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[2012] ZAKZPHC 40
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Pillay v S (AR 483/05) [2012] ZAKZPHC 40 (26 June 2012)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 483/05
In the matter between
:
SUMENTHEN POOBALEN
PILLAY
…....................................
APPELLANT
and
THE STATE
….....................................................................
RESPONDENT
APPEAL JUDGMENT
Delivered on 26 June 2012
______________________________________________________
SWAIN J
[1] As long ago as 09
March 2005 the appellant was sentenced by the Regional Court at
Durban, to six years’ imprisonment,
half of which was suspended
for a period of three years, on condition that the appellant was not
convicted of theft or attempted
theft, committed during the period of
suspension and for which the appellant was sentenced to a term of
imprisonment. This sentence
was imposed upon the appellant, as a
consequence of his conviction on a charge of the theft of trust
monies in the sum of R207,546.29,
being the property of trust
creditors of the appellant, in his practise of an attorney, following
upon a plea of guilty by the
appellant. With the leave of the Court
a
quo
, the appellant appeals against the sentence imposed.
[2] The argument advanced
by Mr. Aboobaker S C, who together with Mr. Winfred, appeared on
behalf of the appellant, was based mainly
upon the proposition that
regard being had to the inordinate delay in the finalisation of the
appeal, together with evidence of
events which occurred in the
intervening period, this Court would be entitled to reconsider the
sentence imposed upon the appellant.
In order to achieve this
objective the appellant applied for leave to place evidence before
this Court and for such evidence to
be taken into account, in the
adjudication of the appeal against sentence. The respondent did not
oppose the application and filed
no answering affidavits dealing with
the evidence tendered by the appellant.
[3] In terms of Section
309 (3) read with
Section 304
(2) of the
Criminal Procedure Act No.
51 of 1977
and Section 22 of the Supreme Court Act No. 59 of 1959,
this Court sitting as a Court of Appeal, can hear further evidence,
or
direct that it be heard, in respect of any matter that is before
it on appeal.
[4] As regards the
exercise by this Court of such a discretion, the following words of
Cloete J A in
S v E B
2010 (2)
SACR 524
at 528 para 5
are apposite.
“
Despite the
wide wording of the statutory provisions, this court has laid down
requirements which must be complied with before it
would be prepared
to hear evidence on appeal. Those requirements were summarised in
S
v De Jager,
have been ‘applied in countless cases since’ and are as
follows:
‘
(a)
There should be some reasonably sufficient explanation, based on
allegations which may be true, why the evidence which it is sought
to
lead was not led at the trial.
There should be a
prima facie
likelihood of the truth of the evidence.
The evidence should be materially
relevant to the outcome of the trial.’
The same requirements apply equally to
any court sitting as a court of appeal:
S v A
. In addition,
the general rule is that an appeal court will decide whether the
judgment appealed from (and that includes a judgment
on sentence) is
right or wrong, according to the facts in existence at the time it
was given, not according to new circumstances
subsequently coming
into existence. Nevertheless, this court has previously indicated
that the rule is not necessarily invariable,
and the rule has
recently been relaxed to allow evidence to be adduced on appeal, of
facts and circumstances which arose subsequent
to the sentence
imposed, where there were exceptional or peculiar circumstances
present:
S v Karolia, S v Michele, S v Jaftha
, and also where
there were misdirections by the court which imposed sentence, which
had the effect that the appeal court was at
large to impose the
sentence it considered appropriate:
S v Barnard
. (It is not
necessary for present purposes to consider whether this latter
situation should be subject to particular safeguards
to prevent an
abuse of the appeal procedure.) The more liberal approach by this
court, shown by a comparison of the decision in
Verster
(where
the court refused to take into consideration a delay in the hearing
of an appeal as a reason for altering a sentence imposed
by a
magistrate) and the decision in
Michele (
where such evidence
was taken into account and the sentence reduced), must not be
interpreted as a willingness to open the floodgates.
In cases such as
the present, where the facts and circumstances arose after sentence,
the application must be carefully scrutinised
to ascertain whether it
does indeed disclose exceptional or peculiar circumstances. It is
undesirable to attempt to define these
concepts further”.
S v de Jager
1965
(2) SA 612
(A) at 613 A
S v A
1990 (1) SACR
534
(C) at 540 c – d
S v Karolia
2006
(2) SACR 75
(SCA)
S v Michele
2010
(1) SACR 131
(SCA)
S v Jaftha
2010 (1)
SACR 136
(SCA)
R v Verster
1952
(2) SA 231
(A)
[5] In
Michele
the Supreme Court of Appeal was satisfied that as
regards the sentence imposed by the trial court, it had not exercised
its discretion
properly and the appeal court was accordingly entitled
to interfere with the sentence. The
“lamentable delay”
(at 135 c) in the finalisation of the appeal of a period
of six years, was however considered in the context of the mental
anguish
the appellants must have suffered because of a lack of
“clarity as to their future”
during
this period, as being a factor which the appeal court should have
regard to in the assessment of an appropriate sentence.
[6] However, in
Jaftha,
the Supreme Court of Appeal was satisfied that there were no
misdirections to be found in the sentence imposed by the Magistrate,
such that the Appeal Court would not ordinarily interfere with the
sentence. However, because of a delay of ten years in the
finalisation
of the appeal the Supreme Court of Appeal, in the light
of the evidence of events in the intervening period, was satisfied
the
sentence imposed ten years ago should be set aside and a new
sentence considered.
[7] In
Karolia
the Supreme Court of appeal was satisfied that the
sentence imposed upon the appellant of correctional supervision was
“startlingly inappropriate and grossly lenient”
(at 93 b) and that a sentence of imprisonment was
“plainly warranted”.
However, the
Supreme Court of Appeal was satisfied that there were
“exceptional
and peculiar circumstances which occurred in this case subsequent to
the imposition of sentence which it would
be proper and just for this
Court to take into account when considering an appropriate sentence”.
(at 93 i). These factors were that the accused had by
the date of appeal, served the sentence imposed upon him by the Court
a quo
and had paid the
sum of R250,000.00 which had been distributed to the minor children
of the deceased, in accordance with the order
of the Court
a
quo
and which was probably irrecoverable.
[8] As regards the
sentence imposed, Mr. Aboobaker submitted that the sentence was
startlingly inappropriate and pointed to what
he regarded as several
misdirections by the Magistrate in imposing the sentence he did. I am
however satisfied that the sentence
imposed by the Court
a quo
was entirely appropriate in all of the circumstances, and that the
Magistrate committed no misdirections in imposing the sentence
that
he did. The present case is consequently on all fours with the
decision in
Jaftha
, the sole issue being whether by virtue of
the delay of seven years since sentence was passed, due regard being
had to evidence
of events which occurred in the interim, exceptional
or peculiar circumstances exist, which justify this Court in
revisiting the
sentence imposed upon the appellant.
[9] Such an enquiry
demands a consideration not only of the reasons for and extent of the
delay, but also the evidence of subsequent
events, relevant to a
reconsideration of the sentence imposed.
[10] An important factor
in considering the cause for the delay is whether the appellant took
any steps to expedite matters. In
the case of
S v Mthembu
2010
(1) SACR 619
(CC) at 621 para 4
the Constitutional Court,
albeit dealing with the case where the applicant sought leave to
appeal against sentence, where he was
for a period of six years
ignorant of the fact that his petition to the Supreme Court of Appeal
had failed, expressed itself in
the following terms:
“
Convicted
persons out on bail pending appeal or application for leave to appeal
are under an obligation to ascertain the outcome
of their appeal
processes and to present themselves to serve their sentences if the
appeal processes fail”.
The Constitutional Court
also remarked as follows at 521 e
“
Different
considerations may conceivably apply when a person is not legally
represented, is indigent and uneducated......”
[11] In my view, these
remarks apply equally to a convicted person who is prejudiced by a
delay in the set down of an appeal against
conviction or sentence. It
ill-behoves such an individual to take no steps to advance the
process, by making enquiries as to the
progress of the matter, or by
requesting details of the set down of the matter from the Criminal
Appeals Registrar at the relevant
High Court or the Director of
Public Prosecutions, in an attempt to minimise the prejudice
suffered, and thereafter to cry foul,
when the application is set
down for hearing, on the basis of prejudice caused by the delay.
[12] Dealing firstly with
the seven year delay and the steps taken by the appellant, in an
attempt to expedite matters. The appellant
alleges that:
[12.1] During 2007 he
instructed attorney Suleman to establish what the status of the
appeal was and what the reason was for the
delay in the set down of
the appeal. Attorney Suleman accordingly visited the Clerk of the
Criminal Court Appeals Section at the
Durban Magistrates’ Court
in the first week of June 2007. Attorney Suleman then telephoned the
Registrar of the Criminal
Appeals Section at the Pietermaritzburg
High Court during the third week of June 2007, and followed this up
with a visit during
the first week of October 2007. He then
telephoned the Criminal Appeals Clerk at the Durban Magistrates’
Court during November
2007, and again telephoned the Criminal Appeals
Registrar at the High Court, on the same day. During the third week
of January
2008 he again visited the Registrar of Criminal Appeals at
the High Court. The appellant states that all of these attempts were
futile, because the file could not be located.
[12.2] During March 2008
Counsel was briefed to do all things necessary to prepare for the
appeal, because notwithstanding that
the file could not be located,
the appellant anticipated it would be set down and attempts would be
made to reconstruct the file.
[12.3] During October
2007 the appellant instructed attorney Suleman to prepare an
application for his re-admission as an attorney.
However, after
meeting with representatives of the KwaZulu-Natal Law Society in
November 2007 he was advised that his re-admission
could not be
considered, until the criminal appeal had been disposed of. The
appellant alleges that the setting down of the criminal
appeal
consequently became even more urgent. These averments are confirmed
in a supporting affidavit by attorney Suleman.
[12.4] During August 2009
the appellant instructed attorney Morgan to prosecute the appeal on
the appellant’s behalf. The
appellant alleges that attorney
Morgan attempted on a least four occasions by way of visits to the
Criminal Appeals Clerk at the
Durban Magistrates’ Court,to
ascertain the status of the appeal and the reasons why the appeal was
being delayed. These efforts
were again futile because the file could
not be located. The visits by attorney Morgan occurred during
December 2009, February
and April 2010. On 04 May 2010, attorney
Morgan wrote to the Criminal Appeals Clerk enclosing the notice and
grounds of appeal
, together with four copies of the record,
requesting these to be forwarded to the High Court and a date for the
hearing to be
obtained. A copy of the letter, together with an
affidavit by attorney Morgan confirming the a foregoing is annexed to
the appellant’s
affidavit.
[13] As pointed out
above, no affidavit has been filed by the respondent dealing with
these allegations, or offering any explanation
for the delay in
setting the appeal down. It is clear however that the appellant did
not sit idly by and took steps to expedite
matters. What this
evidence also reveals is a damning indictment of the administration
of the Criminal Justice system. An inordinate
delay of seven years in
setting down the present appeal is inexcusable, which is aggravated
by the failure of the respondent to
even attempt to explain the
delay, by filing no affidavits in response to the appellant’s
application. Mr. du Toit, who appeared
on behalf of the respondent,
was unable to offer any explanation for the delay, stating that when
he enquired from the Registrar
of the Criminal Appeals section at
this Court, he was told the reason was that the file could not be
located. In the hope that
remedial action may be taken to prevent a
recurrence of such a delay in the set down of criminal appeals, I
intend referring this
matter to the Registrar of the Criminal Appeals
at this Court, as well as the Director of Public Prosecutions for
investigation
and for remedial steps to be taken, to prevent a
recurrence of such a delay in the set down of criminal appeals.
[14]
Turning
now to a consideration of the evidence of events, which have occurred
in the interim, and which the appellant submits are
relevant to a
reconsideration of the sentence imposed upon him.
[14.1] After his
conviction the appellant obtained employment as the manager of C N L
Security CC at a salary of R5,000.00 per month,
where he remained
until the business was sold in August 2008.
[14.2] During 2003 and
before his conviction, the appellant enrolled for an L L M degree at
the University of KwaZulu-Natal which
he completed and graduated in,
in 2009.
[14.3] In 2005 the
appellant enrolled for a Master of Business Administration degree,
with the Management College of South
Africa, which the
appellant has completed, save and except for a dissertation.
[14.4] During 2008 the
appellant enrolled for an L L M degree in taxation with the
University of South Africa and has completed
two-thirds of the course
work required for the degree.
[14.5] Since 2005 he has
been involved in the affairs of the Shree Emprumal Temple of which he
is a member. The Temple is actively
involved in community work as
well as devotional work. The appellant alleges that he is involved in
spiritual study, providing
support to the Priest and assistance in
co-ordinating the spiritual calendar. The appellant offers his
services as a legal advisor
to members of the Temple and any other
person who seeks his assistance. An affidavit by the chairman of the
Temple is annexed in
support of these allegations.
[14.6] Subsequent to the
appellant’s conviction he was divorced and re-married and has a
two and a half year old daughter.
The children born of his first
marriage are now adults and the appellant alleges that he has been
able to support them during their
university studies. The appellant
maintains that the appellant’s present wife, who is a State
Advocate, has provided stability
and direction to his life.
[14.7] The appellant is
presently employed as a consultant with Pele Accounting & Risk
Consultants (Pty) Limited, and maintains
that he has carried out this
work competently and diligently.
[14.8] The appellant
maintains that he has now acquired greater maturity, discipline and
regulation in his life and has gone through
what he refers to as a
“watershed period”
in his life since
his conviction. The appellant maintains that he is no longer the man
that he was and has every intention of repaying
the monies that he
misappropriated. He alleges that he made arrangements with the
Attorneys Fidelity Fund to repay the amount owing
at the rate of
R1,000.00 per month. He states that although he was unable to pay for
a period of time, he has now paid all arrears
and to date has paid
R67,000.00 towards the capital and interest due to the Fund.
[14.9] The appellant
maintains that he understands the error of his ways, believes that he
is fully rehabilitated and that there
is no possibility of his
repeating the indiscretions of the past.
[14.10] The appellant
maintains that the delay in setting down the appeal has been
nerve-wracking and a daily source of stress and
mental anguish.
[15] As regards the
additional requirement referred to in
de
Jager
,
that there should be a
prima facie
likelihood
of the truth of the evidence, in the present case, as in
Jaftha
,
the State did not question the truth of the allegations made by the
appellant. In such a case, as pointed out in E B (at 530 b),
“if
the new evidence is accepted, there is no reason why the matter
should be referred back, as an appeal court can itself
impose an
appropriate sentence, taking into account the new evidence as
happened in
Karolia, Michele
and
Jaftha
”.
If
however
“there is a dispute, or where the State wishes
to challenge the evidence by cross-examination or to lead rebutting
evidence,
different considerations apply”
(E B at
530 c – d). In such an event the Appeal Court may
“set
aside the sentence and remit the matter to the trial court with
directions as to the hearing of further evidence which
the appellant,
the State or the Court might wish to adduce”.
(E B
at 530 e – f).
[16] As regards the
further requirement referred to in
de Jager
,
that the evidence be
“materially relevant”
it
is clear that
“the Appeal Court should only allow the
evidence tendered, if satisfied that there is at least a probability,
not merely a
possibility, that the evidence if accepted, would affect
the outcome –
in casu
, whether the evidence warrants
interference with the sentence”.
(E B at 530 g –
h).
[17] The evidence of the
appellant is not disputed by the State and there is consequently a
prima facie
likelihood
of its truth. In addition, the evidence is materially relevant as it
illustrates totally different circumstances regarding
the appellant’s
personal situation, compared to those which prevailed seven years
ago, to justify interference with the sentence
that was imposed. The
evidence also reveals that the appellant took steps to advance the
set down and hearing of the appeal. A
delay of seven years in the set
down of the appeal is clearly an exceptional circumstance. Due regard
being had to all of the above,
I am satisfied that the evidence
should be admitted and considered by this Court in revisiting the
sentence imposed.
[18] The crime of theft
by an attorney of trust money is an extremely serious offence and as
I have said, the sentence imposed by
the Magistrate of six years’
imprisonment of which three years was suspended, was entirely
appropriate when imposed, some
seven years ago. However, in the light
of the appellant’s evidence that he is fully re-habilitated,
which is not disputed
by the State, I can see no purpose in imposing
a custodial sentence upon the appellant seven years after his
conviction. Mr. du
Toit, fairly and properly conceded that a sentence
of imprisonment, or correctional supervision, in the light of the
undisputed
evidence would not be justified. The sentence to be
imposed however, due regard being had to the seriousness of the
offence, must
still have a punitive and deterrent effect. This
purpose will in my view be achieved if a sentence of six years’
imprisonment
is imposed, the whole of which is suspended on
conditions, including the condition that the appellant repay the
entire amount outstanding
to the Attorneys Fidelity Fund, within the
period of suspension. Mr. du Toit stated that he had established from
the Attorneys
Fidelity Fund, that the appellant had to date repaid
R70,000.00 to the Fund. Mr. Aboobaker advised me that the appellant
would
be able to repay the full amount within a period of two years.
When regard is had to the interest which is payable, payment within
a
period of three years would be more realistic.
I grant the following
order:
The appeal against
sentence succeeds, the
sentence is set aside and
replaced with the following sentence –
“
The
accused is sentenced to six years’ imprisonment all of which is
suspended for a period of three years on the following
conditions:
That the accused is not
convicted of theft, or attempted theft, committed during the period
of suspension and for which the accused
is sentenced to a term of
imprisonment, without the option of a fine and
That the accused pays to
the Attorneys Fidelity Fund, the full amount outstanding, including
interest, within the period of suspension
of the term of
imprisonment”.
This sentence is to take
effect from the date on which this Judgment is delivered.
This Judgment is
referred to the Registrar of Criminal Appeals at this Court, as well
as the Director of Public Prosecutions to
investigate the reasons
for the delay in setting this appeal down, and to furnish to this
Court a report detailing their
findings, as well as
steps to be taken to prevent a recurrence of such a delay in the set
down of criminal appeals, within a period
of thirty days from the
date of this Judgment.
____________
SWAIN J
I agree
____________
HENRIQUES J
Appearances: /
Appearances:
For
the Appellant
:
Mr. T. N. Aboobaker S C with
Mr.
N. Winfred
Instructed
by
:
Abbas,Latib & Company C/o Ayoob Attorneys
Pietermaritzburg
For the Respondents
:
Mr. J du Toit
Instructed
by
:
Director of Public Prosecutions
Pietermaritzburg
Date of Hearing
:
21 June 2012
Date of Filing of
Judgment
:
26 June 2012