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[2008] ZAWCHC 178
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Coetzer v S (A548/2007) [2008] ZAWCHC 178 (18 April 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
A548/2007
DATE: 18
APRIL 2008
In
the matter between:
PAULUS
PETRUS COETZER
Appellant
and
THE
STATE
Respondent
JUDGMENT
VAN
REENEN, J
:
[1]
For the sake of convenience I shall refer to the appellant as the
accused. The accused was charged on 5 December 2006 of having
contravened section 5(b), alternatively 4(b) and related sections of
the Drug Trafficking Act 140 of 1992 (to which I shall refer
as "the
Act").
[2]
The gravamen of the charges were that the accused on 30 January 2006
at the International Airport, Cape Town, wrongfulty and
unlawfully
dealt in or possessed 5.961 kilograms of cocaine, cocaine being a
dangerous and/or habit-forming substance.
The accused,
who was unrepresented during the trial, was, on 15 March 2007,
found guilty on the main count and he was
sentenced to 15 years'
imprisonment on 3 April 2007. The accused has lodged an appeal to
this Court with the leave of the Court
a
quo
who
limited the relief to sentence only.
[3]
Advocate
Losch
for the accused assailed the sentence imposed by the Court on two
broad bases. The first is that it induces a sense of shock.
The
second is that the magistrate misdirected himself in a number of
respects. The first of the alleged misdirections is that
he failed
to give sufficient consideration to the accuseds age; that he is
HIV-positive; that he is the father of minor children;
was
unemployed and was actuated by his financial needs; that he was a
first offender; that he disregarded the accused's plea
for mercy
and, in conclusion, that he did not have sufficient regard to the
fact that the accused had been awaiting trial for
over a year.
[4]
The second of the alleged misdirections is that the magistrate
over-emphasised the seriousness of the offence at the expense
of the
accused's personal circumstances. The third of the alleged
misdirections is that the magistrate failed to give due
consideration
to the accused's condition of health, as
well as the consequences thereof when he imposed such a lengthy
period
of imprisonment.
[5]
It is trite that a court in exercising an appeal function does not
have an overriding power to interfere with the sentence
imposed by a
fower court at will, but will only do so if the sentence imposed is
shockingly or disturbingly inappropriate, or
if the lower Court
committed a material misdirection. Those bases have been formulated
in a number of decisions which need not
be quoted, but can be
paraphrased broadly as follows.
[6]
The first ground requires the Court to determine, with reference to
the record of the proceedings, whether there is a striking
disparity
between the sentence imposed by the trial Court and that which the
Court of appeal would have imposed had it sat as
a Court of first
instance. As regards the second basis, it is trite that it
constitutes a misdirection if the trial Court misconstrued
certain
facts; failed to have taken certain material factors which should
have been taken into account; or has over-accentuated
the
seriousness of the crime and/or under-estimated the accused's
personal circumstances.
[7]
I have carefully considered the magistrates detailed judgment on
sentence and have come to the conclusion that he dealt with,
and
carefully weighed each and every one of the aspects enumerated in
the accused's counsel's heads of argument, and considered
them in an
even-handed and balanced manner. Accordingly, the misdirections
attributed to the magistrate, in my view, are devoid
of any merit.
[8]
It is common cause that the accused, by having brought 9.961
kilograms of cocaine into the Republic of South Africa from South
America, performed an act of importation which, in terms of section
1 of the Act amounts to dealing therein which, in terms of
section
13(f) is an offence and in terms of section 17, punishable with a
sentence of 25 years' imprisonment or both such imprisonment
and a
fine and such fine as a court might deem fit to impose.
[9]
It is apparent from the said penalty provision that the Legislature
viewed crimes such as the one of which the accused has
been
convicted, in a very serious light. Bearing in mind the prevalence
of the offence, as mentioned by the magistrate, and the
cataclysmic
consequences of addiction to hard drugs of that nature on
individuals and society; that the accused had been warned
against
participating in bringing drugs into South Africa from overseas
previously, and did so again purely because of financial
considerations; and failed to show any remorse there, in my view,
there is not such a disparity between the sentence imposed
by the
magistrate and the one I would have imposed had I sat as a Court of
first instance that it would have evoked a reaction
of shock or a
reaction of startling inappropriateness. In my view, the crime of
which the accused has been convicted requires
the imposition of a
severe sentence and that is exactly what the magistrate did.
[10]
Bearing in mind all those factors that should normally be taken into
account in sentencing, the magistrate's conduct in having
imposed
the sentence he did, cannot be criticised. I accordingly incline to
the view that the only other ground on which the
sentence was
assailed is also devoid of any merit.
[11]
Accordingly, the appeal against the sentence imposed by the learned
magistrate in the court a
quo
is
dismissed
[12]
In conclusion, although it is an aspect that did not feature in this
appeal, there is an aspect that troubfed both members
of this Court.
It is that the magistrate who tried the accused is the same
magistrate who presided in the application for bail
on 8 February
2006, i.e. approximately 10 months prior to the trial. What troubled
us was that as the accused was charged with
a Schedule 5 offence,
he, in terms of section 60(11)(b), was obliged to divulge any
previous convictions and in fact alluded
to previous convictions for
possession of marijuana and housebreaking.
[13]
Although the record of such proceedings formed part of the record of
the trial, it did not feature in the proceedings before
the
magistrate but, contrary to the provisions of section 60(11)(b), the
full record of both proceedings, including the reference
to the
previous convictions, forms part of the record on appeal. There does
not appear to have been anything improper in the
magistrate hearing
the bail application and the provisions of section 197 of Act 51 of
1977 (the Criminal Procedure Act) - which
restricts questions
relating to previous convictions to clearly circumscribed
circumstances - do not appear to have been offended
against during
the trial.
[14]
The only potential problem is the appropriateness thereof that the
magistrate who heard the bail application also presided
at the
trial. That knowledge of an accused's previous convictions, other
than in the limited circumstances enumerated in section
197 of the
Criminal Procedure Act, is undesirable seems to be supported by the
provisions of section 60(11 )B{c) of the Criminal
Procedure Act and
is also apparent from comments to that effect made by judges in
decided cases (see for instance
S
v Thusi & Others
2004 BCLR 433
(N) and
S
v Nhlati
2000(8) BCLR 121 (N).)
[15]
There could be little doubt that the gleaning of knowledge of an
accused's relevant previous convictions during the course
of a trial
prior to conviction constitutes an irregularity. I come to that
conclusion in a reported case
S
v Niikaza
2002(2) SACR 481 (C) in which the accused's previous convictions had
been elicited prior to a sentencing. That conclusion was
logically
and cogently criticized in the 2003 in
Tydskrif
vir Hedendaagse Romeins-HolEandse Reg
at page 505 and further. It would appear that the then Appellate
Division in
S
v Ntembu & Others
1988(1) SA 145 at 151, in a pre-constitutional context, found that
the cross-examination of an accused on his previous convictions
after it had been raised by himself, did not constitute an
irregularity of such a severity that it amounted to a failure of
justice
per
se.
[16]
The only potential problem, as I have said, is that the magistrate
who heard the trial also sat in the application for bail
but that is
not decisive of the matter. Interference would be justified only if
it appears that a failure of justice has in fact
resulted from any
irregularity or defect as provided for by section 309(3) of the
Criminal Procedure Act, or if it could be said
that it resulted in
the accused not having had a fair trial within the meaning thereof
in the Sill of Rights in that it is of
such a nature that it offends
against "notions of basic fairness and justice" (see
S
v Zuma & Others
1995(1) SACR 568 (CC).)
[17]
As it appears to us that irrespective of the irregularity, the
accused
1
s guilt had been amply proved by the evidence adduced by the State
and, because of the long time lapse between the bail application
and
the trial, as well as the fact that the magistrate specifically
stated in his judgment that he treated the accused as a first
offender and there is nothing to signify to the contrary, we,
without having had the benefit of full argument thereanent,
came
to the conclusion that the said magistrate presided at the trial, as
well as the bail application, did not in the instant
case constitute
an irregularity of such a magnitude that it vitiated the trial
proceedings.
[18]
Accordingly, in our view, there is no need for us to interfere with
the conviction in the exercise of our review powers.
VAN
REENEN, J
DLODLO.
J
:
I agree.
DLODLO,J