S v Salie (1684/06) [2006] ZAWCHC 35; 2007 (1) SACR 55 (C) (23 August 2006)

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[2006] ZAWCHC 35
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S v Salie (1684/06) [2006] ZAWCHC 35; 2007 (1) SACR 55 (C) (23 August 2006)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
High Court Review Ref:
061684
Magistrate’s
Court Ref No:
302/2005
Magistrate’s
Case No:
28/47/04
In
the matter between:
THE
STATE
vs
FAIZEL
SALIE
Coram:
YEKISO
J
Delivered:
23
August 2006
Summary:
Accused
convicted of robbery with aggravating circumstances – accomplices
tried separately and similarly convicted of robbery with
aggravating
circumstances – on appeal found aggravating circumstances not
proved resulting in reduction of sentences – whether
such finding
on appeal constitutes ground for review of conviction on robbery with
aggravating circumstances arising from same facts.
Held – a finding
of presence or otherwise of aggravating circumstances dependant on
evidence tendered in a trial in which such
finding made.
Locus
standi
– magistrate
initiating review arising from proceedings held before another
magistrate – in as much as the conduct of the magistrate
initiating
review could have been prompted by fairness of trial in the sense of
disparity in sentence, a much more broader approach
to standing for
purposes of enforcement of the fundamental rights infringed in the
Bill of Rights ought to be adopted. Held – magistrate
initiating
review proceedings does have
locus
standi.
REVIEW
JUDGMENT DELIVERED: 23 AUGUST 2006
YEKISO,
J
[1] The accused in
this matter of a proposed review, Faizel Salie, together with three
other persons, one of whom was a female, was
charged with robbery
with aggravating circumstances allegedly committed at Bothasig, in
the regional division of the Cape. The
offence was alleged to have
been committed on Monday, 11 March 2002. Once arrested and charged,
the accused engaged the service
of a legal representative in the
person of John Riley, a senior attorney practicing as such at
Wynberg, Cape. On basis of a plea
and sentence agreement concluded
between the accused and the Director of Public Prosecutions, the
accused tendered a guilty plea
and thus pleaded guilty to the charge
of robbery with aggravating circumstances. The magistrate, upon
being satisfied that the
plea and sentencing agreement was concluded
in accordance with the law, and that the sentence proposed was just,
proceeded to convict
the accused of robbery with aggravating
circumstances and sentenced him to four (4) years imprisonment as
proposed in the plea and
sentence agreement. Because of the
conclusion of the plea and sentence agreement, the accused was tried
separately and, as one
of the terms and conditions of the plea and
sentence agreement, agreed to testify against his three accomplices.
Mr JEA Van Zyl
(Van Zyl), Regional Magistrate, Cape Town, presided
over the accused’s trial.
[2] In
a separate trial which ensued, his three accomplices were also tried
on a charge of robbery with aggravating circumstances
before a
different magistrate in the person of Ms Naidoo. After the
conclusion of evidence in that separate trial, his accomplices
were
convicted of robbery with aggravating circumstances as charged and,
subsequently, each one of them was sentenced to eight (8)
years
imprisonment. After his accomplices were convicted and sentenced,
two of such accomplices noted an appeal against both their
convictions and sentences. Judgment in the matter of that appeal
was delivered in this court on 23 September 2005 and subsequently
reported in the Butterworths Law Reports under the citation
Isaacs
& Another v S
[2006] 2 All SA 163(C).
In that appeal, the
convictions of and the sentences imposed on the accused accomplices
were set aside, including that of the accomplice
who did not note an
appeal. The convictions of his accomplices on a charge of robbery
with aggravating circumstances was substituted
with one of robbery,
whilst sentences of eight (8) years imprisonment in respect of each
one of them was substituted with the one
of four (4) years
imprisonment. In that appeal the Court found that there was doubt
if aggravating circumstances were present on
the occasion of the
commission of the robbery hence the setting aside of the convictions
and the sentences imposed and the substitution
thereof with
convictions on robbery and a sentence of four (4) years imprisonment
in respect of each one of his accomplices.
[3] Once
judgment in the matter of that appeal became known, Ms Naidoo, also a
Regional Magistrate, Cape Town, who had presided over
the matter at
trial, and per a letter dated 11 November 2005, purported to initiate
what can only be construed as review proceedings
for the review and
setting aside of the conviction of the accused on a charge of robbery
with aggravating circumstances and the sentences
imposed and for the
substitution thereof with a conviction on robbery and possibly with a
lesser sentence to the one of four (4)
years imprisonment initially
imposed. Ms Naidoo was obviously of the view that what she had
proposed in her letter is the appropriate
remedy available to the
accused since the latter’s conviction and sentence arises out of
the same facts and circumstances considered
in the matter of an
appeal of his accomplices and, ostensibly, that the accused is also
entitled to the benefit of a conviction on
a less serious charge and
possibly to a lesser sentence. Ms Naidoo’s letter was
specifically marked for my personal attention
hence the referral
thereof, together with the enclosures thereto, to me once same was
received by the Registrar.
[4] On
receipt of Ms Naidoo’s letter, I addressed a letter to Mr Van Zyl,
who presided over the matter of the accused at trial,
enclosing a
copy of a letter from Ms Naidoo and I elicited a comment from him as
regards the proposed review. Mr Van Zyl presided
over the trial of
the accused which, as set out in paragraph [1] above, was disposed of
and finalized on the basis of the sentence
and plea agreement
concluded between the accused and the Director of Public
Prosecutions.
[5] Mr
Van Zyl, in his response to my letter, in the first instance, raises
the issue of Ms Naidoo’s
locus standi
to initiate the
proposed review. As regards the accused’s conviction on the plea
and sentence agreement his response, in broad
terms, amounts thereto
that the accused, in his plea and sentence agreement admitted to
facts justifying a conviction on robbery
with aggravating
circumstances, that he admitted those facts in circumstances where he
was properly advised, by a senior attorney,
as regards a guilty plea
to a charge of robbery with aggravating circumstances; that on
perusal of the plea and sentence agreement,
he was satisfied that the
accused admitted to facts justifying a conviction to the charge of
robbery with aggravating circumstances
and, once satisfied that the
plea and sentence agreement was in accordance with the law, he
proceeded to convict and sentenced the
accused the accused in
accordance with the terms of the plea and sentence agreement.
[6] Once
I had received a response from Mr Van Zyl, I addressed a letter dated
20 January 2006 to the Director of Public Prosecutions,
enclosing all
relevant documentation and requesting a comment from that
organization as regards whether the proceedings are reviewable
as
proposed and, in particular, whether Ms Naidoo does have
locus
standi
to initiate the proposed review on behalf of the accused.
[7] The
Director of Public Prosecutions responded by way of a letter dated 8
June 2006, which I received shortly before the end of
the second
term, under cover whereof was enclosed an opinion by
Ms Johnson
,
a state advocate in that organization, with which opinion the
Director of Public Prosecutions agrees. I am grateful for
Ms
Johnson’s
incisive treatment of the issues involved and I wish
to take this opportunity of placing it on record that her opinion and
comment
has made my task much easier.
[8] My
task, in the circumstances of this matter, is to determine, in the
first instance, whether Ms Naidoo does have capacity to
initiate
these review proceedings in the manner she did and, if so, whether
the proceedings themselves are reviewable in terms of
the law.
LOCUS
STANDI
[9] Ms
Naidoo was a presiding judicial officer in a matter involving the
accused’s accomplices who, as has already been pointed
out, were
charged with robbery with aggravating circumstances. The charge
against the accused’s accomplices arose out of the
same set of
facts and circumstances on basis of which he concluded a plea and
sentence agreement and on basis of which the accused
was convicted
and sentenced on the crime of robbery with aggravating circumstances.
The accused accomplices were tried separately
before Ms Naidoo.
The accused testified in his accomplices’ trial as he had
undertaken to do in terms of the plea and sentence
agreement. It
was during the course of the trial of the accused’s accomplices
that Ms Naidoo became aware that the accused, in
turn, was an
accomplice witness, that he had been convicted on the same set of
facts and circumstances and that he had since been
sentenced to four
(4) years imprisonment. At the conclusion of that trial, the
accused’s accomplices were each convicted of robbery
with
aggravating circumstances as charged and were each sentenced to eight
(8) years imprisonment. On appeal the conviction of
his accomplices
of robbery with aggravating circumstances was set aside and
substituted with a conviction of robbery. The sentences
of eight
(8) years imprisonment in respect of each one of his accomplices was
similarly set aside and substituted with sentences
of four (4) years
imprisonment in respect of each one of them.
[10] Once
Ms Naidoo became aware of the outcome of the appeal she similarly
became aware of what in her view was, ostensibly, a disparity
in
sentences arising from the setting aside of sentences of eight (8)
years imprisonment in respect of each one of the accused’s
accomplices and the substitution thereof with one of four (4) years
imprisonment. In her view the accused ought to be entitled
to the
benefit of a conviction on a lesser offence and, possibly, to a
lesser sentence since these arise from the same set of facts
and
circumstances on basis of which the convictions of his accomplices
were set aside and substituted with a conviction on a lesser
offence.
Based on what appears to have been Ms Naidoo’s view at the time
she initiated the review proceedings, two fundamental
rights were at
play, namely, the right to equality before the law in terms of
section 9 of the Constitution of the Republic of South
Africa, 1996
(the Constitution) and the right to have the proceedings reviewed by
a higher court as contemplated in section 35(3)(o)
of the
Constitution. Ms Naidoo was probably of the view that the fact that
the accused remains a convict on a more serious offence,
arising from
the same set of circumstances probably constitutes an unequal
treatment of a substantial degree in respect of the accused.
[11] In
terms of the common law an applicant who sought a remedy for judicial
review had to prove that he or she had a sufficient
legally protected
interest to justify his application, generally either a personal or
direct interest in the matter. The example
that come to mind is a
proprietary or pecuniary interest or a substantial and peculiar
interest in the matter proposed to be reviewed.
However, since the
advent of the democratic order the scope of
locus standi
of
individuals and groups to seek relief in matters involving
fundamental rights, which invariably includes a right to have
proceedings
reviewed by a higher court, has since been broadened to
include anyone acting on behalf of another person who cannot act in
their
own name. (See section 38(b) of the Constitution). Because
of considerations of such fundamental rights relating to equality
before the law, the right to have proceedings reviewed by a higher
court and because of the broadened standing in terms of section
38 of
the Constitution I am inclined to hold the view that Ms Naidoo does
have
locus standi
to initiate this review on behalf of the
accused who clearly is unable to do so, if not only because of his
current incarceration.
Now the next question to determine is
whether the proceedings sought to be reviewed are in themselves
reviewable.
THE
QUESTION OF WHETHER THE PROCEEDINGS ARE REVIEWABLE
[12] In
S v Taylor
2006(1) SACR 51 I examined various grounds of
review to ascertain if the proceedings in that matter, which were
also pursuant to
a plea and sentence agreement, were reviewable on
basis of various complaints advanced by the accused in that matter.
In that matter,
I held that those proceedings were not reviewable in
terms of section 302 of the Criminal Procedure Act, as the accused in
that matter
was represented by a legal representative at trial.
Similarly, in this matter, the proceedings are not reviewable in
terms of the
ground set out in section 302 of the Criminal Procedure
Act as the accused was legally represented at trial.
[13] In
S v Taylor,
supra, paragraph [14] at p57 of that review
judgment I explored other possible statutory basis for review and I
ultimately came to
the conclusion that those proceedings were not
reviewable in terms of any one of the grounds set out therein nor
were those proceedings
reviewable in terms of section 24 of the
Supreme Court Act, 59 of 1959. The same position holds in the
instance of this matter.
The only possible statutory basis on basis
of which this matter could possibly be reviewed could be in terms of
section 173 of
the Constitution which provides as follows under the
heading “
Inherent power
”:
“
The
Constitutional Court, the Supreme Court of Appeal and High Courts
have the inherent power to protect and regulate their own process,
and to develop the common law, taking into account the interests of
justice.”
In
that matter,
S v Taylor,
supra, I proceeded to review those
proceedings taking advantage of the comprehensive approach
contemplated in section 173 of the Constitution
without the hurdle of
being subjected to some form of statutory constraint.
[14] The
basis for the referral of this matter for review is in the light of a
finding in
Isaacs & Another,
supra, that no aggravating
circumstances on the occasion of the commission of robbery in those
proceedings were proved. In
Isaacs & Another,
supra,
I made that finding in the light of the evidence tendered at the
trial of the accused accomplices. In that judgment I held that
the
state had chosen to make the accused in this matter under review its
star witness, and that its case would have had to rise and
fall on
basis of his evidence. In that matter I held that I could not, on
basis of the accused’s evidence, find that aggravating
circumstances were proved. This then leads to the question of what
evidence was there before Mr Van Zyl on basis of which he was
satisfied that the accused was indeed guilty of robbery with
aggravating circumstances.
[15] In
paragraph [5] of this judgment I referred, in broad terms, to a
response from Mr Van Zyl in which it is implicit that he found
the
plea and sentence agreement concluded by the accused to have been
concluded in accordance with the law and that the accused,
on proper
legal advice, had intended to, and did indeed plead guilty to robbery
with aggravating circumstances. Over and above
the comment made by
Mr Van Zyl I must reiterate that the accused was, at all material
times during the course of those proceedings,
legally represented by
a senior attorney in the person of Mr Riley who, in no doubt,
assisted the accused in the negotiation of a
plea and sentence
agreement. Mr Riley would, in no doubt, have given the accused
legal advice on basis of facts given to him by
the accused. It was
on basis of the facts admitted by the accused that a plea and
sentence agreement was concluded. Mr Van Zyl
was satisfied that the
plea and sentence agreement was concluded in accordance with the law
and, thus, proceeded to convict and sentenced
the accused on that
basis.
[16] This
is what Mr Riley had to say, amongst other admissions made by the
accused,when reading the plea and sentence agreement into
the record:
“…
and the said robbery was
accompanied by aggravating circumstances within the meaning of
section 1 of Act 51 of 1977 in that the accused
wielded a knife on
the occasion when the offence was committed and so threatened to
cause grievous bodily harm to Maria Neethling.”
This
was the body of evidence before Mr Van Zyl on basis of which he
convicted the accused on robbery with aggravating circumstances.
The
fact that there was uncertainty as regards the presence or otherwise
of aggravating circumstances in a matter of a trial of his
accomplices is not a basis to fault the proceedings concluded on
basis of the plea and sentence agreement concluded by the accused
and
on basis of sound legal advice.
[17] It
therefore follows in my view that there is no basis to interfere with
the manner in which the accused’s trial was handled
by Mr Van Zyl
_____________________________
N J Yekiso, J
I
agree.
_____________________________
N
Goso, AJ
It
is so ordered.