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[2014] ZAFSHC 77
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Dexter v S (P223/2013) [2014] ZAFSHC 77 (12 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number : P223/2013
In
the application between:-
DEXTER
EDGAR CHRISTOPHER
…..................................................................................
Applicant
and
THE
STATE
…......................................................................................................................
Respondent
CORAM:
EBRAHIM, J
et
VAN
ZYL, J
HEARD
ON:
24 FEBRUARY 2014
JUDGMENT
BY:
VAN ZYL, J
DELIVERED
ON:
12 JUNE 2014
[1]
The applicant was charged in the Regional Court, Bloemfontein, with
the following main charges:
Charges
1- 8: Fraud, read with the provisions of Act 105 of 1997.
Charges
9 – 16: Money Laundering.
Charge
17: Fraud.
Charges
18 – 25: Forgery.
[2]
The applicant pleaded guilty to the aforesaid charges and on 29
November 2012 he was sentenced as follows:
Charges
1 – 4: Three (3) years imprisonment on each charge.
Charges
5, 6 and 7: Four (4) years imprisonment on each charge.
Charge
8 (with a prescribed minimum sentence of 15 years applicable): Eight
(8) years imprisonment.
Charges
9 – 16 (taken together):
Six
(6) years imprisonment.
Charge
17: Three (3) years imprisonment.
Charges
18 – 25 (taken together):
Four
(4) years imprisonment.
It
was further ordered that that the aforesaid sentences are to be
served concurrently with the sentence on charge 8 with the result
that the applicant was sentenced to an effective sentence of eight
(8) years imprisonment.
[3]
The applicant applied for leave to appeal against the imposed
sentences from the trial court on 13 December 2012, which application
was dismissed.
[4]
On 10 October 2013 the applicant filed a petition with this Court for
leave to appeal against the imposed sentences, which petition
was
dismissed by Molemela, J and Pohl, AJ on 25 October 2013.
[5]
The applicant is now applying for:
(a)
Leave to appeal against the refusal of the
aforesaid petition for leave to appeal against the imposed
sentences;
(b)
Leave to adduce new/further evidence on
the issue of sentence;
(c)
Leave to appeal against the convictions on
charges 9 to 16; and
(d)
Leave to adduce new/further evidence on
the issue of the applicant`s plea of guilty on charges 9 to 16 and
hence, his convictions
on the said charges.
[6]
Because Molemela, J and Pohl, AJ (as he then was) were not available
to hear this application, we were instructed by Erasmus,
AJP (as he
then was) to preside over the matter.
[7]
I consider it apposite to deal with the respective applications
separately.
APPLICATION
FOR LEAVE TO APPEAL AGAINST THE CONVICTIONS ON CHARGES 9 TO 16:
[8]
As stated earlier in this judgment, the applicant only applied for
leave to appeal against the imposed sentences from the trial
court.
No application for leave to appeal against any of the convictions has
served before the trial court.
[9]
In terms of section 309(1) of the Criminal Procedure Act, 51 of 1977
(“the Act”), any person convicted of an offence
by any
lower court, may appeal against such conviction and against any
resultant sentence or order to the High Court having jurisdiction,
subject to leave to appeal being granted
in terms of section 309B or 309C
.
Section
309B1(a) determines as follows:
“
Subject
to
section 84
of the
Child Justice Act, 2008
, any accused, who wishes
to note an appeal against any conviction or against resultant
sentence or order of a lower court, must
apply to
that
court
for leave to appeal against that
conviction, sentence or order.” (own emphasis)
[10]
No appeal is therefore permissible without having first requested
such leave from the trial court. Had such leave been
applied
for from the trial court and the trial court refused the requested
leave, then the applicant could have followed the further
remedies
like he did with regard to his unsuccessful application to the trial
court for leave to appeal against his sentences.
[11] We consequently
do not have the jurisdiction to entertain this application.
APPLICATION
FOR LEAVE TO ADDUCE FURTHER EVIDENCE ON THE CONVICTIONS ON
CHARGES 9 TO 16:
[12]
Section 309B(5)(a)
determines as follows:
“
An
application for leave to appeal may be accompanied by an application
to adduce further evidence…relating to the conviction,
sentence or order in respect of which the appeal is sought to be
noted.”
[13]
In addition to the aforesaid, Magistrates’ Courts
Rule 67
provides as follows regarding an application for leave to present
further evidence:
“
(1)(b)
An appellant… who wishes to apply for leave to adduce further
evidence as contemplated in
section 309B(5)(a)
of that Act, shall do
so in writing to the clerk of the court and shall also send a copy of
the application to the Director of
Public Prosecutions concerned or,
in a case in which the prosecution was not at the public instance, to
the prosecutor concerned.”
[14]
From the aforesaid it is evident that an application for leave to
present further evidence should be made to the trial court
at the
stage when the relevant application for leave to appeal is made. Only
once that has been unsuccessful, can the High Court
be approached for
further remedies in terms of section 309C(2)(a)(ii) etc.
[15]
Because an application for leave to appeal against part of the
convictions of the applicant has not yet served before the trial
court, the application to present further evidence on part of the
convictions of the applicant, can and should be heard by the
trial
court during the hearing of the application for leave to appeal
against part of the convictions. This is the position
despite
the fact that the application for leave to appeal against the
sentences has already served before and refused by the trial
court.
In this regard the following was stated in Commentary on the
Criminal
Procedure Act, Du
Toit
et al
,
at p. 31-19 (which discussion deals with section 316 of the Act, but
which principle is
mutatis mutandis
applicable to section 309B):
“
Before
a trial court may hear an application to lead further evidence, a
valid application for leave to appeal must simultaneously
be brought
before court. Where an accused first applied for leave to
appeal against the sentence, but his application was
dismissed both
by the trial court and by the Supreme Court of Appeal, he may
nonetheless apply to the court
a quo
for leave to appeal against the conviction and to lead further
evidence in regard thereto (
S v Ebrahim
1972 (2) SA 61
(C) at 64G – 65A).
[16]
In the circumstances we also do not have the jurisdiction to hear
this application.
APPLICATION
FOR LEAVE TO ADDUCE FURTHER EVIDENCE ON SENTENCE
[17]
Because the application for leave to appeal against the sentences has
already been disposed of by the trial court, the application
to
present further evidence on sentence cannot be considered by the
trial court anymore. In this regard the following is
stated in
Commentary on the
Criminal Procedure Act,
supra
,
at p. 31-20:
“
It
has been pointed out many times that an application to lead further
evidence may only be made to a trial court in terms of
s 316(5)
where
it is accompanied by an application for leave to appeal. But as
soon as the application for leave to appeal is disposed
of by the
trial court, an application to that court in terms of
s 316
to lead
further evidence will be late and not considered.”
[18]
The same principle is also stated in Hiemstra’s Criminal
Procedure, A Kruger, at p. 31-18 (1) (which again deals with
section
316
, but which principles are also applicable to
section 309B):
“
Once
a court has disposed of an application for leave to appeal, whether
by refusal or approval, that application cannot be brought
again to
that court, even if the application is on the second occasion
accompanied by an application to present further evidence.
The
court is
functus officio
.
Furthermore, the wording of subsection (5) only allows an application
to lead further evidence in combination with an application
for leave
to appeal.”
[19]
However, a court of appeal can also hear further evidence or remit
the matter to the court
a quo
with directions regarding the hearing of further evidence. In
this regard the following is stated in Hiemstra’s Criminal
Procedure,
supra
,
at p. 30-46:
“
There
are two sources from which this power can be derived. One is
section 304(2)(b)
, which is made applicable to appeals by
section
309(3).
In terms of
section 304(2)(b)
the court of appeal can
itself hear evidence and, in terms of subsection (2)(c)(5), the case
can be remitted to the magistrate
with the direction to hear further
evidence. The other source of the power is section 22(a) of the
Supreme Court Act 59 of
1959 which gives the power to both the
Supreme Court of Appeal and the provincial or local division (if it
has appeal jurisdiction)
to hear evidence itself or to remit the
matter to the court of first instance for that purpose (
S
v Ross
2013 (1) SACR 77
(WCC) par
[13]).”
[20]
When the aforesaid sections of the Act are read in context, it is
evident that these sections apply when the High Court hears
an appeal
pertaining to a matter which emanated from a lower court as having
been the trial court. It is not applicable when
the High Court
only deals with an application for leave to appeal (in an instance
where the lower court was the trial court) –
in such
circumstances the High Court is not a court of appeal. This is
confirmed by section 22 of the Supreme Court Act,
59 of 1959 (which
has been repealed with effect from 23 August 2013, but which Act is
still applicable in this instance), which
section determines as
follows:
“
22
POWERS OF COURT ON HEARING OF APPEALS
The
appellate division or a provincial division, or a local division
having appeal jurisdiction, shall have power –
(a)
on the hearing of an appeal to receive
further evidence, either orally or by deposition before a person
appointed by such division,
or to remit the case to the court of
first instance, or the court which judgment is the subject of the
appeal, for further hearing,
with such instructions as regards the
taking of further evidence or otherwise as to the division concerned
seems necessary; and
(b)
to confirm, amend or set aside the judgment
or order which is the subject of the appeal and to give any judgment
or make any order
which the circumstances may require.”
In
Erasmus Superior Court Practice, Farlam
et
al
, the following is stated on p.
A1-55:
“
The
words ‘on the hearing of an appeal’ connote that the
court must be seized of the appeal before it can order that
further
evidence be adduced.”
[21]
We are currently dealing with an application for leave to appeal
against the refusal of the petition. It does not constitute
the hearing of an appeal as such. We, therefore, in my view,
do not have the jurisdiction to hear this application either.
APPLICATION
FOR LEAVE TO APPEAL AGAINST THE REFUSAL OF THE PETITION FOR LEAVE TO
APPEAL AGAINST THE SENTENCE:
[22]
If this application is to be granted, the issue before the Supreme
Court of Appeal will be whether leave to appeal should have
been
granted to the High Court. The Supreme Court of Appeal will not
at that stage be called upon to consider the appeal
as such.
The test that will be applied by the SCA is whether there are
reasonable prospects of success in the envisaged appeal
and if so, it
will refer the matter back to the High Court to be heard by two
judges as appeals emanating from lower courts are
dealt with. See
S
v Kriel
2012 (1) SACR 1
(SCA) pars
[1], [11], [12] and [16].
[23]
If this application for leave is to be refused, the applicant can
direct a petition to the President of the Supreme Court of
Appeal.
See
S v Khoasasa
2003 (1) SACR 123
(SCA) pars [19] – [22]. In considering
the current application, we therefore have to consider whether there
are reasonable
prospects that the Supreme Court of Appeal will find
that the petition to the High Court should have been granted.
Considering
the procedural aspects alluded to in the previous
paragraph, it consequently means that we should decide whether there
are reasonable
prospects that the Supreme Court of Appeal will find
that there are reasonable prospects of success in the envisaged
appeal.
In deciding this question, the approach of the Supreme
Court of Appeal will be, and hence our approach should be, the
following
as set out in the unreported judgment of
Molema
v S
(555/10)
[2011] ZASCA 62
(1
April 2011):
“
[7]
With that prelude I turn now to consider whether leave to appeal
to
the high court against conviction and sentence should have been
granted. The test in an application such as the one under
consideration
in this appeal is whether there is a reasonable
prospect of success in the envisaged appeal.
[8]
In deciding on the fate of this appeal we are thus enjoined
by
judicial authority to reflect dispassionately upon the judgments
sought to be appealed against, and reach a conclusion as to
whether
or not there is a reasonable prospect that the appellate court may
come to a different conclusion to that reached by the
trial court.”
[24]
The applicant, who appeared in person, submitted comprehensive and
detailed heads of argument, the contents of which he repeated
in his
oral submissions during the hearing of this matter. The grounds
he relies on for his submission that there are reasonable
prospects
of success in the envisaged appeal against the sentences, is more
particularly set out in pars 10 – 34 of his heads
of argument.
He submitted that correctional supervision was an appropriate
sentence and that this aspect, together with the
principles of
restorative justice, was not properly considered by the trial court.
He referred to certain alleged misdirections
by the trial court in
concluding that imprisonment was the only appropriate sentence
option.
[25]
Me Van Wyk, on behalf of the state, emphasized the fact that a
prescribed minimum sentence of 15 years is applicable
to charge 8 and
that the trial court has already found in favour of the appellant
that substantial and compelling circumstances
exist which obligated
her to impose a lesser sentence. Me Van Wyk submitted that this
finding is indicative of the fact that
the trial court properly
considered all the mitigating factors in favour of the applicant.
[26]
I have meticulously studied the judgment of the trial court and in my
view the trial court’s approach in determining
an appropriate
sentence, was exemplary. She properly and in a balanced manner
dealt with all the relevant mitigating and
aggravating factors in her
judgment.
[27]
I am furthermore unable to find that she misdirected herself in any
manner in deciding on an appropriate sentence. I
can also not
find that the sentences imposed, and more specifically the term of
effective imprisonment, are shockingly inappropriate.
In this
regard the trial court referred to other judgments dealing with
so-called white collar crimes and the current approach
of our courts
regarding the seriousness of such offences and the principles that
should be applied in the consideration of what
constitutes an
appropriate sentence for such crimes.
In
this regard and in addition to the judgments she already referred to,
I can also refer to the judgment in
Pretorius
v The State
(271/2008)
[2008] ZASCA
132
(26 November 2008). In that matter a sentence of five years
imprisonment for 91 counts of fraud was imposed. Although
there
were more charges of fraud than in the current instance, the total
amount of the fraud in that matter amounted to R122 039,00
and
were therefore much less than in the current instance. The
personal circumstances of the appellants in that matter were
very
similar to those of the applicant and the appellants also pleaded
guilty. The court expressed itself strongly in favour
of
stricter sentences for white collar crimes and quoted the judgment in
S v Sadler
2000 (1) SACR 331
(SCA) to which the trial court also referred. The
Supreme Court of Appeal found the sentence to be appropriate and
dismissed the
appeal against the sentence.
[28]
In the circumstances I cannot find that there are reasonable
prospects of success in the proposed appeal to the High Court.
This have the result that I consequently also cannot find that there
are reasonable prospects that the Supreme Court of Appeal
will find
that the petition against the sentences should have been granted.
[29]
The application for leave to appeal against the refusal of the
petition for leave to appeal against the sentences can therefore
not
be successful.
[30]
For the sake of clarity, I record that pertaining to the applications
in which I found that we do not have the jurisdiction
to hear the
applications, I consider the appropriate order to be that the said
applications be removed from the roll. This is to
ensure that it will
be evident from the Court Order as such that we have not adjudicated
upon the merits of any of the said applications.
ORDERS:
[31]
The following orders are consequently made:
1.
The application for leave to appeal
against the refusal of the petition for leave to appeal against the
imposed sentences, is
dismissed.
2.
The application for leave to adduce
new/further evidence on the issue of sentence, is removed from the
roll.
3.
The application for leave to appeal
against the convictions on charges 9 to 16, is removed from the
roll.
4.
The application for leave to adduce new/further
evidence on the issue of the applicant`s plea of guilty on charges
9 to 16 and
hence, his convictions on the said charges, is removed
from the roll.
____________
C. VAN ZYL, J
I
concur.
_____________
S.
EBRAHIM, J
On
behalf of applicant: E.C. Dexter (In person)
Goedemoed
Correctional Centre
Medium
A
ALIWAL
NORTH
On
behalf of respondent: Adv A. van Wyk
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN