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
>>
2012
>>
[2012] ZAFSHC 163
|
|
Mphale v S (A83/2009) [2012] ZAFSHC 163 (30 August 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A83/2009
In the appeal between:-
JOSEPH MPHALE
....................................................................
Appellant
and
THE STATE
..........................................................................
Respondent
_____________________________________________________
CORAM:
MOCUMIE, J
et
DANZFUSS, AJ
_____________________________________________________
HEARD
ON:
20 AUGUST 2012
_____________________________________________________
DELIVERED
ON:
30 AUGUST 2012
_____________________________________________________
MOCUMIE, J
[1] This is an appeal
from the Regional Court, Bloemfontein. The appellant appeared in the
Regional Court on one count of housebreaking
with the intent to rob
and robbery. He pleaded guilty and was convicted as charged and
sentenced to fifteen years imprisonment
in terms of the Criminal Law
Amendment Act 105 0f 1997
(“the Criminal Law Amendment
Act”).
His leave to appeal the
sentence was dismissed by the trial court but granted on petition by
this Court on 28 August 2008.
[2] It is common cause
between the State and the defence that the Regional Magistrate
convicted the appellant on a lesser charge
of housebreaking with
intent to rob and robbery and not housebreaking with intent to rob
and robbery with aggravating circumstances.
The question is whether
the trial court was correct in imposing the prescribed sentence
mandated for robbery with aggravating circumstances
within the
purview of the Criminal Law Amendment Act.
[3] Mr Van der Merwe on
behalf of the appellant submitted that the trial court erred when it
imposed fifteen years in terms of Criminal
Law Amendment Act as the
appellant was not charged with robbery as read with section 1 of the
Criminal Procedure Act 51 of 1977
(“the CPA”)
and
section 51 of the Criminal Law Amendment Act on the following
grounds.
3.1. The charge sheet
made no reference to any aggravating circumstances surrounding the
commission of the housebreaking and robbery;
3.2. The Regional
Magistrate did not alert the appellant to the possibility of the
imposition of the fifteen years prescribed term
of imprisonment upon
conviction as it is mandatory to do so regardless of the fact that
the appellant was legally represented;
and
3.3.. That the
irregularity committed by the Regional Magistrate was material and
prejudicial to the appellant and affected his
right to a fair trial.
[4] On the severity of
the sentence, he submitted that had the Regional Magistrate not
erroneously applied the Criminal Law Amendment
Act, he would not have
imposed fifteen years but at least eight or six years imprisonment
taking into account the appellant’s
favourable circumstances.
In the event that this Court found that it could amend the charge to
disclose the more serious charge,
there were compelling and
substantial circumstances which justified the trial court to have
deviated from the prescribed fifteen
years imprisonment as the
appellant pleaded guilty and thereby showed remorse over what he had
done; had been in custody awaiting
trial over a year and a six
months; and part of the property stolen which was in his possession
was recovered.
[5] It is correct as Mr
Botha, on behalf of the State, conceded that the Regional Magistrate
indeed convicted the appellant as per
the transcribed record on
housebreaking with intent to commit robbery and robbery. The relevant
part of the transcribed record
referred to on page 12 reads:
“…
[E]k
is tevrede dat beskuldigde 1 is skuldig aan huisbraak met die opset
om te roof soos hy dit gepleit het in die omstandighede.”
On page 13 the record
reads:
“
UITSPRAAK
HOF: Wat beskuldigde 1 aanbetref wat
aanklag 1 betref waarop hy skuldig gepleit het,is ek tevrede deur die
artikel 112(2) verklaring
asook die addisionele inligting verskaf op
vrae van die hof dat hy skuldig is aan huisbraak met die opset om te
roof en roof en
hy word
SKULDIG
bevind.”
[6] It is also correct as
Mr Botha conceded further that there is no mention of the specific
section(s) of the
Criminal Procedure Act and
the Criminal Law
Amendment Act applicable in this particular case on the charge sheet,
indicating the aggravating circumstances
which existed at the time of
the commission of the offence.
The annexure to the
charge sheet reads:
ANNEXURE/AANHANGSEL
CASE NO: SH 38/05
SAAK NO
COUNT NO: 1
AANKLAG NO:
The State versus
Joseph Mphale + 3
HUISBRAAK MET DIE OPSET OM TE ROOF
EN ROOF
Dat die beskuldigde (s) skuldig is aan
die misdaad van Huisbraak met die opset om te roof en roof
(gelees
met die bepalings van artikel 262 (1) en artikel 260
van
die Strafproseswet 51 van 1977) ook saamgelees met die strafwysingwet
105 van 1997
.
(My
own emphasis)
Deurdat op of omtrent die 9/12/2004 en
te of naby Van Zyl straat, Brandfort in die Streekafdeling van
Vrystaat die beskuldigde(s)
wederegtelik en opsetlik die huis van Mev
Spies oopgebreek en binnegegaan het met die opset om te roof en toe
daar wederegtelik
en opsetlik vir Mev Spies aangerand het en met
geweld uit haar besit goedere soos per aangehegte lys geneem het,
synde haar eiendom
of eiendom in haar regmatige besit.”
[7] Mr Botha was however
at pains to persuade this Court that these two aspects that he
conceded were mere technicalities that in
no way prejudiced the
appellant. In his view the appellant was legally represented
throughout the trial in the Regional Court.
The appellant and his
legal representative were aware of the reference to the Criminal Law
Amendment Act albeit it not in compliance
with numerous decisions of
the Supreme Court of Appeal. The appellant and his legal
representative acquiescenced with the trial
court when the legal
representative addressed it on the existence or non-existence of
compelling and substantial circumstances
in terms of the Criminal Law
Amendment Act.
[8] He submitted
furthermore that during his application for leave to appeal, the
appellant did not raise the ground that the Criminal
Law Amendment
Act was not applicable. It was the first time that this was raised on
appeal. I disagree with this reasoning. The
failure by the accused
and his legal representative to object to what patently irregular
procedure is can never turn such an irregular
act into a lawful or
regular one.
[9] He submitted that the
pronouncement of the conviction of ‘housebreaking with intent
to rob and robbery’ by the Regional
Magistrate was a
bona
fide
mistake. That the Regional Magistrate, based on the
circumstances of the case, should have convicted the appellant with
‘housebreaking
with intent to commit robbery and robbery with
aggravating circumstances.’ That this Court is in as good a
position to correct
that erroneous verdict and return the correct
one.
[10] In respect of the
sentence, he submitted that the circumstances of this case were
serious in that two elderly people were attacked
in the safety of
their home. Although not severely assaulted or harmed with weapons
they were traumatised as a result of this ordeal
and items worth R50
000,00 plus were stolen from their home with only four retrieved from
the appellant. The sentence of fifteen
years ,so he argued, was
appropriate regardless of whether the Criminal Law Amendment Act was
applicable or not.
[11]
On a vigilant examination of the transcribed record,
1
which
the State accepted to reflect correctly what transpired during the
trial and which the trial court at no stage disavowed,
it is clear
that the State did not prosecute the appellant for housebreaking with
intent to commit robbery and robbery with aggravating
circumstances
read with the provisions of section 1 of the CPA and section 51(2) of
the Criminal Law Amendment Act read with Part
II Schedule 2.
2
It is
also clear from the appellant’s s112 statement that the
appellant pleaded guilty on the lesser charge; that the State
accepted that plea as tendered and that the Regional Magistrate
convicted him on that tendered plea.
[12]
It is also clear that at no stage prior to his conviction was the
appellant appraised of the possibility that he could be sentenced
to
fifteen years in terms of the Criminal Law Amendment Act and in line
with a plethora of judgments of the Supreme Court Appeal
which state
categorically that the charge sheet must indicate which section of
the Criminal Law Amendment Act will be applicable
in order for the
appellant to have an opportunity to prepare himself properly for his
trial.
3
[13] It is trite that in
terms of s304 (2)(c)(iv) and 309 (3) it is still possible to amend
the charge on appeal or review,being
the
‘
order
as the magistrate’s court ought to have given.’
The essential question is
whether there is any reasonable possibility of prejudice to the
accused if the amendment is granted.The
test is thus whether the
accused will be worse off than (s)he would have been had the charge
in its amended form existed when (s)he
initially asked to plead.
4
In
my view, f
or
this Court to amend the charge as well as the verdict pronounced to
‘housebreaking with intent to commit robbery and robbery
with
aggravating circumstances as suggested by the State will not only
highly prejudice the appellant, but will fly in the face
of the right
to a fair trial as envisaged in Section 35(3) (a), (b) and (n) of the
Constitution and will lead to injustice.
5
As
Cameron
JA
stated
with regard to the constitutional right to a fair trial in
S
v Legoa
6
“
'Under the common law it was therefore
"desirable" that the charge-sheet should set out the facts
the State intended to
prove in order to bring the accused within an
enhanced sentencing jurisdiction. It was not, however, essential. The
Constitutional
Court has emphasised that under the new constitutional
dispensation, the criterion for a just criminal trial is "a
concept
of substantive fairness which is not to be equated with what
might have passed muster in our criminal courts before the
Constitution
of the Republic of South Africa Act 108 of 1996 came
into force". The Bill of Rights specifies that every accused has
a right
to a fair trial. This right, the Constitutional Court has
said, is broader than the specific rights set out in the sub-sections
of the Bill of Rights' criminal trial provision. One of those
specific rights is "to be informed of the charge with sufficient
detail to answer it". What the ability to "answer" a
charge encompasses this case does not require us to determine.
But
under the constitutional dispensation it can certainly be no less
desirable than under the common law that the facts the State
intends
to prove to increase sentencing jurisdiction under the 1997 statute
should be clearly set out in the charge-sheet.
The matter is, however, one of substance and nor form, and I would be
reluctant to lay down a general rule that the charge must
in every
case recite either the specific form of the scheduled offence with
which the accused is charged, or the facts the State
intends to prove
to establish it.”
This
has been reinforced by the CPA, section 84(1).
7
[14] With regards to
sentence, despite the aggravating circumstances the State correctly
pointed out, the trial court was also bound
to take into account the
favourable mitigating factors the appellant placed before it. I am
convinced that had the trial court
had a balanced view of these two
and not erroneously invoked the provisions of the Criminal Law
Amendment Act it would have imposed
a sentence less than fifteen
years. On this basis, this Court is entitled to interfere with the
sentence imposed as it is severe
and unjust.
[15]
Having considered the mitigating and aggravating circumstances of
this case alluded to in the above paragraphs I am of the
view that
fifteen years imprisonment is unjust and disproportionate to the
crime, the criminal and the interests of society. To
impose it would
lead to injustice.
8
Taking
into account that the appellant had spent a year and six months in
custody awaiting trial, he had pleaded guilty accepting
responsibility for the wrong he had committed and other favourable
circumstances already alluded to, I am of the view that, a sentence
of eight years would be appropriate and balanced.
[17]
Having said that, it must be reiterated as the Supreme Court of
Appeal
9
has
repeatedly warned that it is important for prosecutors to be more
careful when drafting charge sheets and indictments to ensure
that
these reflect all the elements of the offence including, as in this
case, the relevant statutory provisions applicable,
section 1
of the
Criminal Procedure Act 51 of 1977
and section 51 (2) of the Criminal
Law Amendment Act 105 of 1997.I think it is even more important for
the prosecution as the
dominis
litis
in
its opening address informs the court that the sections referred to
are applicable and request that the court warns the accused
person(s)
appearing of this fact.
[18] It is also incumbent
on the trial court to ensure that the attention of the accused
person(s) is drawn to this fact to avoid
any injustice such as this
from occurring irrespective of whether the accused is legally
represented or not. The Supreme Court
of Appeal has stated so many
times and the Constitution of South Africa demands that much from all
presiding officers.
[19] In the circumstances
the following order is made:
The appeal succeeds.
The conviction of the
Regional Magistrate on housebreaking with intent to rob and robbery
is confirmed.
The sentence of
fifteen years imprisonment is set aside and substituted with the
following:
“
The
accused is sentenced to eight years imprisonment.”
4. This sentence is
antedated to 28 August 2006 in terms of
section 282
of the
Criminal
Procedure Act, 51 of 1977
.
_________________
B.
C. MOCUMIE, J
I
concur.
____________________
F.
W. A. DANZFUSS, AJ
On behalf of appellant:
Mr. P. L. van der Merwe
Instructed by:
Legal-Aid SA
BLOEMFONTEIN
On behalf of respondent:
Adv. J. P. du P Botha
Instructed by:
Director Public
Prosecutions
BLOEMFONTEIN
BCM/em
1
The
enquiry whether the accused’s substantive fair trial right,
including his ability to answer the charge ,has been impaired,
depends on a vigilant examination of the relevant circumstances.(See
S v Legoa
2003 (1) SACR 13
(SCA) paras 20 & 21
which was shortly
followed by
S v Ndlovu
2003
1 SACR 331
SCA at para 12)
2
Section
51(2)(a)(i)
read with
Part II
of Schedule 2 reads:
“
Notwithstanding any other law but subject to
subsections (3) and (6) ,a regional court or a High court shall
sentence a person
who has been convicted of an offence referred to
in
(a)
Part II
of schedule 2,in the case of-
(i) a first offender, to imprisonment for a period not
less than 15years…
PART II
Robbery –
(a)
when there are aggravating circumstances…;”
3
Phithela
Mapule v The State
817/11[2012] ZASCA 80 (30 may 2012) with
reference to
S v Legoa
fn 1 above ;
S v Ndlovu
fn 1
above ;
S v Makatu
2006 (2) SACR 582
(SCA) paras 3 &
7.See also
Mashinini v The State
(502/11)
[2012] ZASCA 1
(21
February 2012).
4
See
Hiemstra’s Criminal Procedure
and cases cited at 14-19.
5
Section
35(3) (a), (b) and (n) of the Constitution provides:
“
Every
accused person has a right to a fair trial, which includes the
right-
(a) to be informed of
the charge with sufficient detail to answer it;
(b) to have adequate
time and facilities to prepare a defence,
(n) to the benefit of
the least severe of the prescribed punishments if the prescribed
punishment for the offence has been changed
between the time that
the offence was committed and the time of sentencing;
6
See
fn 2 above
at
paras 20 and 21
7
Section
84(1) provides:
“
Subject to the provisions of this Act and any
other law relating to any particular offence, a charge shall set
forth the relevant
offence in such a manner and with such
particulars as to the time and place at which the offence is alleged
to have been committed
and the person, if any, against whom and the
property if any, in respect of which the offence is alleged to have
been committed,as
may be reasonably sufficient to inform the accused
of the nature of the charge…”
8
See
S
v Malgas
2001(1)
SACR 469 (SCA)
9
See
Mashinini v The State
fn
2 above at para [28] with reference to the same remarks made in
Legoa
and
Makatu
above.