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[2012] ZAFSHC 239
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Lephuthing v S (A137/2012) [2012] ZAFSHC 239 (14 December 2012)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Appeal No.:A137/2012
In the appeal of:
DAVID LEPHUTHING
...................................................................................
Appellant
and
THE STATE
..............................................................................................
Respondent
______________________________________________________________
CORAM:
MOLEMELA, J
et
THAMAGE, AJ
______________________________________________________________
DELIVERED ON:
14
DECEMBER 2012
______________________________________________________________
MOLEMELA, J
[1] The appellant was convicted of
theft by the district court in Kroonstad. The case was subsequently
transferred to the regional
court, Kroonstad for sentencing. On the
31
st
March 2005 the regional court imposed a sentence in
terms of section 286(1) of the Criminal Procedure Act 51 of 1977
(CPA) by declaring
the appellant a habitual criminal. On the 10
th
May 2006 an application for leave to appeal was launched on behalf of
the appellant but was unsuccessful. On the 16
th
October
2007 the appellant approached this court on petition and leave to
appeal against sentence was granted. This appeal is thus
directed
against the sentence declaring the appellant a habitual criminal. The
reasons for only enrolling the appeal five years
after the granting
of leave to appeal are not evident from the record. This court can
only lament such a state of affairs. Needless
to say, such delays
impact negatively on access to justice and cannot be countenanced.
[2] It is trite
that a court of appeal will interfere with the imposed sentence only
if it is of the view that such sentence is
unreasonable, unjust or is
vitiated by irregularities or if the court
a
quo
has
misdirected itself materially. See
S
v MALGAS
1
.
[3] By way of a
background, it needs to be mentioned that as at the time of the
appellant’s appearance before the regional
court for
sentencing, the appellant had 19 previous convictions for various
counts of theft, housebreaking with intention to steal
and theft, as
well as robbery. One previous conviction related to rape and one to
escaping or attempting to escape from lawful
custody. On the 24
th
July 1992, the
appellant was sentenced to an effective 10 years imprisonment
pursuant to being convicted of housebreaking with intent
to steal and
attempted rape. On that same day, he was formally warned about the
provisions of section 286(1) of the Criminal Procedure
Act, 1977
(CPA). On the 27
th
June 1994, the
appellant was convicted on 3 counts of housebreaking with intent to
commit theft and theft. Upon his conviction,
he was declared a
habitual criminal in terms of section 286(1)
2
of the CPA. After
serving a period of 10
years in custody, the appellant was released on parole in May 2004.
[4]
On the
24
th
November 2004 the appellant was convicted of theft of
chicken portions and concentrated cordial, both valued at R17.00. The
matter
was then transferred to the regional court (court a quo) for
sentencing
on account of the appellant’s
previous convictions as contemplated in section 116(1) of the CPA
.
On the 31
st
March 2005 the court a quo declared him a
habitual criminal. It is clear from the record that the court
a
quo
did not, prior to making this declaration, embark on any
enquiry to establish the circumstances pertaining to the appellant’s
commission of the offence.
[5] It was argued on behalf of the
appellant that his declaration as a habitual criminal ought to be set
aside, as it was not preceded
by any investigation by the court
a
quo.
The record reveals that before declaring the appellant as a
habitual criminal, the court
a quo
remarked that it was aware
that the appellant had previously been declared a habitual criminal
by another court. It further stated
that it was clear that previous
sentences had not had a deterrent effect on the appellant.
[6] The court
a quo
in its
judgment nevertheless proceeded to declare the appellant a habitual
criminal on the basis of its own conclusion that he
was a person that
habitually committed offences and that the society ought to be
protected against him. This conclusion was purely
on the basis of the
appellant’s previous convictions, which the court a quo found
to be related to the offence the district
court had convicted him of.
In effect the same previous convictions relied upon by the first
court that declared the appellant
a habitual criminal plus one more
conviction on petty theft led to the appellant being declared a
habitual criminal for a second
time.
[7] During the hearing of the appeal,
the state conceded that the court
a quo
’s declaration of
the appellant as a habitual criminal was a material misdirection
insofar as it was not preceded by an investigation
of any sort.
Indeed, it would seem that the appellant’s prior declaration as
a habitual criminal served as a main consideration
for the court
a
quo
’s decision.
[8] In the case of
S
v STENGE
3
(“Stenge case”) at par 14
Allie, J stated as follows:
“
I
am not convinced that force of habit is the only reasonable inference
that can be drawn from a long list of frequent previous
convictions.
In cases involving petty theft, the court, in considering whether to
apply s 286(1) should have regard to the socio-economic
conditions of
the offender as well as all other relevant factors in determining
what motivated that person.”
[9] In agreeing with what was held in
S v NAWASEB
4
(where it was held that a presiding
officer must advance sound reasons why he was satisfied that offences
were committed out of
habit), Allie J pointed out that he was not
convinced that the only inference that can be drawn from a long list
of frequent previous
convictions was force of habit. The court
observed that precisely because the accused was also being punished
for his previous
convictions, a court should know why they were
committed. It concluded that it would be more appropriate to have an
enquiry to
determine why the appellant repeatedly committed certain
offences rather than assuming that they were committed out of habit.
I
share this view and therefore believe that the respondent’s
concession, that the court a quo committed a material misdirection,
was correctly made.
[10] The
STENGE
case
bears the following similarities with the present one: the conviction
pursuant to which the accused person was declared a
habitual criminal
was a petty offence. The following differences are important: (i)
in
casu
the appellant’s previous convictions relate to more
serious offences and (ii) the appellant had previously been declared
a habitual criminal.
[11] In the case of
S
v NIEMAND
5
the Constitutional Court held that a
sentence in terms of which an offender is declared a habitual
criminal must be read and applied
as if it is subject to a maximum of
15 years imprisonment. Regarding release of such an offender from
custody section 73(6)(c)
of the Correctional Services Act III of 1998
provides that a person so declared may be detained in a prison for a
period of 15
years and may not be placed on parole until after a
period of at least seven years.
[12] As stated before, the appellant
was released from prison on parole 10 years after his declaration as
a habitual criminal. Applying
the principle laid down in the Niemand
case this means he could have been kept in custody for a further 5
years had it not been
for his release on parole. The fact that he
committed another offence after his release on parole obviously means
that he violated
his parole conditions and the parole board could
order that he be re-incarcerated for another five years to complete
the maximum
period of incarceration.
[13] The court
a quo
instead
regarded the commission of the afore-mentioned offence as a basis for
a new declaration of the appellant as a habitual
criminal, which
would mean that the appellant could technically spend another 15
years in custody on the basis of this new declaration,
when he could
have been released after a period of five years from his
re-incarceration on account of violating his parole conditions
and
serving whatever sentence imposed for his petty theft. This approach
is very drastic on an offender and cannot, in my view,
be correct.
Its draconian nature is borne out by the fact that the appellant has
been in custody for a longer period than the 15
year period he would
have served as the maximum period of incarceration on the basis of
his first declaration as a habitual criminal.
[14] Relying on the
STENGE
case, I am of the view that the court
a quo
ought to have made
a fresh enquiry as to whether another declaration as a habitual
criminal was justified. Of significant relevance,
in this enquiry,
would have been the fact that from the time of the first declaration
as a habitual criminal, a period of 10 years
passed without the
appellant being involved in any further criminal acts. The court
a
quo
was very dismissive of this aspect, stating that his lack of
further involvement in crime was due to the fact that he was
incarcerated
during that period and that consequently his opportunity
for commission of crimes of dishonesty in a correctional facility was
lessened. In my view, undue regard should not be paid to a person’s
incarceration during the period of his / her abstinence
from
involvement in crime because no matter how limited opportunities for
commission of crime in a correctional facility may be,
various
offences are still committed there on a daily basis. In my view,
irrespective of the appellant’s incarceration, this
period
remains a period during which he did not commit offences and deserves
to be acknowledged as such. It is thus a period that
is relevant in
an enquiry aimed at determining whether he was or is a person that
habitually commits offences.
[15] In my view, the facts of this
case demonstrate the need for a declaration as a habitual criminal to
be preceded by an enquiry.
The appellant, upon conviction on a very
petty offence like theft of food valued at R17.00 was, for a second
time in his life,
declared a habitual criminal. Without entering the
realm of speculation, there is a good chance that an enquiry would
have revealed
that the offence was motivated by need rather than a
force of habit as the appellant was a self-employed painter, whose
highest
scholastic achievement was grade five, earning a meagre
income, having a fourteen year old child to support. Under such
circumstances,
it is highly unlikely that such a declaration would
have been made. The likelihood is that a suspended sentence would
have been
imposed. The circumstances of this case demonstrate that
the interests of justice will be best served if a decision to declare
an offender a habitual criminal is, in cases involving petty theft,
preceded by the presiding officer holding an enquiry to determine
the
offender’s motivation for committing such offences.
[16] Placing reliance on the
STENGE
case, I am of the view that the failure by the court a quo to hold
such an enquiry constitutes a material misdirection that warrants
the
setting aside of its sentence. In my view, given the fact that this
appeal was heard a very long time after the imposition
of the
sentence, this court ought to replace the court quo’s sentence
with a suitable sentence without remitting the matter
back for
purposes of making an enquiry so as to determine whether a
declaration is warranted or not. In the
STENGE
case,
the court concluded that given the petty offence the appellant had
been convicted of (
viz.
theft of two packets of chicken) the
punishment imposed by the court a quo was excessive and fitted
neither the crime nor the criminal.
In that case, the declaration as
a habitual criminal was set aside and, the appellant was sentenced to
two years imprisonment wholly
suspended on certain conditions.
[17] Having considered all the
circumstances of this case, including the appellant’s
mitigating factors an appropriate order
would be the following:
(i) The appeal against sentence
succeeds.
(ii) The order of the court
a quo
made in terms of section 286(1) of CPA and declaring the appellant as
a habitual criminal is set aside.
(iii) The following sentence is
imposed on the appellant:
Twelve months imprisonment wholly
suspended for three years on condition that the appellant is not
again found guilty of theft committed
during the period of
suspension.
The sentence mentioned in paragraph
(iii) above is antedated to the 31
st
March 2006.
_________________
M.B. MOLEMELA, J
I concur.
___________________
S. J. THAMAGE, AJ
On behalf of the applicant: K.
Pretorius
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of the respondent: Adv. S
Mthethwa
Instructed by:
The Director: Public Prosecutions
BLOEMFONTEIN
/eb
1
2001
(1) SACR 469
(SCA) at 478F
2
This
section provides that:
“
Subject to the
provisions of sub-section (2), a superior court or a regional court
which convicts a person of one or more offences,
may if it is
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.”
3
2008
SACR 27
(C)
4
1980
(1) SA 339
(SWA)
5
[2001] ZACC 11
;
2002
(3) BCLR 219
CC