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[2012] ZAGPPHC 302
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S v Bangiso (A 129/12) [2012] ZAGPPHC 302; 2013 (1) SACR 558 (GNP) (16 November 2012)
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REPORTABLE
IN THE NORTH GAUTENG
HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
No. A 129/12
DATE:16/11/2012
In
the appeal of:-
NADIA
NTOMBOXOLO
BANGISO
........................................................
Appellant
and
THE
STATE
…..........................................................................................
Respondent
JUDGMENT
Van
der Byl AJ:-
[1]
This is an appeal, with leave of the magistrate, against sentence
only.
[2]
The Appellant (to whom I will for the sake of convenience refer to as
“the
Accused")
was charged in the regional court, sitting at Pretoria, on four
charges, namely -
(a)
two charges of contravention of section 10(a) of the Sexual Offences
Act, 1957 (Act 23 of 1957) (counts 1 and 2), in that upon
or about
March 2007 and at or near Pretoria the Accused did wrongfully and
unlawfully procure or attempt to procure P M, a girl
aged 16 years,
and N N, a girl aged 15 years, to have unlawful sexual intercourse
with any other person other than the Accused
herself or in any way
assist in bringing about such intercourse by instructing the said
girls to have sexual intercourse with unknown
adult male persons;
(b)
two charges of kidnapping (counts 3 and 4) in that upon or about the
same period and at or near the same place the Accused did
unlawfully
and intentionally deprive the said P M and N N of their liberty
against their will or deprive their guardians of their
lawful control
of these girls by keeping them against their will in Lodge Ingwe No.
94, Reilly Street, Pretoria.
[3]
The Accused pleaded not guilty to all these charges, but was
convicted as charged on all counts on 12 November 2008 and was
on 26
February 2009 sentenced -
(a)
on counts 1 and 3, taken together for purposes of sentence, to five
years imprisonment in terms of
section 276(1)(/)
of the
Criminal
Procedure Act, 1977
{‘-the Act'):
(b)
on counts 2 and 4, taken together for purposes of sentence, similarly
to five years imprisonment in terms of the said section
276(1)(/).
[4]
The Accused filed an application for leave to appeal against the
sentences imposed on 13 November 2009, almost nine months late
(and
after having served almost all of the compulsory one-sixth of one of
the two sentences), but was granted condonation for such
late-filing
and leave to appeal against the sentences imposed (and on the same
date released on bail pending this appeal).
[5]
As is apparent from the Accused’s Notice of Appeal, her appeal
is in effect based on the grounds thereof -
(a)
that the magistrate erred in sentencing the Accused to two terms of
imprisonment under section 276(1)(/) of the Act “without
ordering that the two terms run concurrently, thereby sentencing the
(Accused) to an effective term of imprisonment, before the
(Accused)
would be eligible to be placed under correctional supervision in the
discretion of the Commissioner of Correctional Services”
which
sentence is, so it is submitted, shockingly inappropriate;
(b)
that the magistrate erred in imposing a sentence that does not give
affect to the magistrate’s intention at the time.
[6]
In order to duly appreciate these grounds they must be seen against
the background of the averments made in the Accused’s
affidavit
filed in support of her application for condonation for the
late-filling of her application for leave to appeal.
[7]
In this affidavit she stated -
(a)
that at the time she was sentenced she was advised that she would
only have to serve 10 months in respect of each of the sentences
imposed and elected to accept the sentence as such;
(b)
that she was later advised by an officer of the Department of
Correctional Services that the effect of the sentence was that
she
should serve the full five years of her sentence and thereafter to
serve 10 months of the second sentence imposed before she
can be
considered for correctional supervision;
(c)
that she was then taken back to court to obtain clarity on the
sentence where the magistrate on that occasion on 1 July 2009
confirmed that the sentences were not to run concurrently.
[8]
A transcription of the proceedings held on 1 July 2009 shows -
(a)
that the question whether she was first to serve five years of the
first sentence imposed and thereafter to serve 10 months
of the
second sentence before she can be considered for correctional
supervision, was debated with a view of persuading the magistrate
to
refer the matter for special review;
(b)
that the magistrate indicated that what she had in mind was that the
Accused should serve at least 20 months of the 10 years
period of
imprisonment she was imposed;
(c)
that the magistrate indicated that there is in her view nothing wrong
with the sentences she imposed and that, in so far as
the
Commissioner of Correctional Services may have a problem in
interpreting the sentences, it is for the Accused to take the
Commissioner’s decision on review, but that the Accused can
take her decision on review on the grounds thereof that the sentence
imposed is an incompetent one or to otherwise take the matter on
appeal (hence the eventual application for leave to appeal).
[9]
The question which we are in my view called upon to pronounce upon is
whether the sentences imposed by the magistrate are competent
sentences as envisaged in section 276(1)(/) of the Act and, if so,
whether they give effect to the magistrate’s intention.
[10]
These questions first of all call for a consideration of the relevant
legislative provisions.
[11]
The sentences imposed upon the Accused purport, as I have already
indicated, to have been imposed in terms of section 276(1)(/)
of the
Act which reads, in so far as it is relevant for present purposes, as
follows:
“
(1)
Subject to the provisions of this Act and any other law and of the
common law. the following sentences may be passed upon a
person
convicted of an offence, namely-
(i)
imprisonment from which such a person may be placed under
correctional supervision in the discretion of the Commissioner or
a
parole board ”.
[12]
The circumstances under which a sentence may be imposed in terms of
section 276(1)(/) is regulated by section 276A(2) of the
Act which
reads, in so far as it is likewise relevant, as follows:
v'(2)
Punishment shall............................ only be imposed under
section 276 (1)
(O’
(a)
if the court is of the opinion that the offence justifies the
imposing of imprisonment, with or without the option of a fine,
for a
period not exceeding five years; and
(b)
for a fixed period not exceeding five years.”.
[13]
In relation to a period of imprisonment imposed in terms of section
276(1)(/) to be served, section 73(7)(a) of the Correctional
Services
Act, 1998 (Act 111 of 1998), provides as follows:
“
A
person sentenced to incarceration under
section 276
(1) (i) of the
Criminal Procedure Act, must
serve at least one sixth of his or her
sentence before being considered for placement under correctional
supervision, unless the
court has directed otherwise." (My
emphasis).
[14]
From these sections it is in my opinion obvious -
(a)
that the court concerned must be of the opinion that the offence
concerned
justifies
the imposition of imprisonment (whether or not coupled with a fine)
for a period not exceeding five years in which event
the imprisonment
imposed should not exceed a fixed period of five years, obviously,
without the option of a fine
(section 276A(2))
;
(b)
that at least one-sixth of the period of imprisonment imposed which
can never, if the maximum period of five years imprisonment
is
imposed, be less that 10 months, being the period after which
placement under correctional supervision should be considered
by the
Commissioner “unless the Court has directed otherwise”
(section 73(7)(a))
, by determining a longer period than the envisaged
one-sixth of the period of imprisonment imposed.
[15]
In applying the provisions of this section to the circumstances of
this matter, it would appear as if the magistrate were of
the opinion
that the four offences in question justified an aggregate period of
10 years imprisonment of which the Accused should
serve 20 months,
being one-sixth of 10 years.
[16]
As is apparent from the provisions of
section 276A(2)
, a court is not
competent to impose a sentence in terms of
section 276(1)(/)
in
respect of an offence which in the court’s opinion justifies a
sentence in excess of five years imprisonment.
[17]
The question, however, is whether or not the five year period
prescribed in
section 276A(2)
should be calculated only in respect of
the one offence of which the accused is to be sentenced or in respect
of the aggregate
period of imprisonment
imposed
in respect of that one offence, together with any other periods of
imprisonment, whether or not in terms of
section 276(1)(/)
, which may
also have been imposed in respect of any other offence or offences
the accused may have been convicted.
[18]
In S v Gouws 1995(1) SACR342(T) the Judges were concerned with a
matter on review where the accused had, apart from having
been
convicted on a charge of theft, also been convicted on a charge of
having escaped, in contravention of
section 48(1
)(a) of the then
Correctional Services Act, 1959, from a police cell. On the theft
charge he was sentenced to five years imprisonment
in terms of
section 276(1)(/) and on the charge of having escaped to six months
imprisonment. On the question whether the sentence
imposed on the
theft charge was a competent sentence as the aggregate period of
imprisonment imposed on the accused on the two
charges exceeded the
five years imprisonment prescribed in section 276A(2) of the Act, the
Judges in effect held (at 343i-344d)
that the sentence in terms of
section 276(1 )(i) is not rendered invalid by the imposition of a
sentence for another offence which,
together with the former
sentence, exceeds the period of five years as stipulated by section
276A(2). The practical problems arising
from compliance with section
280(2) in such a situation can be overcome, so it was held, in two
ways, namely, the court can order
that the sentence of ordinary
imprisonment be served before the sentence in terms of s 276(1)(/)
or, in the absence of such an
order, the Commissioner of Correctional
Services can determine in terms of section 32(2) of the (then)
Correctional Services Act,
1959 (section 139(2) of the now existing
Correctional Services Act, 1998
), that the sentences be served in
that order.
Subsections
(1) and (2) of section 280 of the Act to which reference is made in
that judgment, reads as follows:
280.
(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.".
Section
139(2)
of the
Correctional Services Act, 1998
, to which is also
referred to in that judgment, reads as follows:
“
(2)
(a) Subject to the provisions of paragraph (b), a person who receives
more than one sentence of incarceration or receives additional
sentences while serving a term of incarceration, must serve each such
sentence, the one after the expiration, setting aside or
remission of
the other, in such order as the (Commissioner of Correctional
Services) may determine, unless the court specifically
directs
otherwise, or unless the court directs such sentences shall run
concurrently..................................................................
[19]
Upon a proper analysis of the reasoning in this judgment, the result
is that a court may, for instance, where an accused is
sentenced on
various charges, none of which justifies the imposition of a period
of imprisonment in excess of five years, impose
in respect of one of
them a period of imprisonment in terms of
section 276(1)(/)
and in
respect of the others such other sentences as the court may deem fit,
whereupon, the Commissioner of Correctional Services
may direct,
unless the court has directed otherwise, that all the other sentences
be served first before the
section 276(1)(/)
sentence is served.
[20]
Although such an approach may, depending on the length of the other
sentences imposed, perhaps, defeat the aims of
section 276(1)(/)
,
which is aimed at mitigating a long term of imprisonment by allowing
for the early release of the accused (S v Scheepers
2006 (1) SACR 72
(SCA) at 76d), the question, however, remains whether such an
approach can be followed where, as in this case, two or more periods
of imprisonment, not running concurrently, are imposed or considered
to be imposed in terms of
section 276(1)(/).
[21]
In my opinion a court is, for obvious reasons, not competent to
impose two or more sentences of imprisonment in terms of
section
276(1)(/)
, which in total exceeds the prescribed five year period.
[22]
As in this case the Accused has in effect cumulatively been
sentenced to 10 years imprisonment in respect of which the provisions
of
section 276(1)(/)
cannot find any application.
[23]
In this regard some guidance can be obtained in the case of S v
Cassiem
2001 (1) SACR 489
(SCA) in which the Court was concerned with
a case where the accused was sentenced to five years imprisonment in
terms of
section 276(1)(/)
plus a further two years imprisonment
which was conditionally suspended. In relation to the effect of such
a sentence the Court
held at 494c as follows:
"The
effect of this was the appellant was, in effect, sentenced to a total
of seven years' imprisonment. This the magistrate
was not empowered
to do under
s 276(1)(i).
This Court in S v Stanley
1996 (2) SACR 570
(A) has already decided that the suspended period of imprisonment
forms an integral part of the total period of imprisonment. It
was
held that to render the sentence under
s 276(1)(i)
competent the
total period of imprisonment should not exceed five years, because
such excess may interfere with the exercise of
the discretion by the
Commissioner of Correctional Services under the section. In my view,
the sentence imposed by the magistrate
offended against the
provisions of
s 276(A)(2)(b)
which forbids the imposition of a
sentence in excess of five years under
s 276(1)(i).
”.
[24]
In so far as the magistrate intended to impose a sentence in terms of
which the Accused should at least serve 20 months, it
could have been
effected in two ways, namely -
(a)
to combine, as provided in section 276(3)(a) of the Act, any period
of imprisonment she deemed fit in the circumstances, which
may even
be in part suspended, with correctional supervision in terms of
section 276(1 )(h) with imprisonment (S v Stanley
1996 (2) SACR 570
(A) at 575d) on having, of course, considered correctional
supervision after having obtained, as provided in section 276A(1
)(a),
a report from a probation officer or a correctional official;
(b)
to have ordered the two sentences to run concurrently in the event of
which there would have been no difficulty in the interpretation
of
the sentence and the relevant provisions to which I have already
alluded to.
[25]
I am accordingly of the opinion that the sentences imposed are
incompetent sentences and in any event do not give affect to
the
magistrate’s intention.
[26]
I am, however, in considering the mitigating and extenuating
circumstances
referred
to by the magistrate (which I do not need to refer to in this
judgment), in agreement with the magistrate that this is
a matter
where the Accused should serve at least a period of 20 months
imprisonment before her placement under correctional supervision
may
be considered.
[27]
A period of 10 years imprisonment is, however, in my view to harsh in
the circumstances.
[28]
There is also in my view no reason why, the offences being similar
offences not being separated in time, the sentences should
not be
ordered to run concurrently.
[29]
In the result the following order is made:-
1.
THAT the Appellant’s appeal against the sentence imposed be
upheld.
2.
THAT the sentences imposed are set aside and replaced with the
following sentence:
"The
Accused is sentenced on counts 1, 2, 3 and 4, taken together for
purposes of sentence, to 5 years imprisonment in terms
of section
276(1)(i) of the Criminal Procedure Act, 1977 (Act 51 of 1977), and
it is, in terms of section 73(7)(a) of the Correctional
Services Act,
1998 (Act 111 of 1998), directed that the Accused not be considered
for placement under correctional supervision
before she has served at
least two-sixths of the period of five years. ”
3.
THAT the sentence referred to in paragraph 2 of this order be
antedated to 26
February
2009 and that in calculating the period of imprisonment the Accused
is still to serve, the period between 26 February 2009
to 13 November
2009 should be takpn into consideration.
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
I
agree
NIM
MAVUNDLA JUDGE OF THE HIGH COURT
ON
BEHALF OF THE APPELLANT:MR A C RUDMAN (ATTORNEY)
ON
THE INSTRUCTIONS OF: ANTON RUDMAN ATTORNEYS
315
Paul Kruger Street Capital Park PRETORIA
ON
BEHALF OF THE RESPONDENT:ADV M D MATJOKANA
ON
THE INSTRUCTIONS OF: DIRECTOR OF PUBLIC PROSECUTIONS
DATE
OF HEARING:16 NOVEMBER 2012
DATE
OF JUDGMENT:16 NOVEMBER 2012