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[2009] ZAFSHC 82
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Minister of Safety and Security v Lupacchini and Others (A217/2008) [2009] ZAFSHC 82 (3 September 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A217/2008
In the appeal between:
MINISTER OF SAFETY
AND SECURITY
Appellant
and
GABRIELLE
LUPACCHINI
1
st
Respondent
ROCHELLE CONRADIE
2
nd
Respondent
LUIGI DAVIDE
GABRIELLE LUPACCHINI
3
rd
Respondent
_____________________________________________________
CORAM:
VAN DER MERWE, J
et
VAN ZYL, J
et
CLAASEN,
AJ
_____________________________________________________
JUDGMENT:
VAN DER MERWE, J
HEARD ON:
3 AUGUST 2009
_____________________________________________________
DELIVERED ON:
3 SEPTEMBER 2009
_____________________________________________________
[1] This appeal concerns
the interpretation of section 6(1) of the Trust Property Control Act,
no 57 of 1988 (“the Act”), which
provides as follows:
“
Any person whose appointment as
trustee in terms of a trust instrument, section 7 or a court order
comes into force after the commencement
of this Act, shall act in
that capacity only if authorized thereto in writing by the Master.”
The crisp question for
decision is whether section 6(1) of the Act prohibits the institution
of legal proceedings on behalf of
a trust by a person acting in the
capacity of trustee without having received the written authorization
of the Master.
[2] The Lupacchini Family
Trust (“the trust”) was created by trust deed signed by all
concerned on 29 September 1994. In terms
of the trust deed there was
both a founder and patron (beskermheer) of the trust. The founder of
the trust was one L R Preller
and the patron thereof is the third
respondent. Both the capital and income beneficiaries of the trust
are the children, born
and unborn, of the third respondent. The
trust deed provides that there shall at all times be no less than two
trustees but not
more than six trustees.
[3] The first trustees of
the trust were the first respondent and Melinda Lupacchini, who were
authorised to act in their capacities
as trustees of the trust in
terms of section 6(1) of the Act on 4 October 1994. However, by
letter dated 24 June 2003, Melinda
Lupacchini resigned as trustee of
the trust. On 13 November 2003 and/or 20 November 2003 the second
respondent was appointed as
trustee in place of Melinda Lupacchini,
with immediate effect and the second respondent thereafter at all
times relevant hereto
acted as duly appointed trustee of the trust.
[4] On 24 August 2004 the
present action was instituted and on 26 August 2004 the combined
summons was served on the appellant.
The particulars of claim
contain three claims. The second and third claims are instituted by
the third respondent and are not
relevant to the appeal. Although
Melinda Lupacchini was initially mistakenly cited as plaintiff in the
action, it is clear that
the first claim contained in the particulars
claim is one instituted by the first and second respondents in their
capacities as
trustees of the trust. The first and second
respondents do not rely on any provision allowing departure from the
fundamental rule
of trust law that all trustees must act jointly.
[5] The said claim
instituted by the trust is a rather convoluted one. I perceive its
essential elements to be the following.
The trust was the owner of a
night club by the name of Reds. On 29 August 2003 members of the
South African Police Service acting
in the execution and within the
scope of their employment with the appellant, executed a police raid
at the premises of the night
club. During this raid
inter
alia
customers of Reds were searched and/or taken away for interrogation.
Also an alleged notorious drug smuggler was arrested. The
raid was
filmed and later broadcast on national television. It was also
reported on in several reports in the local press. A
similar raid
took place on or about 31 October 2003. According to the particulars
of claim both the raids and accompanying conduct
were executed with
the intent of prejudicing Reds in its business as a night club,
alternatively constituted negligent conduct
of the appellant’s
employees contrary to a legal duty that had the effect of prejudicing
the business of the night club. It
is alleged that as a result
hereof the night club had to be closed as a result of which the trust
suffered damages consisting of
loss of profits in the amount R2 994
756,71.
[6] Importantly however,
a letter of authority authorising the second respondent to act as
trustee of the trust was only issued
by the Master in terms of
section 6(1) of the Act on 15
th
December 2004. This led to a special plea by the appellant and to
the argument referred to below.
[7] The parties prepared
a special case for adjudication by the court in terms of rule 33(1).
The concluding paragraphs of the
special case read as follows:
“
C.
THE
PARTIES’ CONTENTIONS:
The Plaintiff contends that:
7.1 although a letter of authority
appointing Second Plaintiff as trustee had not been issued by the
Master prior to issue of summons
on 24 August 2004, Second Plaintiff
had, prior to 24 August 2004, been duly appointed as trustee in terms
of and in pursuance of
the provisions and objectives of the Trust
Deed and Trust, and therefore:
7.2 the Trust had at all times
relevant to the action the necessary
locus
standi in iudicio.
8.
The Defendant contends that, due to
the fact that the Second Plaintiff was only authorised by the Master
as a trustee on 14 December
2004:
8.1 no valid resolution by the
trustees of the Trust could, alternatively had been taken to
institute such action;
8.2 that no action could have been
instituted for and on behalf of the Trust.
9.
The Honourable Court is therefore
requested to decide whether:
9.1 the action for damages allegedly
suffered by the Lupacchini Family Trust could have been instituted
in, as it was, August 2004;
9.2 the First and Second Plaintiff’s
action can be entertained.
10.
The parties agree that:
10.1 if the Court decides in the
Defendant’s favour, the Defendant’s Special Plea should be upheld
and the action on behalf
of the Trust should be dismissed with costs,
including the costs of two counsel;
10.2 if the Court decides in the
Plaintiff’s favour, the Defendant’s Special Plea should be
dismissed with costs, including
the costs of two counsel.”
[8] Relying heavily on
the judgment in
WATT
v SEAPLANT PRODUCTS LIMITED AND OTHERS
[1998] 4 ALL SA 109
(C), the trial court found for the respondents
and ordered that the special plea be dismissed with costs, including
the costs of
two counsel. The appeal is with its leave.
[9] It is clear that the
Act distinguishes between the appointment of a trustee and his/her
authorization in terms of section 6(1).
It is trite that a trustee
is appointed in terms of the trust instrument and in exceptional
cases by the Master or Court as provided
for in the Act. At the
hearing before us counsel for the appellant argued, in the
alternative to the contention contained in the
special case quoted
above, that the second respondent was also or in any event not
properly appointed as trustee in terms of the
provisions of the trust
deed. I doubt very much whether on the formulation of the special
case by the parties, this argument is
open to the appellant. In view
of the conclusion that I have reached, it is however unnecessary to
deal with this further. I
accept without deciding that the second
respondent was duly appointed as trustee of the trust on 13 November
2003 and/or 20 November
2003.
[10] It follows that the
appeal will be decided on the basis that the claim of the trust was
instituted by its required minimum
number of two trustees, both of
whom had been properly appointed but only one of whom at the time was
authorised to act in terms
of section 6(1) of the Act.
[11] In
SIMPLEX
(PTY) LTD v VAN MERWE AND OTHERS NNO
1996 (1) SA 111
(W), Goldblatt J held that a contract concluded by
trustees prior to the receipt of the written authority of the Master
referred
to in section 6(1) of the Act, is
ab
initio void
and incapable of ratification. This judgment therefore lays down
that non-compliance with the provisions of section 6(1) of the
Act is
visited with nullity. This judgment was followed by Griesel J in
VAN
DER MERWE v VAN DER MERWE EN ANDERE
2000 (2) SA 519
(C), wherein he also disagreed with the view that an
act committed without authority in terms of section 6(1) of the Act
can be
retrospectively validated by a court, expressed in
KROPMAN
AND OTHERS NNO v NYSSCHEN
1999 (2) SA 567
(T). See also
M
J DE WAAL
,
“Authorisation of Trustees in terms of the Trust Property Control
Act”
2000 (63) THRHR, 472
to 478.
[12] It is clear that the
special case was premised on acceptance of the correctness of the two
Van der Merwe decisions. This was
confirmed by both counsel during
argument. The question whether these decisions were correctly
decided does therefore not arise
in this matter.
[13] The question then is
what the ambit of section 6(1) of the Act is, in other words what
exactly is prohibited thereby. This
must of course be established by
interpretation in terms of accepted principles of interpretation of
statutes. In this regard
I refer to the seminal and oft-quoted
exposition of Schreiner JA in
JAGA
v DöNGES, NO AND ANOTHER
;
BHANA
v DöNGES NO AND ANOTHER
1950 (4) SA 662G
– 664 H. See for instance
ARMSTRONG
v SEHADEW OREE t/a OREE’S CARTAGE AND PLANT HIRE
2004 (3) SA 152
(SCA) at 58J – 159A and
BATO
STAR FISHING (PTY) LTD v MINISTER OF ENVIRONMENTAL AFFAIRS AND OTHERS
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at 526G – 527I. In terms hereof the ordinary
or normal meaning of the words in the context in which they were
used, must
be established. The context is not limited to the
language of the rest of the statute but includes the matter of the
statute,
its apparent scope and purpose and within limits, its
background.
[14] To my mind, the
words used in section 6(1) are unambiguous and their normal
grammatical meaning is clear, namely that a person
appointed as
trustee after the commencement of the Act, shall not act in that
capacity at all unless authorised thereto in writing
by the Master.
[15] The Act provides for
a supervisory scheme in respect of trusts that includes very wide
powers to the Master. See for instance
sections 6(4), 7(2), 10, 11,
16, 19 and 20 of the Act. For present purposes “trustee” is
defined in the Act as any person
who acts as trustee by virtue of an
authorisation under section 6. It follows that the supervisory
scheme of the Act only applies
to acts for which authorisation in
terms of section 6(1) are required. In
SIMPLEX
(PTY) LTD v VAN DER MERWE AND OTHERS NNO,
supra
it was stated that section 6(1) of the Act is not only aimed at the
benefit of the beneficiaries of a trust but also in the public

interest. I prefer to express no opinion on whether or to what
extent the object of the Act is to protect outsiders to a trust.

However, even if it is accepted that the object of section 6(1) is
only the protection and benefit of beneficiaries, the context
as
described above, in my judgment indicates that the meaning of section
6(1) cannot be limited to require authorisation and therefore

supervision in terms of the Act for contractual acts only and not for
instance for litigation on behalf of the trust, as the respondents

contended. This may be illustrated by the following: A right to
claim (vorderingsreg) of a trust clearly forms part of the trust

estate. It is a reality that ill-conceived litigation may be ruinous
not only in respect of costs but also in respect of the subject

matter of the litigation. On the interpretation of the respondents a
trustee who has not been authorised in terms section 6(1)
could
validly deal with and expose trust assets by the institution, defence
and prosecution to completion of legal proceedings,
including
appeals, but a contract by that trustee to purchase a paper or a pen
or to compromise a claim that is the subject of
pending litigation,
would be invalid and of no force and effect.
[16] The same result is
obtained by consideration of section 9 of the Act. Section 9(1)
provides that a trustee (as defined, that
is one that had been
authorised in terms of section 6(1)) shall in the performance of his
duties and the exercise of his power
act with the care, diligence and
skill which can reasonably be expected of a person who manages the
affairs of another. Section
9(2) provides that any provision
contained in a trust instrument shall be void insofar as it would
have the effect of exempting
a trustee from or indemnifying him
against liability for breach of trust where he fails to show the
degree of care, diligence and
skill as required in section 9(1). The
trust deed in question provides for several duties and powers of the
trustees of that are
not of a contractual nature. These include for
instance the duty to provide yearly financial statements of the trust
that comply
with requirements set out in the trust deed, the power to
institute, defend and prosecute legal proceedings and the power to
decide
what portion of the yearly income of the trust should be added
to the trust fund and what portion thereof should be utilised for
the
maintenance, education etc. of the beneficiaries. Again, on the
respondents’ interpretation, the execution of these powers
and
duties would not be subject to the requirements of section 9 of the
Act. Could that be the meaning of section 6(1)? I think
not.
[17] It was suggested
that the interpretation that section 6(1) of the Act requires prior
authorisation for all acts performed in
the capacity of trustee,
could lead to unintended results such as that a trustee may not be
able to institute urgent legal proceedings
for the benefit of the
trust because of lack of authorisation. In my view there is no
reason why the authorisation of the Master
in terms of section 6(1)
may not be obtained expeditiously or on urgent basis. In terms of
section 6(2) the Master may even where
the furnishing of security is
required, pending the furnishing of security authorise a trustee in
writing to perform specified
acts with regard to trust property. But
mainly the argument must fail because the same applies to contractual
situations. A contract
that would have been most beneficial to a
trust and its beneficiaries may be lost because the trustees did not
or could not timeously
obtain authorisation in terms of section 6(1).
[18] In his lucid
judgment in
LAND
AND AGRICULTURAL BANK OF SOUTH AFRICA v PARKER AND OTHERS
2005 (2) SA 77
(SCA), Cameron JA reiterated that a trust such as the
one in question is not a legal person but an accumulation of assets
and liabilities
that vest in its trustees. Therefore the trust can
only act through its trustees. Cameron JA then pointed out that a
provision
in a trust deed requiring that a specified minimum number
of trustees must hold office is a “capacity-defining condition”.

Therefore, when fewer trustees than the number specified are in
office, the trust suffers from an incapacity that precludes action
on
its behalf. It is clear from the judgment that because the trust in
question did not have the number of trustees required by
its trust
deed, the trust had neither the capacity to act nor the capacity to
litigate. See paras 10 – 14 and 39 – 46 of the
judgment. In my
judgment, section 6(1) of the Act is also capacity-defining in the
sense that it provides capacity to act. For
the reasons mentioned, I
find no basis for distinguishing in section 6(1) of the Act between
capacity to act and capacity to litigate.
[19] This brings me to
the judgment of Conradie J, as he then was, in
WATT
v SEA PLANT PRODUCTS LIMITED AND OTHERS
,
supra
.
The salient facts in this matter were that although the second and
third defendants were appointed trustees of a trust on 19
June 1991
and 21 March 1994 respectively, they obtained letters of authority in
terms of section 6(1) of the Act only on 23 August
1996. The summons
in which the second and third defendants were sued in their
capacities of trustees of the trust was however
issued before 23
August 1996. This led to what was described by Conradie J as a
“devilish little point” on behalf of the second
and third
defendants, namely that at the time of issue of the summons against
them the second and third defendants lacked
locus
standi in iudicio
as they had not by then been authorised by the Master to act as
trustees of the trust.
[20] In interpreting
section 6(1) of the Act Conradie J said the following:
“
In my view the prohibitory phrase
‘… shall act in that capacity only if authorised thereto …’,
wide as it is, must be interpreted
to mean that a trustee may not,
prior to authorisation, acquire rights for, or contractually incur
liabilities on behalf of, the
trust. I do not, for the reasons which
I shall discuss shortly, believe that the legislature intended with a
provision of this
kind to regulate questions of
locus
standi in
iudicio
.”
What follows in the
judgment after this quoted passage can for convenience of dealing
therewith be summarised in the following
four paragraphs.
[21] First, it was stated
that in entering appearance to defend the action the second and third
defendants incurred no contractual
liability on behalf of the trust
save possibly for the payment of the fees of their attorneys. It was
further stated that the
trust incurred no contractual liability for
costs to the plaintiff nor even potential liability for costs, on the
basis that if
the second and third defendants were not authorised to
conduct the litigation they would incur personal liability for any
adverse
costs order.
[22] Second, it was
stated that
locus
standi in
iudicio
and contractual power are not identical concepts, as was recognised
by Goldblatt J in
SIMPLEX
(PTY) LTD v VAN DER MERWE AND OTHERS NNO
,
supra.
It was
added that
locus
standi in iudicio
is an access mechanism controlled by the court that is not dependent
on authority to act. It was further stated that
locus
standi in iudicio
depends on whether the litigant is regarded by the court as having a
sufficiently close interest in the litigation as described
in
JACOBS
EN ‘N ANDER v WAKS EN ANDERE
[1991] ZASCA 152
;
1992 (1) SA 521
(AD) at 533J – 534A. The judgment then continues
by saying that therefore the question to be posed is whether at the
time summons
was issued the trustees’ interest in the trust was too
remote. It was then stated that where a trustee has been appointed,
the
appointment is not void pending authorisation by the Master in
terms of section 6(1) of the Act and that although the trustee’s

power to act in that capacity is suspended by section 6(1) of the
Act, he/she would have a sufficiently well defined and close
interest
in the administration of the trust to have
locus
standi in iudicio
.
[23] Third, the judgment
dealt with the decision of
KRUGER
v BOTHA NO
1949 (3) SA 1147
(O), relied upon by counsel for the second and third
defendants. In this case a
curator
bonis
raised a special defence that he had no
locus
standi
to be sued since he had not furnished the security required by the
Administration of Estates Act, no 24 of 1913. Conradie J however

held that the true defence of the defendant in that case was that he
could not be compelled to perform the contract entered into
by the
patient before he was declared incapable of managing his own affairs,
in other words the plaintiff had no cause of action
against him.
Conradie J held that the defendant incorrectly took the point that he
had no
locus
standi
to be sued and that the court was influenced by this incorrect
characterisation of defence to conclude that the defendant had no
locus
standi
.
Conradie J therefore declined to regard the decision in
KRUGER
v BOTHA
,
supra
as a valuable precedent.
[24] Fourth, the judgment
on this aspect of the case concluded as follows:
“
Any conclusion that the second and
third defendants were by section 6(1) of the Act deprived of
locus
standi in iudicio
(which
would mean not only that they could not be sued but also that they
could not approach the court to protect the interest
of the trust)
would not give effect to the intention to legislature. Whilst
recognising the desire of the legislature to regulate
the rights and
duties of trustees in the Act, one should, I think, be slow to
conclude that it would have desired to accomplish
this by controlling
their access to, or accountability in, a court of law.
The focus of the legislation, after
all, is on what trustees should or should not do; it is not on
whether they may or may not be
sued.”
[25] Whether in that
instance the trust in fact incurred contractual liability for costs
or otherwise, is with respect irrelevant
to the construction of
section 6(1) of the Act. The reference to contractual liability to
their attorneys does however illustrate
the difficulty with this
interpretation; the contract between the defendants and their
attorney would be void but not the act of
defending the action on
behalf of the trust without authorization in terms of section 6(1).
It is also with respect wrong to say
that the trust did not even
incur potential liability for costs of the action. On Conradie J’s
construction of section 6(1)
the action was validly defended on
behalf of the trust and the trust would be liable for costs awarded
against the defendants.
[26] The term
locus
standi in iudicio
is properly used in two senses. In its primary sense it refers to
the capacity to litigate, that is the capacity to sue or to
be sued
at all. Capacity to litigate is of course not the same as the
capacity to act (“handelingsbevoegdheid”) but there
is usually a
close correlation between them. In its secondary sense the term
locus
standi in iudicio
deals with whether a person has a sufficient interest in the subject
matter of the case to be allowed to bring or defend the claim.
See
Harms,
Civil
Procedure in the Supreme Court,
A47-A48 and Boberg,
Law
of Persons and the Family
,
2
nd
Edition, p. 896 - 897.
[27] The judgment in
WATT
v SEA PLANT PRODUCTS LIMITED AND ANOTHER,
supra
deals only with
locus
standi in iudicio
in the secondary sense thereof. In my judgment however, the real
question was whether a trust of which the trustee or trustees
have
not been authorised to act as such in terms of section 6(1) of the
Act, has
locus
standi in iudicio
in the primary sense thereof, namely whether it has capacity to
litigate at all. In this regard the judgment in
KRUGER
v BOTHA NO
,
supra
in my view indeed provides a valuable precedent.
[28] In
KRUGER
v BOTHA NO
,
supra
a
Full Bench of this division (Horwitz and Brink JJ) dealt with a claim
against a
curator
bonis
of a patient, based on a contract entered into between the plaintiff
and the patient. To this claim the
curator
bonis
pleaded specially that because he had not provided security in terms
of section 82(1) of Act 24 of 1913 for administering the affairs
of
the patient, he had no
locus
standi
to
be sued on behalf of the patient. To this plea the plaintiff
excepted on the basis that it did not disclose a defence. The
court
dealt extensively with the common law in this regard and concluded
that where a
curator
bonis
that had an obligation to provide security for the administration of
the affairs of a minor or a patient did not provide security,
his
conduct in the administration of the estate of the minor or patient
is null and void and not binding on the minor or patient.
In the
construction of the said section 82(1) of Act 24 of 1913 the court
referred to the presumption that the legislature does
not intend to
vary existing law more than necessary and concluded as follows on
1153:
“
As dit dus juis is dat volgens die
gemene reg ‘n
kurator
nie in sy sodanige hoedanigheid in die administrasie van die goed van
‘n pasiënt kan optree alvorens hy die vereiste sekuriteit

verskaf het nie, dan, met die toepassing van die genoemde vermoede,
moet dit volg dat die verskaffing van sekuriteit onder artikel
82(1)
‘n voorvereiste is om die aangestelde persoon
locus
standi in iudicio
te gee om
die pasiënt in ‘n regsgeding te verteenwoordig.”
In my judgement this
means that the defendant
curator
had neither the capacity to act nor the capacity to litigate and
therefore did not have
locus
stand in iudicio,
even though he may have had a sufficient interest in the matter.
[29] When Goldblatt J in
SIMPLEX
(PTY) LTD v VAN DER MERWE AND OTHERS NNO
,
supra
at 114F – G referred to the distinction between
locus
standi in iudicio
and contractual capacity, he did so in a different context. The
question there dealt with was not for which acts authorization
in
terms of section 6(1) of the Act are required, but what the
consequences are where an act for which authorization is indeed

required, is performed without that authorization. It is in this
context that Goldblatt J found the cases mentioned there to be

distinguishable.
[30] For reasons already
stated, I respectfully disagree with the passage quoted in para 24
above. It follows that I also disagree
with the approval of the
WATT
-case
in
Honore’s
South African Law of Trusts, 5
th
Edition
by Cameron
et
al
, at
221. It may perhaps be pointed out that the support for this
judgment in this respected work on page 270 and 419 thereof appears

to be less emphatic.
[31] Much as I respect
the views of as eminent a judge as Conradie JA and much as I dislike
the result of the appeal, I am unable
to agree with the trial court.
To sum up: In order for the trust to have had the capacity to
litigate, the common law required
that both the trustees of the trust
had to act jointly and section 6(1) of the Act required that both
these trustees had to be
authorised in writing by the Master to act
in the capacity of trustee. As one of the trustees did not meet the
last-mentioned
requirement, the trial court should in my view have
found for the appellant.
[31] The following orders
are issued:
1. The appeal succeeds
with costs.
2. The orders of the
trial court are set aside and replaced with the following:
“
The defendant’s
special plea is upheld and the action on behalf of the trust is
dismissed with costs, including the costs of two
counsel.”
________________________
C. H. G. VAN DER
MERWE, J
I concur.
_________________
C. VAN ZYL, J
I concur.
________________
J. Y. CLAASEN, AJ
On behalf of the
appellant: Adv. M.H. Wessels SC
Instructed
by:
State
Attorney
BLOEMFONTEIN
On behalf of the
respondents: Adv. A. J. R. van Rhyn SC
with
Adv. M. D. J. Steenkamp
Instructed
by:
Kramer
Weihmann & Joubert
BLOEMFONTEIN
/em
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No.: 435/2009
In the case between:
THE STATE
and
AGNES PHOTYO
CORAM:
H. M. MUSI, JP
et
LEKALE,
AJ
_______________________________________________________
JUDGEMENT:
LEKALE, AJ
_______________________________________________________
DELIVERED
ON:
_______________________________________________________
[1] The matter came
before me by way of an automatic review in terms of section 302 read
with section 304 of the Criminal Procedure
Act nr 51 of 1977 (‘the
act”).
[2] The
accused, 17 year old young woman going into a 18 years of age at the
time of the trial, was convicted of assault with intent
to do
grievous bodily harm and sentenced to 12 months imprisonment
conditionally and wholly suspended for 4 years by the magistrate’s

court at Koffiefontein on the 15
th
June 2009.
[3] At the time of the
commission of the relevant crime on the 12 October 2008 the accused
was serving a six months imprisonment
sentence conditionally and
wholly suspended for 4 years for a similar offence committed on the 6
January 2008. The said suspended
prison sentence was imposed on the
16 April 2008.
[4] A reading of the
record revealed that the accused had, initially, pleaded guilty to
the charge but the presiding magistrate
entered a plea of not guilty
after it became clear that the accused was, effectively, raising
self-defence as justification for
her conduct.
[5] I found
it both strange and curious that a further suspended sentence was
imposed, without further ado, in the circumstances
of the matter and
directed a query to,
inter
alia
,
that affect. The magistrate has since responded and I am both
thankful and grateful to him therefore.
[6] The salient facts
apparent from the record are that:
6.1 The accused did not
testify either in her defence or in mitigation of sentence;
6.2 The undisputed
evidence of the complainant was that the accused stabbed her in the
face with a piece of broken beer bottle after
a physical altercation
between them over spilled beer. The stabbing took place at a time
the complainant was already on her way
moving away from the tavern;
6.3 In mitigation of
sentence the accused’s husband testified that she, the accused, is
a bit naughty;
6.4 A pre-sentencing
report was secured after the accused’s previously convictions
secured and presented to the magistrate;
6.5 The accused’s
record of previous convictions was not available to the probation
officer at the time of preparing the report
although it was disclosed
that the accused was, in the past, once assist by a social worker;
6.6 The probation officer
recommended a suspended sentence in her report which was admitted
with a consent of both the prosecutor
and the accused;
6.7 In determining the
sentence to be imposed the magistrate warned the accused that:
“
Jy moet aanvaar dat as jy nou
weer ‘n opgeskorte vonnis kry sou dit heel moontlik die laaste een
wees want as jy nou weer voorkom
glo ek …. gaan jy met twee vorige
veroordelings teen jou sit en jy gaan swaar gestraf word.”
[7] In
response to the query the magistrate painstakingly explained,
inter
alia
,
that:
7.1 He requested a
pre-sentencing report because the accused is a minor and
“
It is not easy these days for a
normal criminal court to sentence minors that come in conflict of the
law. Although minors are
committing hideous crimes and become more
violent every day or year it is expected of the courts to be careful
how your sentence
the young perpetrators…I treat the social workers
as professionals and although the court is not bound by their
recommendation
it carries a lot of weight.
In this instance the report
recommended a suspended sentence and the State echoed these
sentiments. The court then decided to lean
backwards and impose
another suspended sentence.”;
“
2. The accused was assessed by a
probation officer once in the past already. The probation officer
knows that she had been in conflict
with the law in the past. I am
of the opinion that knowledge of a previous conviction would not have
changed the recommendation
of the probation officer at all.”;
“
3. … with respect, I am of the
opinion that the fact that the accused is still serving a wholly
suspended sentence would also
not have affected the officer’s
recommendation. What other options are there? The accused cannot
pay a fine. She cannot really
be sent to jail. To caution and
discharge her would not be appropriate under the circumstances and I
felt that correctional supervision
was not an option as well.
4. Correctional supervision was not
considered as it is a form of jail sentence. To sentence a child to
correctional supervision
is inhuman. To confine a child to his house
for a few months and deny him/her the freedom of playing sport, going
to school functions,
interact with friends and the like is cruel.
There are a view things that disqualify the accused for correctional
supervision.
She is still a minor, but does not go to school any
more. Her parents are separated. … She does not work … and is
dependant
on her mother. The mother or the father was not present
when she was sentenced. Here is no probation officer in
Koffiefontein
and we have to rely on a probation officer from a
nearby town. She received a suspended sentence a year before this
crime was
committed and she was not deterred by the conditions of the
suspended sentence. The guardian said the accused is a naughty
child.
To think that this child will stay at home while her mother
is at work is expecting to much.”
[8] From the aforegoing
it became, immediately, very vivid in my mind that the magistrate’s
point of departure was that he had
to respect the presentencing
report as well as the agreement between the parties viz the
prosecutor and the accused in accepting
the report. Although his
quick to point out that he was not bound by the probation officer’s
recommendations, his submission
that
“
the court then decided to lean
backwards and impose another suspended sentence”
suggest otherwise.
[9] The aforegoing
feeling on my party is, further, buttressed by the fact that, in his
response to the query, the magistrate points
out that the accused was
not deterred by the conditions of the previous suspended sentence and
this fact was clearly before him
when he imposed the sentence herein
insofar as he warned the accused about the possible consequences of
her further conviction
in the light of both sentences.
[10] It is
correct, as effectively pointed out, by the magistrate, that the
recommendation of the pre-sentence report is not binding
on the court
and that the decision was supposed to be his as was pointed out in
S
v Lewis
1986 (2) PHH 96 (A) and
S
v H
1978 (4) SA 385
(B) at page 386 D – E. The court has to analise
the presentencing report carefully and particularly and may not
simply follow
the recommendations set out therein.
[11] In
S
v Lister
1993 (2) SACR 228
(A) at 232H the court observed as follows in
relation to a similar report by a physiatrist:
“…
the approach of
a sentencing officer is not the same as that of a psychiatrist. The
sentencing officer takes account of all the
recognised aims of
sentencing including retribution; the psychiatrist is concerned with
diagnosis and rehabilitation.”
[12] In
casu
the only reasonable inference to draw, in my view, from the record
and the magistrate’s reasons is that he accepted the report
as a
matter of cause and felt bound, consciously or inadvertently, to do
so because the prosecutor and the accused agreed to its
admission
into the proceedings. He followed it despite it being clear
ex
facie
the same that the reporter was not aware of the accused’s previous
conviction as well as the fact that she had already been afforded
an
opportunity to benefit from a non-custodial sentence in form of a
suspended sentence on the same conditions and for similar
crime. It
is, thus, probable that the magistrate did not analise the report
critically.
[13] It is,
further, disturbing in my view that the magistrate, in his response,
opines that the aforegoing fact will not have effected
the officers
recommendation. Even in the alikely event that such a fact would not
have affected the proffesional recommendation
of the reporter, it was
still in my view, the duty of the magistrate to bring it pertinently
to her attention in order for him
to benefit from the correct and
reliable assistence from the expert that the reporter was. As
Kriegler J observed in
S
v M
1991 (1) SACR 91
(T) at 100A-B:
“…
the wise
judicial officer does not lightly reject expert evidence on matters
falling within the purview of the expert witness's
field. The
judicial process is difficult enough.”
In my view for such
expert evidence to be beneficial to the judicial officer it has to be
based on the correct and full facts.
[14] The magistrate,
further, contends that there was no other options available and
admits that correctional supervision was not
considered as it is a
form of jail centence. The aforegoing clearly looses site of the
fact
_________________
L. J. LEKALE, AJ
I concur.
________________
J. JORDAAN, J
/em