Streak v S (CA&R 21/09) [2009] ZANCHC 35 (18 September 2009)

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[2009] ZANCHC 35
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Streak v S (CA&R 21/09) [2009] ZANCHC 35 (18 September 2009)

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IN THE HIGH COURT OF
SOUTH AFRICA
(Northern Cape,
Kimberley)
Case Nr: CA&R
21/09
Case Heard: 31/08/2009
Date
Delivered: 18/09/2009
In the matter between:
CLIVE STREAK
Appellant
and
THE STATE
Respondent
Coram
:
Kgomo JP
et
Mjali AJ
JUDGMENT
KGOMO
JP
[1]
I
have read the judgment of my colleague Mjali AJ and concur therein.
However, I wish to make a few remarks. It is a worrying
feature
which is recurrent when an accused pleads guilty in terms of s112 of
the Criminal Procedure Act and the State signifies
that it accepts
the plea, usually on a lessor charge, that the accused would
subsequently contend that the State or, like in this
case, the
presiding judicial officer was debarred at the sentencing phase from
adducing evidence at variance with the facts set
out in the accused’s
guilty plea. If the State states unequivocally that the facts in the
guilty plea accords with the information
(evidence or documentation)
at its disposal and it has no additional evidence extraneous to the
accused’s statement to present
to the Court in aggravation or
otherwise then the issue between the parties are sufficiently
circumscribed. The State must then
be held to its undertaking on the
facts only.
[2]
However,
if the State merely states that it accepts the plea all that it
conveys to the Court is that it is satisfied that the accused
has
admitted all the elements of the crime with which the accused is
charged or the lesser charge or the competent verdict he or
she has
pleaded guilty to. The State is in effect saying there is now no lis
or dispute between them as far as the verdict is
concerned. It would
not only be wrong but also a sheer waste of time and resources to
flesh out the sometimes skeletal facts set
out by an accused in his
guilty plea when all that remains is the sentencing phase. See
S
v Sparks & Another
1972(3)
SA 396 (A) at 404 C-D where Holmes JA says:
“
In that light, the
words 'trial' 'verdict' and 'the issues to be tried', in their
ordinary meaning, do not refer to any proceedings
after conviction.
In particular, 'verdict' is traditionally understood to refer to the
decision whether the accused is guilty or
not guilty. Indeed, on a
plea of guilty being entered, the 'trial' ends, since there are then
no further issues to be tried in
regard to verdict---. This leaves
the question of sentence, including facts relating thereto,
exclusively within the jurisdiction
of the Judge.”
See
also
S
v B
2003(1) SACR 51 (SCA) at 60e (para 7).
[3]
The
aforegoing view accords fully with the provisions of ss112(2) and (3)
(particularly the latter subsection) of the Criminal Code
which we
need to remind ourselves of.
They
read
:
“
(2)  If
an accused or his legal adviser hands a written statement by the
accused into court, in which the accused sets
out the facts which he
admits and on which he has pleaded guilty, the court may, in lieu of
questioning the accused under
subsection
(1) (
b
)
,
convict the accused on the strength of such statement and sentence
him as provided in the said subsection if the court is satisfied
that
the accused is guilty of the offence to which he has pleaded guilty:
Provided that the court may in its discretion put any
question to the
accused in order to clarify any matter raised in the statement.
(3)  Nothing
in this section shall prevent the prosecutor from presenting evidence
on any aspect of the charge, or the
court from hearing evidence,
including evidence or a statement by or on behalf of the accused,
with regard to sentence, or from
questioning the accused on any
aspect of the case for the purposes of determining an appropriate
sentence.
”
[4]
In
Maroulis
v The State
(240/2008)
[2008] ZASCA 161
(27/11/28), unreported, this issue was
left open but
Mpati
P
,
who wrote the unanimous judgment of the Court, had this to say:
“
[11] Mr Price, who
appeared in this court on behalf of the appellant submitted, as he
did in the court below, that the magistrate
misdirected himself in
certain respects. The first such misdirection, it was argued, was
that the regional magistrate allowed
the prosecutor, after
conviction, to lead evidence in aggravation, which was inconsistent
with the contents of the appellant’s
statement in terms of s 112(2)
of the Act. This inconsistent evidence relates to the assault
described by the complainant after
he had allegedly fallen on the
pavement until he lost consciousness, and the object allegedly used
in the assault. Mr Price submitted
that the prosecutor ought not to
have been allowed to lead such evidence. He referred in this regard
to this court’s decisions
in
S
v Ngubane
1985 (3) SA 677
(A) at 683 D-F and
S
v Legoa
2003 (1) SACR 13
(SCA) paras 26 and 27.
[12] The court a quo
dealt with this submission as follows:
‘
The evidence led by
the state after conviction, in my view, did not contradict the
appellant’s version in any material respect.
The evidence by the
complainant regarding the use of his fists and a brick by the
appellant is in my view not a contradiction
of the version of the
appellant. The appellant stated that he used an object but was not
at all clear as to what it actually was.
His reference to the lid of
a dustbin was vague and he himself expressed uncertainty. The
evidence of the complainant, therefore,
does not contradict the
appellant’s but supplements it and fills in the detail of what
occurred. This is admissible in terms
of the provisions of section
112 (3) of the Act (see S v Swarts
1983 (3) SA 261
(C); S v
Moorcroft
1994 (1) SACR 317
(T)). In any event the magistrate did
not make a specific finding that it was a brick, but accepted, as he
should have, that the
attack was with a blunt object.’
In the view I take of
this matter, I find it unnecessary to enter into this debate.
Suffice it to say that I agree with the last
sentence of the passage
just quoted.
”
[5]
In
my respectful view there is a lot to be said for the views expressed
by the court a quo with reference to what the SCA quoted
in its para
12 of the Maroulis matter. My views are further fortified by what
the Appellate Division stated in
S
v Du Toit
1979(3) SA 846(A) at 857H-858A that:
“Wanneer
die aard van die misdaad en die belang van die gemeenskap oorweeg
word, is die beskuldigde eintlik nog op die agtergrond,
maar wanneer
hy as strafwaardige mens vir oorweging aan die beurt kom, moet die
volle soeklig op sy persoon as geheel, met al sy
fasette, gewerp
word. Sy ouderdom, sy geslag, sy agtergrond, sy geestestoestand toe
hy die misdaad gepleeg het, sy motief, sy vatbaarheid
vir
beïnvloeding en alle relevante faktore moet ondersoek en geweeg
word. En hy word nie met primitiewe wraaksug beskou nie,
maar met
menslikheid en dit is hierdie menslikheid wat in elke geval, hoe erg
ook al, vereis dat versagtende omstandighede ondersoek
moet word.
Hierdie versagtende omstandighede, indien daar is, skep die
genadefaktor waarna in hierdie Hof vantevore verwys is en
wat dan na
oorweging van alle ander relevante omstandighede, moet lei tot 'n
gepaste vonnis.”
[6]
The
State must therefore be vigilant not to render the provisions of
s112(3) of the Criminal Code nugatory or to tie the Court’s
hands
behind its back. One cannot fight rampant crime in this way. When
the State and the defence intends to enter into plea-bargain

proceedings in terms of s105A of the Criminal Code they must go all
the way to the sentencing phase and not stop at the verdict.

Plea-bargaining is a specifically designed plea and sentence
agreement to do justice and expedite the disposal of cases, which

must be encouraged.
MJALI
AJ:
[7] The appellant, a 54
year old farm manager, having been initially charged with attempted
murder in the Regional court, sitting
in Kimberly, on the strength of
a plea of guilty to assault with intent to do grievously harm, was
convicted on his plea and sentenced
to 24 months imprisonment. He now
appeals against the sentence only.
[8] The factual
background is as follows. At the time of the offence (24 August
2006), the appellant was a farm manager at Al Drie
Boerdery in
Ritchie. The complainant, 20 year old Freddy Wolf, was a former
employee at the farm. He had been expelled from the
farm three weeks
prior to the incident. He was then forbidden from re-entering the
farm.
[9] On the day of the
incident the complainant visited the farm to collect his belongings
from his girlfriend who was still staying
on the farm. The appellant
received a message that the complainant was assaulting his girlfriend
and was a nuisance in the workers’
residential quarters.
[10] Being duty-bound to
keep peace and harmony as a farm manager, the appellant proceeded to
where the complainant was and ordered
him to leave the premises. The
complainant complied, but as he was in the process of leaving the
angry appellant kicked him three
times on his shin. The appellant
then twisted his arm in an attempt to force the complainant to climb
onto the van so that he could
convey him off of the farm.
[11] The complainant
broke loose and ran around the workers’ residential quarters. The
appellant fired what appears to be a warning
shot in an attempt to
stop complainant from fleeing. This did not deter the complainant.
The appellant then enlisted the assistance
of two farm workers,
Messrs Moeng and Motloa, to recapture him by chasing after him with
the van. They found the complainant in
one of the fields hiding in
bushes. Ostensibly angered by the fact that the complainant was not
co-operating with him and in an
attempt to force him to climb on the
van as well as to stop him from fleeing, the appellant delivered one
blow with an iron pipe
to his head.
[12] The appellant then
tied a noose with a rope around the complainant’s neck and tied him
to the rails of the van. According
to the appellant the noose was not
so tight such that the complainant would be strangled thereby. The
complainant describes the
rope as thick and made of nylon, similar to
the ones that are used to tow vehicles. The complainant was loaded
onto the van and
was driven to the workers residential quarters to
collect his goods. When the complainant indicated to the appellant
that he wanted
to leave the premises on his own, the appellant drove
behind him to ensure that he was indeed leaving the farm.
[13] The complainant was
seen by a doctor a day after the incident. According to the medical
report the complainant had a lump on
the forehead and some neck
bruises. The doctor further concluded that the lesions observed on
the complainant were not life threatening.
[14] Concerned about the
age of the complainant and some gaps in the plea-explanation, the
Court called the complainant to testify
on the extent of his
injuries. Apart from the injuries mentioned in the medical report,
the complainant suffered injuries to his
fingers, was punched on his
stomach and his private parts were trampled on by Motloa on the
instruction of the appellant.
[15] Contrary to version
of the appellant, the complaint testified that the rope around his
neck was tight and it strangled him.
He testified further that when
the van started moving, Moeng and Motloa pushed him off the van.
[16] Counsel for the
appellant, Ms Erasmus, submitted that the sentence imposed is
shockingly inappropriate and that the magistrate
erred by not
according sufficient weight to appellant’s personal circumstances.
She further submitted that the magistrate erred
in taking into
account evidence outside the plea of the appellant when considering
sentence. I deal with the latter question first.
[17] The evidence of the
complainant was called after the conviction of the appellant on his
guilty plea. It was intended to place
evidence before the court to
impose an appropriate sentence.
Section 274
(1) of the
Criminal
Procedure Act No. 51 of 1977
provides that, “
a
court may, before passing sentence, receive such evidence as it
thinks fit in order to inform itself as to the proper sentence
to be
passed”
[13]
Farlam
JA
in
S
v Rasengani
2006 SACR 431
(SCA) at 437g
stated; “ In my view the Judge should have called one or more of
the psychiatrists who interviewed the appellant so as to obtain

information on the matters I have set out above. That he had the
power to do so appears clearly from
s 274(1)
of Act 51 of 197 which
provides as follows:
“
a
court may, before passing sentence, receive such evidence as it
thinks fit in order to inform itself as to the proper sentence
to be
passed”
In this regard it is
also helpful to call to mind what
Curlewis
JA
said in
R
v Hepworth
1928 AD 265
at 277, viz
“ A criminal trial
is not a game where one side is entitled to claim the benefit of any
omission or mistake made by the other
side, and a judge’s position
in a criminal trial is not merely that of an umpire to see that the
rules of the game are observed
by both sides. A Judge is an
administrator of justice, he is not merely a figure head, he has not
only to direct and control the
proceedings according to recognised
rules of procedure but to see that justice is done”.
See
also
S
v Sanei
2002 (1) SACR 625
(W) at 628 f-i.
[18] In the Rasengani
matter the sentence imposed was set aside and the matter remitted to
the trial court to hear evidence so as
to be able to impose a
sentence which is in accordance with justice. The Sanei and Rasengani
decisions ere applicable in this matter
and as such I am of the view
that the magistrate was entitled to hear any evidence to arrive at an
appropriate sentence in this
matter. He did not commit any
misdirection by having done so.
[19] I come now to the
issue of the harshness of the sentence imposed by the magistrate. It
is a trite principle of our law that
sentencing is within the
discretion of a trial court and a court of appeal may only interfere
in certain limited circumstances.
In
S
v Sadler
2000 (1) SACR 331
(SCA) Marais JA at 334H–335A
stated:
“
The traditional
formulation of the approach to appeals against sentence on the ground
of excessive severity or excessive lenience
where there has been no
misdirection on the part of the court which imposed the sentence is
easy enough to state. It is less easy
to apply. Account must be taken
of the admonition that the imposition of sentence is the prerogative
of the trial court and that
the exercise of its discretion in that
regard is not to be interfered with merely because an appellate Court
would have imposed
a heavier or lighter sentence. At the same time it
has to be recognised that the admonition cannot be taken too
literally and requires
substantial qualification. If it were taken
too literally, it would deprive an appeal against sentence of much of
the social utility
it is intended to have. So it is said that where
there exists a ‘striking’ or ‘startling’ or ‘disturbing’
disparity
between the trial court’s sentence and that which the
appellate Court would have imposed, interference is justified. In
such
situations the trial court’s discretion is regarded
(fictionally, some might cynically say) as having been unreasonably
exercised.”
[20] I am of the view
that the trial court did commit an irregularity in evaluating all the
relevant factors with regard to sentence.
The learned Magistrate
failed to attach sufficient weight to the fact that the appellant at
54 years was regarded as a first offender.
Although it appears from
the case law that a first offender cannot expect as a matter of right
to receive a sentence that does
not involve direct imprisonment, it
is nevertheless a salutary and important principle of punishment
that, wherever possible, a
first offender should not be sent to
prison. See, for example,
S
v Kulati
1975 (1) SA 557
(E) at 559A–560H,
S
v Sakabula
1975 (3) SA 784
(C) at 786H–787H,
S
v Ceylon
1998 (1) SACR 122
(C) at 123j–124b
.
[21] It is true that the
crime committed by the appellant in this case is a serious one. One
certainly cannot take a supine view
of the manner and the
circumstances in which the assault on the complainant was
perpetrated. The complainant was treated in a most
degrading manner.
He found himself at the mercy of the appellant. However, having
regard to the personal circumstances of the appellant,
the question
is whether the magistrate imposed a sentence which appears to be in
accordance with justice or whether the sentence
is such that it calls
for interference.
[22] The community
expects that a serious crime will be punished, but the law enjoins at
the same time that mitigating circumstances
must be taken into
account. For these reasons, I am satisfied that the magistrate did
misdirect himself by not attaching sufficient
weight to the fact that
the appellant is a first offender. This court is accordingly at
liberty to assess sentence afresh and impose
an appropriate sentence.
[23] In my view, this is
a case where the imposition of direct imprisonment should be avoided.
A fine with an alternative term of
imprisonment, coupled with a
suspended sentence as well as an order for a compensatory fine in
favour of complainant in terms of
s300
of the
Criminal Procedure Act
No. 51 of 1977
would, in the circumstances of this case, have been
much more appropriate. The compensation would ameliorate the hurt
feelings
of the complainant, whose civil claim would in any event be
prescribed by now.
[24] We enquired from
appellant’s counsel whether the appellant, who was present in court
with his attorney, would be able to
pay a fine of R10 000,00
(ten thousand rand) and a compensatory fine of R5000,00 (five
thousand rand) in favour of the complainant.
This was confirmed.
Appellant’s attorneys volunteered that the compensation be paid
into their trust account for remittance to
the complainant. State
counsel signified that the State had no objection to this sentence
option being exercised by the Court.
This approach has obviated the
remittal of the case to the Magistrate to inquire into the
appellant’s ability to make payment,
alternatively for the adducing
of such evidence before us, which an appeal court is authorised to
do.
[25] In the result the
appeal is upheld and the sentence of two years imprisonment imposed
on the appellant is set aside and substituted
with the following.
1. The appellant is
sentenced to pay a fine of R10 000 or in default of payment to
serve one year to imprisonment and a further
one year imprisonment
which is suspended for a period of 5 years on the following
conditions:
1.1 That the appellant
is not convicted of an offence involving violence to the person of
another which is committed during the
period of suspension;
That the appellant is
to pay an amount of R5000,00 (five thousand rand) as compensation
to the complainant, Mr Freddy Wolf,
in terms of
section 300
of the
Criminal Procedure Act No. 51 of 1977
within 10 (ten) days of this
order. This amount is to be paid into the trust account of
Engelsman Magabane Incorporated, the
appellant’s attorneys, who
will pay it over to the complainant and submit proof thereof to the
registrar of this court.
2. The R 10 000-00 fine
is deferred to 16 October 2009.
________________________
G
N Z MJALI
ACTING
JUDGE
NORTHERN
CAPE DIVISION
I concur.
________________________
F
DIALE KGOMO
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION
On
behalf of the Appellant: Adv. S.L Erasmus
On
behalf of the Respondent: Adv K. M Kgatwe
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