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2014
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[2014] ZANCHC 29
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S v Visagie (71/2014) [2014] ZANCHC 29 (17 September 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
[NORTHERN CAPE DIVISION,
KIMBERLEY]
CASE NO: 71/2014
Date of the judgment: 17 November 2014
In
the Review of:
THE
STATE
And
PATRICK
ELRICO
VISAGIE
THE ACCUSED
Coram:
Phatshoane J et Pakati J
JUDGMENT
Phatshoane
J:
1.
This matter came before us for automatic review. The accused, a
juvenile aged 17, appeared before
a Regional Court Magistrate, Ms
Ditse, in Kimberley, on a count of robbery with aggravating
circumstances as contemplated in s
1 of the Criminal Procedure Act,
51 of 1977, (the CPA).
2.
The accused pleaded guilty. In his statement in terms of s 112(2) of
the CPA he intimated,
inter alia
, that he and a certain lady
arranged to rob the complainant. He explained that while the
complainant was in his vehicle with this
lady he approached them,
opened the vehicle’s right rear door and got inside. He
threatened the occupants with a single blade
of a sheep shear
fashioned into a weapon. He demanded money and a cellular phone from
the complainant which items were handed over
to him. He took out R340
from the complainant’s wallet, ordered him to alight the
vehicle and drove off in the complainant’s
vehicle with the
lady in question. At Shoprite Store in town he abandoned the vehicle.
He and the lady parted ways and he never
saw her again.
3.
The accused was convicted of robbery with aggravating circumstances
on the basis of his plea. His
conviction cannot be faulted.
4.
During the pre-sentencing procedures it became apparent that the
accused had a previous conviction
described in the pre-sentencing
reports as “Hijacking and kidnapping”. It also appears
from some of these reports that
on 05 February 2014 he was sentenced
to five years imprisonment for the latter offence. Little is being
offered about the nature
of this five year jail term. For example
whether any portion of the sentence was suspended and the conditions
thereof.
5.
On 19 August 2014, for the current offence, the Magistrate sentenced
the accused to five years
imprisonment in terms of
s 77
of the
Child
Justice Act, 75 of 2008
. The sentence was antedated to 11 April 2013
because he had been in detention since then. In addition it was
ordered that this
sentence run concurrently with the sentence the
accused was serving in respect of the “hijacking and
kidnapping” offence.
6.
When handing down her sentence the Magistrate made a remark that the
accused’s attorney had
mentioned that the accused had a
previous conviction. Be that as it may, she proceeded to state that
she would treat the accused
as a first offender because the
prosecution did not adduce proof of the accused’s previous
criminal record.
7.
On 15 September 2014 I directed a query to the learned Magistrate in
which I requested her: (1) to provide
the basis upon which the
previous conviction(s) of the accused were not proved; and (2) to
state reasons whether she did not consider
it her duty to call the
prosecutor to adduce proof of the accused’s previous conviction
before the commencement of the sentencing
procedures.
In her reply the
Magistrate acknowledged that it was an oversight on her part not to
request the State’s counsel to adduce
proof of the accused’s
previous convictions before the sentencing procedures.
8.
I share the views expressed by Spilg J in
S v Nhlapo
2012 (2)
SACR 358
(GSJ) at 364 paras 19 and 20:
“
[19]
Section 274(1)
of the CPA provides that 'a court may . . . receive
such evidence as it thinks fit in order to inform itself as to the
proper sentence
to be passed.'
[20]
It is trite that the imposition of a proper sentence requires a
consideration of the triad of factors, one of which is the
public
interest. Accordingly, irrespective of whether the offence is one
subject to the minimum-sentence regime under s 51 of the
Criminal Law
Amendment Act 105 of 1997 (CLAA) or not, public interest cannot be
properly considered and weighed unless a court
is apprised of whether
the offender has previous convictions, and, if so, for what.”
At para 32 the learned
judge proceeds:
“
[32]….Whatever the
prosecutor's reason for not securing a SAP69 it appears necessary,
not only where s 51 of the CLAA is
invoked
but
also to ensure generally that the interests of society are properly
taken into account, for the state to produce a SAP69 in
court and
that a presiding officer insist on its production in order to
properly discharge the sentencing functions under law
(see
further
Sethokgoe
at 545i – 546b), unless good reason exists to avoid a further
remand where the offender is to remain in custody.”
(My
emphasis)
9.
In
the exercise of the Court’s duty to ensure a fair trial, it is
necessary to balance the rights of the accused, the rights
of the
victim and society at large. See
S
v Thebus and Another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) at 367 para 109.
10. I
am unable to discern why the production of the accused’s
previous convictions was not done in this
case. The Magistrate’s
procedural approach is conflictual and confusing. In one breath the
accused’s current sentence
is to run concurrently with an
existing (previous) sentence. On the other hand the accused is
treated as a first offender. This
cannot be. In
S v Joaza
2006
(2) SACR 296
(T) at 297 Patel J lucidly puts it as follows:
“
If
persons are simply regarded as first offenders and receive lenient
sentences then the administration of our criminal justice
system will
invite societal disdain. Although it is at the discretion of the
prosecution to place the list of an offender's previous
conviction
before the court, I am of the view that it is prudent to do so in
every case, thereby ensuring that the offender is
rightly and
judiciously sentenced. Let it be said that in this age of advanced
information technology, any person's previous convictions
can easily
and swiftly be obtained from the South African Criminal Bureau data
bank. Therefore, there is no excuse why the prosecution
should omit
to furnish a recordal of previous convictions to the sentencing
court.”
11. In
the pursuit of justice, Prosecutors play a significant role in
placing information before the Court that
ought to assist it in
arriving at a just decision in a case. Equally true is that the
Presiding officers play an important part
in dispensing justice. As
was said by Curlewis JA in
R v Hepworth
1928 AD 265
at 277:
“
A criminal trial is not a game
where one side is entitled to claim the benefit of any omission or
mistake made by the other side,
and a judge's position in a criminal
trial is not merely that of an umpire to see that the rules of the
game are observed by both
sides. A judge is an administrator of
justice, he is not merely a figure head, he has not only to direct
and control the proceedings
according to recognised rules of
procedure but to see that justice is done.”
12.
Emanating from the aforegoing it is evident that the Regional
Magistrate committed a gross-irregularity in
the sentencing
procedure, which must be set aside and be revisited. Whereas the
emphasis should be on the accused’s previous
convictions, it
should be left open to the defence or the State to present whatever
evidence they deem relevant and necessary.
It is important to have
proper regard to the accused’s youthfulness and to consider his
propensity to commit serious violent
crime which ought not to be
underemphasized, if he has a previous conviction.
13. In
the result the following order is made:
Order:
1.
The
conviction is in order.
2.
The
sentence is set aside and the case is remitted to the Regional
Magistrate, Ms Ditse, to assess and impose the sentence afresh.
Phatshoane J
I concur
Pakati
J