Moss v S (CA & R 67/09) [2009] ZANCHC 57 (13 November 2009)

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[2009] ZANCHC 57
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Moss v S (CA & R 67/09) [2009] ZANCHC 57 (13 November 2009)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape, Kimberley)
Case
Nr: CA & R 67/09
Case
Heard: 09/11/2009
Date
Delivered: 13/11/2009
In
the matter:
ABEL MOSS
Appellant
versus
THE
STATE Respondent
Coram:
Kgomo JP
et
Mjali AJ
JUDGMENT ON
APPEAL
KGOMO
JP:
This
appeal, which is against sentence only, is devoid of any merit and
only serve to further clog up the already overladen rolls.
The
Magistrate Kakamas, Mr Morolong, instead of committing the appellant
to the Regional Court in terms of s116 of the Criminal
Procedure
Act, 51 of 1977 (“the CPA”), to impose a sentence which would
undoubtedly have exceeded the three-year maximum
punitive
jurisdiction of that court, inexplicably merely exhausted its
jurisdiction by sentencing him to three years imprisonment.
This
section, to refresh faded memories, provides that:
“
116. Committal
of accused for sentence by regional court after trial in magistrates
court. –
(1) If a
magistrate’s court, after conviction following on a plea of not
guilty but before sentence, is of the opinion –
(a) that
the offence in respect of which the accused has been convicted is of
such a nature or magnitude that it merits punishment
in excess of the
jurisdiction of a magistrate’s court;
(b) that the
previous convictions of the accused are such that the offence in
respect of which the accused has been convicted merits
punishment in
excess of the jurisdiction of a magistrate’s court; or
(c) that
the accused is a person referred to in section 286A(1),
the
court shall stop the proceedings and commit the accused for sentence
by a regional court having jurisdiction.”
When
the appellant belatedly applied for leave to appeal, condonation for
the belatedness having been granted, Mr Morolong was
not available
to hear
the
application. It fell to Magistrate Ms Annenè Du Toit to hear
the leave to appeal which she granted on these grounds
(translated):
“
I
have considered the grounds of appeal as set out in your Notice for
Leave to Appeal. I grant the application on all the grounds
(three
grounds) tabulated in the Notice marked Exhibit E. These are your
personal circumstances; the fact that the complainant
has recovered
the bulk of her stolen property; the element of deterrence and
retribution and the fact that the [sentencing Magistrate]
found that
a sentence of direct imprisonment is the only appropriate sentence in
the circumstances. The Court has also not considered
alternative
options to imprisonment.”
The
appellant was born on 16 April 1968 at Augrabies (Upington),
Northern Cape. He was 40 years old when he was sentenced on
26
August 2008 to three years imprisonment. During his life time he
accumulated an impressive catalogue of previous convictions

stretching from December 1980, when he was 12 years, to 30 October
2007, when he was convicted of the unlawful possession of
cannabis.
He notched up 20 convictions which can be categorised as follows:
3.1 Ten
convictions involving dishonesty. Notably in September 1998 he was
sentenced to three years imprisonment for the possession
of suspected
stolen goods and in August 2003 he was found guilty of dealing in
rough or uncut diamonds in contravention of the
relevant laws.
Strangely, he was sentenced to a mere one year suspended sentence in
the latter instance.
3.2 The appellant was
convicted of seven offences involving violence. Two rapes and two
indecent assaults on separate occasions.
The rest are assaults. He
clearly has a propensity for violent crimes; some are very serious.
3.3 Two of the offences
involve the possession of dagga and one driving a motor vehicle
without a driver’s licence.
Cognizant
of the aforegoing it is startling that during the application for
leave to appeal the prosecutor, Mr Michael Shivuri,
did not oppose
the granting of leave; in fact he supported it. He made the
following misleading statement in the course of addressing
the
Court:
“
Your Worship the
checking --– the last conviction with regard to the previous
conviction was 1997 --- and the accused was sentenced
in 2008 ---.
Your Worship in checking the age of those convictions ---, I think it
was 11 years --- by then. More than 10 years.
The State has no
objection with regard to the application ---.”
What
the prosecutor was looking at is not on record. Certainly the
appellant’s Criminal Record (SAP 69) printout, which record
he
admitted in court and what we relied on in para 3 above, does not
bear the prosecutor out. State counsel, Ms Jolene Mabaso,
who argued
the appeal conceded prosecutor Shivuri’s aberration.
The
less said concerning the reasons why
Magistrate
Ms Du Toit granted leave to appeal the better. She certainly was
unmindful of the legal requirements that an applicant
for leave to
appeal has to satisfy. The test still is that there must be
reasonable prospects of success. That is trite.
In
the case at hand the appellant broke into the house of the
complainant and stole from it goods to the value of R2 461-00.
Some
of them valued at of R1 586-00 were recovered. Not because
appellant was overcome by a guilty conscience but because he
was
caught out and the goods retrieved. If he played any part in the
recovery he would have shown some contrition and confessed
to his
misdemeanour, which was furthest from his mind. The recovery of the
goods, in the whole scheme of things, hardly produces
a ripple
effect as a mitigating feature.
A
court of appeal cannot increase a sentence beyond the maximum
punitive jurisdiction of a lower court even where the appellant
had
been given adequate notice of its intention to do so.
M
agistrates
and prosecutors must avoid this type of shoddy work, work that has
the potential of bringing the administration of
justice into
disrepute. If the appellant was previously properly punished he
would not have interfered with the bodily integrity
and property of
the community on these numerous occasions.
The
appeal must fail. The appellant must be warned that he risks be
ing
declared a habitual criminal if he next commits an offence.
In the premises
I make the following order:
1. The appeal is
dismissed.
2. The
appellant is warned that he may be declared a habitual criminal if he
is convicted of another offence which is deemed serious
enough for
the imposition of such a sentence.
________________________
F
DIALE KGOMO
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION
I concur.
________________________
G
N Z MJALI
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For
Appellant : Adv J. Cloete
On
Behalf of:
Legal
Aid Board
For
the Respondent: Adv J. Mabaso
On
behalf of:
DIRECTOR
OF PUBLIC
PROSECUTIONS, KIMBERLEY