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
>>
2013
>>
[2013] ZAFSHC 120
|
|
Smith v S (A02/2013) [2013] ZAFSHC 120; 2014 (2) SACR 190 (FB (27 June 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case number:
A02/2013
In the appeal of:
BHEKI ISAAC SMITH
....................................................................
Appellant
and
THE STATE
...............................................................................
Respondent
CORAM
:
MOLOI, J
et
SNELLENBURG, AJ
JUDGMENT:
SNELLENBURG, AJ
HEARD
: 3
JUNE 2013
DELIVERED:
27 JUNE 2013
[1] The appellant was
duly convicted on 1 June 2010 in the Kroonstad Regional Court on the
count of house breaking with the intent
to steal and theft.
[2] The appellant and one
James Delheme Khumalo broke into the business premises of Jimmy Moloi
during or about 12 - 13 June 2010,
where they unlawfully and
intentionally stole a Hi-Fi, clothes and other items to the value of
R 31 960.00.
[3] Pursuant to the
conviction and after proof of his previous convictions the regional
magistrate declared the appellant an habitual
criminal in terms of
the provisions of Section 286(1) of the Criminal Procedure Act, 51 of
1971 (“the CPA”).
[4] The appellant’s
application for leave to appeal against the conviction and sentence
was dismissed by the court
a quo
. The appellant appeals
against the said sentence with leave granted on petition.
[5] Section 286(1) of the
CPA provides:
“
(1)
Subject to the provisions of subsection (2), a Superior Court or a
Regional Court which convicts a person of one or more offences,
may,
if it satisfied that the said person habitually commits offences and
that the community should be protected against him, declare
him an
habitual criminal, in lieu of the imposition of any other punishment
for the offence or offences of which he is convicted.”
The provisions of Section
286(2) do not find application in the present matter. Section 286(3)
provides that the person declared
an habitual criminal shall be dealt
with in accordance with the laws relating to prisons.
[6] In terms of Section
65(4)(b)(iv) of the Correctional Services Act 8 of 1959, subject to
the remedial reading-in after the word
‘parole’ of the
words ‘provided that no such prisoner shall be detained for a
period exceeding fifteen years’
as declared in
S
v Niemand
2001
(2) SA CR 654
(CC), the effect of the declaration as an habitual
criminal is that such person ‘shall be detained in prison
until, after
a period of at least seven years, is placed on parole,
provided that no such prisoner shall be detained for a period
exceeding
fifteen years.’
[7] Section 286(1) has
been the subject of much debate, specifically with regards to what is
expected of the sentencing court before
a declaration can be made
that a person is an habitual criminal.
[8] This is undoubtedly
so because, whilst accepting that Section 286 serves an useful
sentencing purpose which is now [after the
Constitutional Court’s
declaration referred to above] consistent with the Constitution and
its fundamental values
1
,
it is admittedly a drastic and exceptional punishment. See
S
v Van Eck
2003
(2) SACR 563
(SCA) par 10;
S
v Masisi
1996
(1) SACR 147
(O) at 152d.
[9] The requirements for
a declaration under Section 286(1) of the CPA were succinctly
summarised by the Supreme Court of Appeal
in
S
v Van Eck
(
supra
)
par [9]-
“
The
requirements for a declaration under s 286(1) of the Act are
therefore:
(i) The Court must be
‘satisfied’ (in the sense of convinced; see
S
v Makoula
1978(4)
SA 763 (
supra
)
at 768 B – E)
2
both that the accused
habitually commits crimes and that those crimes are of such a nature
that the community should be protected
from the accused for at least
a period of seven years;
(ii) The accused must not
be under the age of eighteen years, and
(iii) A punishment is
warranted which does not exceed fifteen years imprisonment. However,
even if all these requirements are satisfied
the Court retains a
discretion whether or not to make a declaration under s 286(1); it
may in the exercise of its discretion impose
some other appropriate
sentence. The discretion is to be exercised in the light of all the
relevant circumstances and in accordance
with the ordinary principles
governing the sentencing of offenders.”
[10] Although Section 286
contains no requirement that an accused person must be warned that he
is at risk of being declared an
habitual criminal, prior to such a
declaration being made (See
S v Van Eck
(
supra
);
S v Masisi
(
supra
)) and the fact that a warning
has been given, or not, does not fetter the discretion of the court
to impose such a sentence (see
S v Magqabi
2004 (2)
SACR 551
(E)), it is notwithstanding a well settled practice not to
declare a person an habitual criminal without prior warning, save in
exceptional circumstances.
[11] This practise, which
was laid down by the Appellate Division, was thoroughly investigated
in
S v Mache
1980 (3) SA 224
(T) and
S v Erasmus
1987 (4) SA 685
(CPA). In the words of Scott JA in the
Van Eck
case (
supra
) par [9]-
“
A
court will not ordinarily make a declaration in the absence of a
prior warning to the accused of the provisions of s 286.”
[12] It has been held
consistently that the fact that the appellant was declared an
habitual criminal without prior warning that
he was running the risk
of such declaration, constitutes a factor which a court of appeal may
consider when adjudicating whether
the trial court exercised its
discretion reasonably/judicially. See
S
v Erasmus
(
supra
)
at 691C.
[13] The regional
magistrate after consideration of the appellant’s previous
convictions came to the conclusion that appellant
habitually commits
offences and that the community should be protected from him. It is
common cause that the magistrate came to
this conclusion based solely
on the appellant’s criminal record which was contained in the
SAP 69c form (criminal record).
[14] The debate regarding
Section 286(1) has been mainly concerned with what would be required
for a court to be ‘convinced’
that the jurisdictional
requirements of Section 286(1) has been met so that the sentencing
court could be said to have exercised
its discretion judicially when
making the declaration. In
S
v Nawaseb
1980
(1) SA 339
(SWA) it was held that a list of previous convictions
without an investigation into the circumstances in which the previous
crimes
were committed could never be sufficient in itself to convince
the sentencing court that a person habitually commits offences and
that the community should be protected from him.
[15] In
S
v Mache
(
supra
)
and
S
v Erasmus
(
supra
)
the aforementioned ‘investigation’ as prerequisite before
a court could be ‘convinced’ that the jurisdictional
requirements that would justify the declaration have been satisfied,
was criticised.
[16] The differing views
were considered and discussed in this division in
S
v Masisi
(
supra
).
The Court held that neither of the afore-mentioned approaches (the
Nawaseb
and
Erasmus
cases) are correct and
that the approach as set out in
S
v Shabalala en ‘n Ander
1984
(2) SA 234
(N) “waar hy ‘n ondersoek in sekere
omstandighede as ‘nie onvanpas’ beskou”, is the
preferable approach.
[17] This approach
preferred in the
Masisi
case however comprises of
nothing more than what is expected of the sentencing court when
exercising its discretion properly in
terms of Section 286. It
follows that in the exercise of its discretion with regards to the
specific facts of each case the court
needs to decide whether the
evidence presented, for instance the list of previous convictions, by
itself will be enough to justify
the court to come to the conclusion
that declaration should be made or whether it needs more information
with regards to the previous
convictions for instance. In light of
the afore-mentioned considerations a more careful enquiry and
investigation into the personal
circumstances, including the nature
and frequency of criminal conduct in the past, the kind of punishment
metered out and its apparent
effect, becomes necessary (also referred
to as a critical investigation
3
)
where a declaration was made in absence of a prior warning.
[18] Section 274(1) of
the CPA provides that
“
A
Court may, before passing sentence, receive such evidence as it
thinks fit in order to inform itself as to a proper sentence to
be
passed.”
(See also
S v
Masisi
(
supra
) at 151c).
[19] At the sentencing
stage of proceedings the court is no longer solely reliant on the
parties for the presentation of evidence.
As stated in
S v
Masisi
(
supra
) at 149h with reference to
S v
Dlamini
1991 (2) SACR 665
(A) at 666 h to 667 f-
“
Terwyl
dit nog gaan om skuldigbevinding is die Hof hoofsaaklik op die partye
aangewesig vir die voorlegging van getuienis. By die
oorweging van
vonnis tree die Hof egter sterker na vore en moet hy desnoods die
inisiatief neem.”
During the sentencing
stage, formalism takes a back seat and a more inquisitorial approach,
aimed at collating all relevant information,
is adopted. See
S
v Olivier
2010 (2) SACR 178
(SCA) par [8]. As was explained
in
S v Siebert
1998 (1) SACR 554
(SCA) at 558j –
559a-
“
Sentencing
is a judicial function
sui
generis
.
It should not be governed by considerations based on notions akin to
onus of proof. In this field of law, public interest requires
the
court to play a more active, inquisitorial role. The accused should
not be sentenced unless and until all the facts and circumstances
necessary for the responsible exercise of such discretion have been
placed before the court.”
(Also see
S v
Samuels
2011 (1) SACR 9
(SCA) par [8];
S v Pillay
2011 (2) SACR 409
(SCA) par [24].) This also entails that the court
is at liberty to investigate the situation in order to impose a
proper sentence.
Legal representation does not absolve a court from
its duty to exercise a proper judicial discretion. See
S v Zuma
2006 (2) SACR 257
(W) at 261g.
[20] In the
Masisi
case the court considered various options, each with the advantages
and disadvantages, that may be available to the court when
considering whether to make a declaration in terms of section 286.
The court concluded that this may or may not comprise of the
information contained in the SAP 69; a pre-sentencing report as
envisaged in Section 276(A)(1) or the examination of the accused
(subject considerations and limitations as set out in the
Masisi
case at 159e), but whether any or all of the aforementioned is
required will depend solely on the facts of each specific case.
[21] The facts pertinent
to the matter, which were the sole basis on which the court
a quo
exercised its discretion, needs to be evaluated.
[22] The appellant was
born on 5 April 1968. The list of previous convictions shows the
following:
On 2 July 1987 the
appellant was convicted of robbery and sentenced to two lashes with
a cane.
On 25 July 1988 the
appellant was convicted on one count of theft and one count of
assault, which were taken together for purposes
of sentence, and
sentenced to six lashes with a light cane.
On 14 February 1989 the
appellant was in terms of Section 14(1) of Act 23 of 1957 and
sentenced to two years imprisonment which
was suspended in total for
four years on condition that the appellant not be convicted of a
transgression of Section 14(1) of
Act 23 of 1957 committed during
the period of suspension. The appellant was also sentenced to seven
lashes with a light cane.
On 23 March 1989 the
appellant was convicted of attempted theft and assault and sentenced
respectively to a fine of R150.00 or
75 days imprisonment and a fine
of R60.00 or 30 days imprisonment.
On 28 April 1989 the
appellant was convicted for robbery and sentenced to three years
imprisonment.
On 26 August 1991 the
appellant was convicted of theft and sentenced to six months
imprisonment.
On 13 November 1992 the
appellant was convicted of theft and sentenced to nine months
imprisonment.
On 26 November 1992 the
appellant was convicted of kidnapping and sentenced to three months
imprisonment which was suspended in
total for a period of five years
on condition that he not be found guilty of the same crime committed
during the period of suspension.
On 15 May 1995 the
appellant was convicted of theft committed and sentenced to three
years imprisonment.
On 7 December 2000 the
appellant was convicted of theft and sentenced to a R600.00 fine or
sixty days imprisonment which was suspended
in toto subject to the
condition that he not be found guilty of the crime of theft
committed during the period of suspension.
On the 4 August 2003 the
appellant was convicted of theft and sentenced to either R300.00
fine or one month imprisonment.
On the 3 March 2008 the
appellant was convicted of theft and sentenced to a fine of
R1 000.00 or four months imprisonment.
On 21April 2010 the
appellant was convicted of theft and sentenced to a fine of R600.00
or three months imprisonment.
Lastly, the list of
previous convictions shows the conviction on 14 December 2010 for a
theft committed on 24 August 2010, therefore
after the date of the
crime for which the appellant was charged in this matter. The
appellant was sentenced to six years imprisonment
of which a period
of three years imprisonment was suspended for five years on
condition that the accused not be found guilty
of a similar offence
of which dishonesty is an element, committed during the term of
suspension which was imposed. Importantly
the accused was warned in
terms of the provisions of Section 286 of Act 51 of 1977 that he
runs the risk of being declared an
habitual criminal.
[23] A critical analyses
of the previous convictions show that the appellant’s first
conviction occurred when he was nineteen
years of age. A series of
eight convictions followed in the next five years, including
attempted theft, theft and robbery. Save
for the crime, date of
conviction and sentence imposed, no other information is available
with regards to the appellant’s
personal circumstances at that
stage or the specifics of the crimes. The sentences imposed may to
some extent be an indication
of the seriousness of the crimes, or
not.
[24] After the spree, the
appellant had no convictions for a period of two and a half years
before the next conviction. Another
five and a half years passed
without any convictions. Again a period of two and a half years and
thereafter a further period of
four and a half years passed between
convictions. A further two years passed before the conviction in
April 2010 and the present
theft which forms the subject matter of
the proceedings on appeal. The crime for which the appellant was
convicted during 24 August
2010 was committed whilst the appellant
was out on bail awaiting trial in the matter that forms the subject
of these proceedings.
The court in that matter did issue a warning to
the appellant that he runs a risk of being declared an habitual
criminal.
[25] Several questions
arise when simply considering the list of previous convictions of
which but some are posed. What motivated
the appellant as a young 19
year old to commit the number of crimes in quick succession during
the following five years? What did
the appellant steal or attempt to
steal? The sentences were conspicuously light. The answers to these
questions are unknown. The
details captured in the criminal record
does not justify inferences that the periods between convictions were
not substantial because
the crime for which the next conviction
followed would have had to have been committed between the
convictions. That is nothing
more than mere speculation. The last
five entries do show that the period between the dates on which the
crime was committed and
the date of conviction were relatively short,
in other words the conviction followed shortly after the crime was in
fact committed.
This illustrates how insufficient the mere recital of
previous convictions can be when assessing whether the appellant
commits
crime habitually.
[26] It is clear that
periods of four and five years did pass without any convictions. What
caused the appellant to revert to his
ways of crime is of course
unknown. No inferences are justified in this matter based solely on
the criminal record regarding the
appellant’s conduct during
those impasses.
[27] The appellant has
committed eleven crimes which were considered to be relevant by the
court
a quo
over a 25 year period.
[28] This does not begin
to compare with the ‘bad’ track record of the accused in
the
Van Eck
case where the criminal record without more
was considered to be sufficient to justify the declaration.
[29] The list of previous
convictions by itself in this matter did not justify the inference
that the appellant committed crimes
habitually and that the community
needed to be protected against him.
[30] The Appellant’s
record does not justify the conclusion that the appellant committed
offences whenever the occasion presented
itself or whenever he found
himself hard pressed financially or unable to afford something he
wanted.
[31] The appellant’s
previous convictions do show a propensity towards crimes of
dishonesty. To this end the appellant has
been warned, during
December 2010, that he runs the grave risk of being declared an
habitual criminal.
[32] It is clear that the
fact that the appellant perpetrated a theft whilst he was out on bail
in this matter, an offence for which
he was eventually convicted when
the warning in terms of Section 286 was issued, played the overriding
consideration in satisfying
(“convincing”) the court
a
quo
that the appellant committed crimes habitually and that the
community should be protected against him. For reasons already set
out in this judgment, the facts in this matter to which the court
a
quo
applied its mind, could not and to my mind did not justify
the inference that the appellant habitually committed crimes and the
community needs to be protected from him or that a declaration was
justified without a warning having been made. The warning that
had
been issued could not be a relevant consideration during these
proceedings for obvious reasons.
[33] There are also other
indicators which show that the court
a quo
did not exercise
its discretion judicially. The court
a quo
clearly did not
appreciate what was expected of it prior to the declaration being
made. It posed the question to the defence during
the arguments for
leave to appeal regarding how an ‘investigation’ into
previous convictions would be conducted. The
magistrate was however
referred to the
Masisi
judgment during the sentencing
proceedings, on behalf of the appellant, and that judgment contains a
convenient exposition with
regards to what is expected of the court
as well as the various options which may be utilised during the
sentencing stage if the
court is of the opinion that it needs to
receive further evidence in order to inform itself as to proper
sentence to be passed.
See also
S v Mdliva
1981 (2) SA
475
(E). Furthermore, the facts of this matter, as stated, were not
such that a declaration in absence of a prior warning was justified.
[34] The sentence lacks
compassion and amounts to insufficient weight having been given to
the appellant’s personal circumstances.
[35] For these reasons I
find that the discretion was not exercised properly.
[36] Mr Pretorius, on
behalf of the appellant, submitted that the declaration must be
substituted with a sentence of ten (10) years
imprisonment.
[37] The submission fails
to take into consideration all the appellant’s personal
circumstances which were relevant when the
sentence under
consideration was imposed.
[38] Section 280 of the
CPA provides as follows:
“
280
Cumulative or concurrent sentences
(1) 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.
(2) 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.
[Sub-s. (2) substituted
by s. 47 (a) of Act 129 of 1993.]”
[39] It needs to be
considered whether on the facts of the matter it would be justified
to order that the sentence or part thereof
run concurrently with the
sentence already undergone.
[40] The present crime of
which the appellant was convicted was committed before the crime for
which the appellant is undergoing
the effective three year
imprisonment sentence.
[41] The appellant’s
actions do show a propensity towards crimes of dishonesty, as stated.
The appellant did not adduce any
evidence to displace this
conclusion.
[42] On the other hand it
needs to considered what the effect of the sentences would be if it
runs consecutively. The suggested
sentence would mean that the
appellant will serve an effective term of 13 years imprisonment.
[43] The court should in
light of this personal circumstance consider whether it must
ameliorate the effect of the sentence it will
impose together with
the sentence already served, by ordering that part of it be served
concurrently with the term already undergone.
[44] All facts considered
it will not be disproportionate to the crime or the interest of
society if it be ordered that two years
of the sentence imposed run
concurrently with the sentence that is already undergone. The
appellant will effectively serve a term
of nine (9) years for the
crimes of which he has been convicted.
[45] In these
circumstances the conviction must be confirmed but the sentence is
set aside and will be replaced with a sentence
of eight (8) years
imprisonment of which two (2) years of the eight (8) year sentence
imposed shall run concurrently with the sentence
that the appellant
is already undergoing for theft with reference number 2010 WHY 667.
The sentence will also be antedated to 2
June 2011.
IN RESULT:
1. The appeal succeeds.
2. The declaration that
the appellant be declared an habitual criminal in terms of
Section
286
of the
Criminal Procedure Act 51 of 1977
is set aside and
replaced with a sentence of eight (8) years imprisonment and it is
ordered in terms of
Section 280(2)
of the
Criminal Procedure Act 51
of 1977
that a period of two (2) years of the eight (8) year sentence
imposed shall run concurrently with the sentence that the appellant
is already undergoing for theft with reference number 2010 WHY 667.
3. The sentence is
antedated to 2 June 2011.
___________________
N. SNELLENBURG, AJ
I concur.
____________
K.J. MOLOI, J
On behalf of the
appellant: Mr K. Pretorius
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv S Giorgi
Instructed by:
Director Public
Prosecutions
BLOEMFONTEIN
NS/sp
1
S
v Niemand
2001 (2) SACR 654
(CC)
2
S
v Makoula 1978(4) SA 763 (SCA)
3
S
v Lindani
[2004] ZAECHC 37
per Jones and Chetty JJ