach of the suspensive
condition, may rely to assist it to impose a proportional sentence.
Spilg J’s reference in
S
v Motloung
,
(with reference to
S
v Coales
[48]
and
S
v Cele,
[49]
)
to
the fundamental principle of sentencing, namely that the cumulative
effect of several custodial sentences is to be taken into
account
when determining an appropriate period of imprisonment, is
particularly apposite.
6.3
S 297(1) determines that, where a court convicts a person of any
offence other than one for which the 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.”
6.4
Section 297(9) determines that:
“
(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), [as
in
casu
]
,
or subsection (4) or (5),
be
brought
before
the court which suspended the operation of the sentence
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 …sub-paragraph (ii),
put
into operation the sentence which was suspended
.”
[my emphasis]
6.5
In
S
v HOFFMAN
[50]
Selikowitz
J stated that the CPA (s 297(9)) provides the court which has to
adjudicate a breach of the suspensive conditions,
with
a discretion as to whether or not to put into operation the suspended
sentence
.
Should it decide not to put the sentence into operation and to
suspend it further, it may impose such conditions as could
have been
imposed when the sentence was originally imposed.
6.6
He stated, furthermore, that where the trial court itself has the
jurisdiction to consider the putting into
operation of the suspended
sentence,
“
It
should use its power in terms of s 297(7) or 297(9) to initiate
mero
motu
the proceedings to put the suspended sentence into operation.”
6.7
Where the condition for a suspended sentence was not complied with,
the
court
which postponed the sentence, or a court of equal or higher
jurisdiction may put the sentence into operation in terms of s
297(9)(a)(ii)
.
If the sentence is put into operation by a court which does not have
the necessary jurisdiction, however, an irregularity
is
committed.
[51]
As is
clear from the quoted cases, on the basis of
S
v Strydom,
presently
if the enforcing court orders concurrency, it is deemed not to have
had the jurisdiction to make such order; an irregularity
is deemed to
have been committed; and the concurrency order is set aside.
6.8
In
S
v MASETI,
[52]
in
compliance with Caney J’s view in
S
v Strydom
,
for instance, the court
a
quo
imposed
a sentence of 18 months’ imprisonment wholly suspended for five
years and also directed that, if the suspended sentence
were ever put
into operation, it could ‘
[n]ot
run concurrently with any [other] sentence imposed’.
But
the review court held that the wording of s 297 does not permit a
sentencing court that imposed a suspended sentence
to give directions
or to impose conditions on how in future the sentence was to be
brought into operation, i.e. to impose this
type of condition, and
stated:
“
that
a direction or condition like this impermissibly and irregularly
interferes with the duty of the subsequent court to exercise
its
sentencing discretion in a judicial manner”.
[53]
6.9
I agree with that view, despite what Caney J stated in
S
v Strydom
.
Should the original sentencing court be allowed to make such an
order, at the time of imposing the suspended sentence, it
would
certainly fetter the sentencing discretion of the court that needs to
consider the cumulative effect of the multiple sentences,
whether
that be the ‘trial court’ which sentences the accused for
breaching the suspensive condition, or the court
which now, some time
after the suspended sentence was imposed, needs to put it into
operation after conducting a full judicial
enquiry into the current
circumstances of the accused. It may be the same court which
originally imposed the suspended sentence
or it may be another court
of equal or higher jurisdiction. That court needs to keep in
mind the cumulative effect of the
multiple sentences involved and to
have the discretion to prevent the cumulative effect.
6.10
The enforcement hearing may occur up to five years down the line,
when circumstances have changed since the suspended
sentence was
imposed, as
in
casu,
and
when it would be essential for the enforcing court to have the
discretion to order concurrency if the cumulative effect proves
to be
disproportionate to the crime and the ‘trial court’ has
not exercised its discretion in terms of s 280(2) to
order
concurrency.
6.11
I agree with the magistrate in the present case that S 297(9)
triggers the circumstances described in s 280 (1) and that
the
provisions of s 297 provides the enforcing court with the same
jurisdiction as the s 280 (1) court to impose a competent punishment
in the appropriate circumstances. I am of the view that
“
the
court”
in s 280 (2) therefore refers not only to the ‘
trial
court’
which
imposes the triggering sentence, but also to the court which
subsequently puts the suspended sentence into operation if the
trial
court failed to apply s 280(2). This view is reinforced by the
principles set out below.
[7]
PRINCIPLES
APPLICABLE TO SECTION 297 PROCEEDINGS:
7.1
The magistrate submitted that the principles which a trial court
needs to apply after conviction to impose
sentence are similar to
those to be applied during the s 297-proceedings.
[54]
I agree.
7.2
The hearing during an application for the enforcement of the
suspended sentence has to be conducted in a manner
similar to that of
a criminal trial and is considered to be a full judicial process.
[55]
7.3
As stated in
S
v PESKIN
[56]
the
court hearing the application for putting the suspended sentence into
operation has a discretion and is not bound upon a breach
of the
conditions of suspension, to grant the application. But, such
an application necessitates a full enquiry into and
consideration of
the relevant circumstances.
7.4
One relevant factor is the reasonableness of the suspended sentence.
Another is the circumstances of
the offence committed in breach of
the conditions of suspension. Throughout, the court also needs
to keep in mind the purpose
of suspending a sentence: namely to serve
as a deterrent to discourage the accused from repeating the same
criminal behaviour,
while at the same time giving him an opportunity
to rehabilitate himself. It seems to be the rule rather than
the exception,
however, that a suspended sentence will be put into
operation at some stage.
[57]
The sentence as well as the condition of suspension must therefore be
reasonable.
7.5
The reasonableness of the condition of suspension must be therefore
be assessed by the enforcing court, especially
in the light of events
since its imposition. Should it appear that additional punishment
would no longer serve rehabilitative or
deterrent purpose, or that
the original condition of suspension was unreasonable, the sentence
should generally not be put into
operation.
[58]
7.6
But where the circumstances justify the enforcement of the suspended
sentence, as
in
casu,
the
court must be able to put it into operation without having to fear
that the cumulative effect will be excessive or even disproportionate
to the crime because the second or even third court did not take the
relevant circumstances into account and failed to order concurrency
where the cumulative effect justifies such order.
7.7
Even though it might normally primarily be the trial court’s
responsibility to prevent such result by
ordering concurrency of its
newly imposed sentence with the suspended sentence, there is no
guarantee that such court will
indeed take the cumulative effect into
consideration or will even be able to do so, as is evident from the
numerous cases in which
the ‘triggering sentence’ was
imposed by the trial court without knowledge of the suspended
sentence or long before
the application for putting into operation
the suspended sentence was even brought.
7.8
The overly rigid approach to the competency to order concurrency
would indeed in the present case result in
an injustice to the
accused. It is evident that provision needs to be made for the
297(9)(a)(ii) court which puts into operation
a suspended sentence
where a second court had already put into operation the triggering
sentence without considering or ordering
concurrency, to be allowed
to make such an order. This is where the principle
that each case must be judged on
its own facts and circumstances is
clearly illustrated.
7.9
The discretion of the Court during the s 297 process has added
directives in any case.
[59]
Before a suspended sentence is put into operation, the
person concerned ‘
must
be afforded the opportunity to address the court and to lead
evidence’
[60]
.
That person must also be aware of the possibility of further
suspension and his rights in that regard and the court itself must
always consider that possibility.
7.10
It is the duty of the court hearing an application for the putting
into operation of a suspended sentence to consider,
inter
alia,
the
accused’s record of imprisonment (including any sentence
currently being served) and to weigh the effect on the
accused of the
potential enforcement of the suspended sentence.
7.11
The implementation of a suspended sentence therefore requires even
more careful consideration than the original imposition
of a sentence
directly after conviction. It may also be more onerous.
7.12
One should keep in mind, throughout, that it is highly unlikely that
the purpose of s 280 could ever have been to curtail
the jurisdiction
of courts acting in terms of provisions such as s 275 or s 297 to
apply s 280. It was obviously introduced
to regulate the
imposition of several punishments (s 280(1)) and to address the
cumulative effect during punishment (s 280(2)).
7.13
The words “
trial
court”
should
therefore always be read in context and be considered in perspective,
that is in the context of the constitutional requirements
for
sentencing, in view, especially, of the accused’s right to a
fair trial.
7.14
Selikowitz J in
S v Hoffman
went as far as to state
that:
“
When
a court considers whether or not to put a suspended sentence into
operation, it is required to exercise a judicial discretion.
The accused has to be apprised of his right to lead evidence and to
advance argument to the court with a view to resisting the
putting
into operation of the suspended sentence or to advance reasons for a
further suspension of the sentence …
In
the exercising of its discretion the court is engaged in a sentencing
process and must consider and apply all the necessary principles
which it would apply if it was imposing an original sentence.
”
[61]
[my emphasis]
7.15
Terblanche made it clear, furthermore, that:
“
Reducing
the cumulative effect is
part
of the sentencing decision as a whole
,
which
is determined by the sentence discretion, based on all circumstances
of the case
.
The mere fact that there is more than one offence does not mean that
the court has to impose lesser sentences. The sentencing
officer
should consider all the circumstances, look at the totality of the
criminal behaviour and determine how the cumulative
effect should be
prevented.” [my emphasis]
7.16
All of the above form part of the s 297 court’s duties when it
considers the putting into operation of the suspended
sentence.
These duties are equally applicable when a ‘trial court’
imposes sentence after conviction of an offence
that breached the
suspensive conditions. In fact, the
conviction
by the trial court is the
sine
qua non
not
only
for
the trial court’s own sentence
,
but
also for the s 297 court’s putting into operation of the
suspended sentence
.
7.17
In that sense, then, the s 297(9) court’s ‘sentence’
or punishment (the putting into operation of the
suspended sentence)
can in my view also be widely interpreted to be a ‘sentence
following upon conviction’.
7.18
The practical consequences of the ‘sentencing’ action
performed by both courts based on that same conviction,
are
identical: imprisonment and the creation of multiple
sentences. In both instances, therefore, whichever court is
the last one to apply its sentencing discretion, needs to keep
the ‘cumulative effect’ or ‘totality principle’
in mind, for unless concurrency is ordered, the formerly suspended
sentence will be tagged onto the end of the triggering sentence
and
may result in disproportionate punishment. For that
reason, it is, in my view vital that “
the
court”
in
s 280 needs to include an enforcing court (s 297) and a substituting
court (s 275).
[8]
CONSTITUTIONAL
SENTENCING REQUIREMENTS
8.1
The paramount constitutional objective is the protection of the
accused’s right to a fair trial.
Whether it be during
sentencing after a trial, or during punishment for breaching the
suspensive conditions, the accused needs
to be protected against the
cumulative effect of the enforcement of the suspended sentence.
That means that he should
have the same right to the judicial
exercising of the relevant court’s discretion to ensure a fair
trial, regardless of whether
he is being imprisoned after conviction
by the trial court or whether he is being imprisoned as a result of
the putting into operation
of his previously suspended sentence by
the enforcing court.
8.2
In
S
v MADIKANE
[62]
the
court aptly stated
that
‘the value of human dignity lies at the heart of the
requirement that a sentence must be proportionate to the offence’.
It
has been said that: “
there
is no principle which could justify, for the sake of deterrence, a
sentence clearly in excess of what all the relevant circumstances
require in respect of the individual offender.”
(See:
S
v Collett
[63]
and
S
v Maseko
[64]
).
8.3
As Mullins J held in
S
v LABUSCHAGNE,
[65]
the
sentence passed for a particular offence ‘
consists
of both the unsuspended and the suspended portions thereof, and such
total sentence must not only be a competent sentence,
but must be
appropriate for the offence for which the offender is being
punished’.
8.4
And, as the court in
S
v ROOI
[66]
said
:
‘the fact remains that the sentence may at a later stage be
carried into effect, and it must therefore be appropriate,
having
regard to all the circumstances of the case, regardless of the fact
that it is suspended.”
8.5
In my view, where a suspended sentence is to be put into operation,
there
are potentially at least two courts the curtailment of whose
discretion to order concurrency and prevent the cumulative effect may
be at stake: that of the trial court imposing the triggering
conviction and the resulting sentence, or, if that court did not
exercise its discretion while imposing the said sentence, that of the
subsequent enforcing court.
8.6
In order to meet the accused’s right to a fair trial, the
enforcing
court’s discretion to order concurrency needs to be
available at the point in time when all the current circumstances and
the extent of all the sentences are known. It is indeed
so that the core purpose of s 280 is to protect human dignity
by
applying the “
totality
principle
”
referred to above. Disregard of this principle may lead to
inhumane and unfair sentences which could never have been
the
intention of the Legislature to cause by denying
any
sentencing court
,
whether it be the trial court, the enforcing court or the
substituting court, the jurisdiction to order concurrency.
8.7
I agree with the magistrate in the present case that the s 297 court
is
as suitable as, if not more suitable than the “
trial
court”
to order concurrency in terms of s 280, and that the s 297 court is
legislatively and substantively fit to be defined as a “
trial
court
”
or a “
sentencing
court’
.
8.8
S 280 (1) specifies that if the offender is sentenced to two or more
sentences
the court may sentence him to such sentence(s) as the court
is competent to impose. In my view the enforcement of the
suspended
sentence in terms of s 297(9) creates the circumstances
described in s 280(1), namely the presence of multiple sentences,
which
therefore activates the applicable court’s jurisdiction
to apply s 280(2).
8.9
As is evident, therefore, in my view the current strict
interpretation
of ‘the court’ as only ‘the trial
court’ which imposed sentence after conviction of the
triggering offence,
is erroneous and does lead to unconstitutional
results. Each provision in the CPA has its own character and
purpose, which
is why the core purpose of s 280 needs to be
emphasised in the proposed multi-principle approach.
[9]
AN
INTEGRATED APPROACH:
9.1
In revisiting the interpretation of the law by the pre-constitutional
courts with reference to s 280, one
needs to keep in mind the
constant development of the law since the advent of the Constitution.
9.2
Constitutional norms have added an entirely new dimension to debates
about punishment. They address, in the
first instance, the question
of whether the legislative framework of the sentencing system is
constitutionally valid.
9.3
In case like
S
v Dzukuda & Others; S v Tsilo,
for
instance, the Constitutional Court stressed the constitutional
importance of the right to a fair trial. The court
held
that, ‘
the
right to a fair trial is, amongst other things, “
a
procedure which does not prevent any factor which is relevant to the
sentencing process
and
which could have a mitigating effect on the punishment to be imposed,
from being considered by the sentencing court.
”’
9.4
Modern sentencing policy consequently reflects a combination of
several or all of the aims of retribution,
deterrence, reformation or
integrative theories.
[67]
In
S
v RO
[68]
,
for instance, Heher JA stated that ‘
Sentencing
is about achieving the right balance … or …
proportionality’
.
All the provisions of Chapter 28 of the CPA should therefore be
considered in context since they all endeavour to create the
‘perfect’ sentence.
9.5
The court in
S
v WILLIAMS
,
[69]
furthermore, indicated a shift in emphasis from retribution to
rehabilitation and, as held in
S
v MASWANGANYI,
[70]
in the case of a youthful … offender, as
in
casu,
the
prospects of rehabilitation is a major consideration.
That is where an order for the concurrent running of multiple
sentences caused by the application of s 297 has a vital role to
play.
9.6
The CPA has over the years been supplemented via case law with, for
example the triad of Zinn and the Principles
of Sentencing:
Punishment, Prevention, Rehabilitation and Retribution. The
Constitution has obviously contributed to the
variety of
directives. So has the
Child
Justice Act, Act 75 of 2008,
which
was enacted on 1 April 2010 and which changed the dynamics for
sentencing of juvenile and young offenders which is very relevant
in
this case.
[71]
9.7
I therefore agree with the magistrate in the present case that
sentencing cannot and should not happen in
a vacuum. That is
why the entire Chapter 28 of the CPA is devoted to various aspects of
sentencing and why s 280 is to be
regarded as but one of the many
provisions in that chapter to deal with sentencing, and why it needs
to be interpreted in the context
of the modern objectives of
sentencing and the constitutional principles involved.
9.8
In my view the particular circumstances of the present case clearly
illustrate that s 280 cannot be interpreted
and rigidly applied to
all sentencing situations on the basis of a pre-constitutional
precedent which undeniably affects the accused’s
right to be
able to rely on a court’s unfettered discretion to order
concurrency where needed.
9.9
Courts are frequently reminded not to lose sight of the
individualised nature of sentencing which invariably
gives rise
to the
need
for a
wide
discretion in sentencing
and which discretion has to be exercised judicially. The
current narrow and restrictive interpretation and application
of the
s 280 power in s 297 cases may potentially also restrict the courts’
powers in other provisions such as s 275.
9.10
In applying s 280, therefore, all the applicable legislation in
Chapter 28 of the CPA, such as, amongst others, s 297(7),
s 297(9)
and s 275, should be taken into consideration to devise the ‘perfect
sentence’ for the particular circumstances
by making it
possible to meet the accused’s right to a fair trial and to a
proportional sentence.
9.11
Consequently, both procedural and substantive sentencing practices
need to be measured against such general constitutional
standards as
legality, equality, proportionality and the protection of human
dignity.”
[72]
9.12
I agree with the magistrate
in
casu’s
submission
that the interpretation of the law in the cases following upon
S
v Strydom
resulted
in findings which do not comply with general constitutional standards
of legality, equality, proportionality and the protection
of human
dignity. The consequences of the rigid, narrow interpretation
of the law and the too literal application of the
precedent in my
view negate the accused’s right to an unfettered discretion of
the enforcing court to impose a proportional
punishment suited to the
current circumstances of that particular case.
9.13
S 297 undoubtedly grants the enforcing court the jurisdiction of a s
280 ‘trial court’ to adjudicate the
consequences of
non-compliance with the suspensive condition. The courts’
failure to have regard to other applicable legislation
and important
principles of law which regulate the issue, resulted in their not
paying any regard to the provisions in s 297 which,
in my view, allow
an enforcing court to function as a sentencing court with the same
jurisdiction as a trial court.
9.14
Even in later cases like
S
v Brand,
the
rationale for the literal interpretation and rigid application of the
pre-constitutional interpretation of s 280 was neither
revisited, nor
discussed. The real purpose of s 280, read with the fair trial
principle, should have led to a constitutional
interpretation of the
provision. But, because of a lack of regard for the principles
of equality and proportionality, disproportional
and inappropriate
sentences could and did result from the total prohibition of an order
of concurrency by the enforcing court.
9.15
In my view the Legislation should be extended to make express
provision for the jurisdiction of s 297 and s 275 courts
to apply s
280(2) in appropriate circumstances. That would prevent the
present confusion and unconstitutional results caused
by the
pre-constitutional interpretation of s 280.
[10]
THE
CONCURRENCY ORDER
in
casu:
10.1
The court in
S
v MASETI
[73]
held
that, in considering whether to apply the conditions of the suspended
sentence or not,
“
the court is
called upon to exercise its discretion in a judicial manner, after
hearing argument and considering all the aspects
of the case as they
affect the accused and as they affect the community. It follows
that whether or not to put a suspended
sentence into operation and
conditions attendant thereon are matters of discretion which must be
exercised judicially. If,
therefore, a court would be bound by
the order of the sentencing court that imposed the conditions upon
which the suspended sentence
should operate, it would amount to
defeating the purpose of having a discretion.”
10.2
I am satisfied that the court which put the suspended sentence into
operation in the present case, two years after the
imposition of the
triggering sentence, exercised her discretion judicially. In
her reasons, she examined all the factors
to be considered during a s
297(9)(a)(ii) application. She found that in this case
the 2-year delay between the imposition
of the five-year second
sentence which triggered the need to consider enforcement and the
State’s application to do so, prejudiced
the accused.
By the time the application to put the suspended sentence into
operation was brought, he had already spent
two-and-a half years in
jail. He has since been released on parole.
10.3
The magistrate considered it necessary to put the sentence into
operation rather than to order further suspension or
to make no
order. The accused started his “criminal career” at
the age of 14 already. Her purpose, as explained,
was to show
the accused that a breach of his conditions is and will indeed be met
with dire consequences. After all, as stated
in
S
v NKAMBULE
[74]
and
S
v MAKWANYANE & ANOTHER
[75]
the
certainty of punishment rather than the extent thereof is probably
the better deterrent.
10.4
But because the court also found that since his imprisonment in 2012,
the accused had “grown into an adult that
regrets the errors of
his youth and has paid for it,” she considered it just and
justifiable to order his sentence to run
concurrently with the one
imposed by the trial court two years earlier. More so
because by that time the accused “had
made a definite effort to
improve himself”, “had proved that he has undergone
rehabilitation,” was on the brink
of being released on parole,
and knew that he would be monitored for the remainder of his
sentence. She therefore
considered further
suspension to be unfair in the prevailing circumstances of the case
and a decision to make no order, to be counter-productive.
10.5
The magistrate argued that imprisonment after conviction and
imprisonment after a suspended sentence was put into operation
yielded the same grave result: direct incarceration. She
emphasised that a person being sentenced under a suspended sentence
must in all aspects of the law be treated equally to a person
sentenced after conviction. I fully agree that in order
for his right to a fair trial to be realised, to deprive an accused
of the right to have access to an order for concurrency of
sentences
just because the Legislature did not expressly provide for such an
option in the relevant sections of the CPA (s 280
and s 297) or
because the wording is pre-constitutional and open to different
interpretations, is unacceptable.
10.6
I find Van den Heever JA’s remark in
S
v D
[76]
that
“
[D]ecided
cases on sentence provide guidelines not straightjackets”
particularly
apposite in the circumstances of the present case and the present
application of the view propagated by Caney in
S
v Strydom
even though in
S
v D
it
referred to the length of sentences imposed for particular crimes.
10.7
As stated in Du Toit
[77]
“
Relevant
precedents can provide a fair measure of predictability and can
promote equality and enhance general consistency and uniformity,
but
can never displace the fundamental principle that there must be
individualisation in the sentencing process which –
though subject to precedents embodying legal principles –
remains a matter inevitably dominated by the peculiar facts of
each
case and the duty of the court to exercise its discretion in such a
manner that the constitutional fair trial right, which
also covers
the sentencing process, remains intact … it is guided by broad
foundational principles and demands a balancing
exercise of all
relevant facts, factors and considerations.”
10.8
But in the interpretation and application of s 280 in s 297 cases,
the courts should not loose sight of Patel J’s remark
in
S
v MAAKE
[78]
that:
“
What is
required in sentencing an offender is an informed and balanced
approach to determine a just and fair sentence.”
[11]
CONCLUSION
11.1
I am of the view, therefore, that the putting into operation of a
suspended sentence can be regarded as a procedure which
follows on
conviction as demanded in s 280(1) because s 297 grants the enforcing
court such jurisdiction.
11.2
Consequently, in my view, a s 297(9)(a)(ii), or for that matter, a s
275 court which imposes sentence in the absence
of the relevant
court, is empowered to order than an earlier suspended sentence
which it brings into operation is to run
concurrently with a new or
any other sentence because its implementation complies both
procedurally and substantively with general
constitutional standards
such as legality, equality, proportionality and the protection of
human dignity.
11.3
The six-year sentence which would follow if the suspended sentence is
not ordered to run concurrently with the five year
terms already
being served, would be shockingly inappropriate in the circumstances
of this case. The accused was, after all,
in both instances
prevented from stealing anything. He was only 18 years old when
the suspended sentence was imposed in 2010.
His
incarceration has already borne fruit and has led to rehabilitation.
11.3
I therefore agree with the magistrate that the proceedings were in
accordance with justice and that the application of the
rigid,
literal interpretation of the law would have led to unfair,
unconstitutional and unjust consequences and a disproportionate
sentence. Had the constraint on the discretion of the s 297(9)
court to order concurrency in the circumstances of this case
been
blindly and rigidly enforced, the accused would not have had a ‘fair
trial’ as far as the putting into operation
of the suspended
sentences was concerned.
WHEREFORE
THE FOLLOWING ORDER IS MADE:
1.
The
order in terms of s 297(9)(a)(ii) of the Criminal Procedure Act, Act
51 of 1977, to put the suspended sentence into operation
is
confirmed.
2.
The
order in terms of s 280(2) of the Criminal Procedure Act, Act 51 of
1977, that the sentence of one year’s imprisonment
imposed in
case 19/860/10 (Dated 14 May 2010) shall run concurrently with the
sentence imposed in case 17/933/11 (Dated 14 March
2012) is
confirmed.
_________________________
H
MURRAY, AJ
I
concur.
__________________
C VAN
ZYL, J.
[1]
Unless otherwise indicated, all provisions
referred to herein are sections of the Criminal Procedure Act,
Act 51 of 1997.
[2]
Section 297(9) determines as follows:
(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 –
(ii)
was imposed under subsection (1)(b), as
in
casu,
or subsection (4) or (5)
be
brought
before the court which
suspended the operation of the sentence
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 …sub-paragraph (ii),
put
into operation the sentence which was suspended
.
[3]
Section 280(2) determines as follows:
“
Such
punishments, when consisting of imprisonment, shall commence the one
after the expiration, setting aside or remission of
the other, in
such order as the court may direct, unless the court directs that
such sentences of imprisonment shall run concurrently”.
[4]
1979(2) SA 839 (O).
[5]
1981 (3) SA 645 (C).
[6]
1982(4) SA 49 NCD.
[7]
1986(4) SA 972 (N).
[8]
1988 (1) SACR 203
(OPD).
[9]
1988 (4) SA 486 (T).
[10]
1992(2) SACR 56 (C).
[11]
Unreported case no. 343/2010, Free State High
Court: Judgment on 29 July 2010.
[12]
2013: The Guide to Sentencing in South
Africa, Chapter 7 at para 2.2.1
[13]
1985 (4) SA 322
(ZHC) at 324 G.
[14]
1967(2) SA 386 (N)
[15]
The Criminal Procedure Act 56 of 1955..
[16]
Supra,
at 387 C
– F.
[17]
Supra,
at 387 C
– F.
[18]
1979(2) SA 839 (OPD)at 842 C – D.
[19]
Supra,
at 842 A
– B.Yet
[20]
Supra,
at [6]
[21]
Supra,
at
841B – C.
[22]
Du Toit
et al:
Commentary on the Criminal Procedure
Act
[23]
Hiemstra’s Criminal Procedure
[24]
S v Jeffries 2011(2) SACR 580 (FB) at [8].
[25]
Supra,
at 841A -
B.
[26]
Supra,
at 842 E
- F
[27]
1992(22) SACR 56 © at 58e-f
[28]
1986(4) SA 972 (NPD) at 973H - J
[29]
See also S v Osborne, 1981(3) SA 645 (KPA)
[30]
1984 (1) SA 511
(O) at 515H
[31]
At 502
[32]
State v Johnson, s
upra,
at 650D – E.
[33]
1992(2) SACR 56 (C)
[34]
Supra,
at
650
[35]
1982(4) SA 49 (NC) at 51B – C, in agreement
with
S v Strydom
,
S v Johnson
&
S v Osborne
.
[36]
1998 (1) SACR 203
(OPD) at
[37]
2003 (1) SACR 220
(T) at 222i. See also the
CPA, s 297 (7), (8) and (9).
[38]
1986(4) SA 972 (NPD)
[39]
Supra,
at 973 A
– B.
[40]
198(1) SA 511 (O) at 515H
[41]
S v Mawatla
[42]
Du Toit
et al
,
Commentary on the Criminal Procedure Act, at 28-20E. Hiemstra:
Criminal Procedure, 2013 at 28-38 to 28-42.
[43]
Supra,
at
[18]
[44]
With reference
to
S
v Chabalala, S v Mothibi,
&
S
v Breytenbach
[45]
Supra,
at
[14]
[46]
2015(1) SACR 310 (GJ) at [20] and [29] –
[31] at 317i – 318e.
[47]
1988(4) SA 286 (TPD)
[48]
1995 (1) SACR 33
(A) at 37a-d
[49]
1991 (2) SACR 246
(A) at 248j.
[50]
1992(2) SACR 56 (C)
[51]
Du Toit,
supra,
at
28-51
[52]
2014(2) SACR 621 (ECG)
[53]
Supra, at [5] at 622f-i and [6]
[54]
Hiemstra 2013: Criminal Procedure, at 28-86
to 28-89.
[55]
Terblanche 2013: The Guide to Sentencing in
South Africa, Chapter 14 at para 2.9.4.
[56]
1997 (2) SACR 460
(C)
[57]
Hiemstra 2013: Criminal Procedure 28088
[58]
S v Hendricks,
1991 (2) SACR 341
(C); Du
Toit,
supra,
at
28-52.
[59]
Hiemstra 2013: Criminal Procedure, at
28-88.
[60]
Du Toit, at 399.
[61]
Supra,
at 63a-d
[62]
2011 (2) SACR 11 (ECG)
[63]
1990 (1) SACR 465 (A)
[64]
1982 (1) SA 99 (A).
[65]
1990(1) SACR 313 € at 315F
[66]
2007(1) SACR 668 (C) at 671b-c
[67]
Du Toit, Criminal Procedure,
supra,
at 28-10.
[68]
2010 (2) SACR 248
(SCA) at [30]
[69]
1995 (2) SACR 251 (CC)
[70]
2014 (1) SACR 622
(GP) at [28]
[71]
The accused started his life of crime at the age
of about 14 years old. He is currently 24 years old and has
been incarcerated
since 2012.
[72]
Woolman
et al
2013,
Constitutional Law of South Africa, Second Edition: 49-3.
[73]
2014(2) SACR 621 (ECG)
[74]
1993(1) SACR 136 (A)
[75]
1995(2) SACR 1(CC)
[76]
1995(1) SACR 259 (A) at 260e
[77]
2015, at 28-10B-12
[78]
2007(1) SACR 403 (T) at [7]