Swartz and Another v S (A664/2000) [2002] ZAWCHC 16 (9 April 2002)

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[2002] ZAWCHC 16
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Swartz and Another v S (A664/2000) [2002] ZAWCHC 16; 2002 (2) SACR 1 (C) (9 April 2002)

IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: A664/2000
In
the matter between:
BOOI
ARNOLDUS SWARTZ First Appellant
SHANE
SEBASTIAAN BENNET Second Appellant
and
THE
STATE Respondent
JUDGMENT
DELIVERED ON 9 APRIL 2002
TRAVERSO, DJP et
DESAI, J et KNOLL, J :
[1]
The Appellants were convicted in the Regional Court, Springbok of
rape and indecent assault. The Magistrate found that the Appellants
acted with a common purpose to rape and they were referred to the
High Court for purposes of sentence in accordance with the provisions
of Section 52(1)(b), read with Section 51(1) and Part 1 of Schedule 2
of the Criminal Law and Procedure Act, No. 105 of 1997 (“the
Act”).
(Prior to its amendment by Act 62 of 2000.)
[2]
The sentence proceedings commenced before Davis, J. on 17 June
1999.
[3]
After hearing evidence on sentence, the Appellants were sentenced
to 18 years’ imprisonment each in respect of both convictions
on 21
June 1999.
[4]
After sentence was imposed an application was immediately made
for leave to appeal. The grounds upon which the application was
brought do not appear
ex
facie
the record. The judgment of the Court
a
quo
on this aspect reads as follows:
“
Having
heard Counsel for both sides, I am inclined to the view submitted by
Miss
Nel
,
namely that there are ambiguities in the evidence placed on record,
and that accordingly I am prepared to grant the application
for leave
to appeal insofar as conviction is concerned.
That leaves the question of
sentence which might well change given the factual complex upon which
an appeal Court decides the matter
and for this reason alone I would
grant leave to appeal.
Leave to
appeal is therefore granted in relation of both sentence and
conviction. There is a recommendation made that both accused
be held
in
prison
in Upington.”
[5]
In view of this judgment it is necessary to analyse the
provisions of Section 52 of the Act in some detail. Because the
Appellants
were convicted after a plea of not guilty, and accordingly
referred to the High Court in terms of Section 52(1)(b) of the Act,
the
High Court had to deal with the matter in accordance with the
provisions of Section 52(3) of the Act which provided
inter
alia
:
“
(3)(a) Where an accused is
committed under subsection 1(b) for sentence by a High Court, the
record of the proceedings in the regional
court shall upon proof
thereof in the High Court be received by the High Court and form part
of the record of that Court.
(b)
The High Court shall,
after
considering
the record of the proceedings in the regional court, sentence the
accused, and the judgment of the regional court shall stand for
this
purpose and be sufficient for the High Court to pass sentence as
contemplated in Section 51:
Provided
that if the judge is of the opinion that the proceedings are not in
accordance with justice or that doubt exists whether
the proceedings
are in accordance with justice, he or she shall, without sentencing
the accused, obtain from the regional magistrate
who presided at the
trial a statement setting forth his or her reasons for convicting the
accused
.”
(Our underlining)
[6]
In our view, on a proper interpretation of sub-Section 52(3)(a)
of the Act, it merely creates a mechanism to facilitate the proof
of
the record of the proceedings in the Regional Court. (See Du Toit
et
al
:
Commentary on the Criminal Procedure Act. Du Toit
et
al
on 18 - 16 E. Although this commentary
deals
with Section 116(2) of the Criminal Procedure Act, the wording is
identical to Section 52(3)(a) of the Act.) The significance
of this
will appear later.
[7]
Once the record of the proceedings in the Regional Court has
become part of the record of the High Court, the High Court must
consider the record and thereafter sentence the accused. A Court
will however only go over to the sentencing procedure if the Court
is
satisfied that the proceedings were in accordance with justice. If
there is any doubt, the Court must act in accordance with
the proviso
contained in Section 52(3) of the Act.
[8]
It is self-evident that a Court can never form an opinion that
proceedings are in accordance with justice if the evidence is
insufficient for a conviction to stand scrutiny. If a Court has any
reason to doubt whether the evidence in the Regional Court
was
sufficient to sustain a conviction, the Court should have invoked the
provisions of sub-Sections 52(3)(c), (d) and/or (e) of
the Act.
[9]
It would appear that the trial Judge did not follow this
procedure. We say this for the following reasons. At the
commencement
of the proceedings Ms de Lange who appeared for the
Respondent, made the following submission:
“
U
Edele, die beskuldigdes is in hierdie saak ingevolge artikels 51 en
52(3)(a) na hierdie hof verwys vir vonnis deur die streekhof.
Ek vra
dat die oorkonde van die verrigtinge toegelaat word in hierdie hof
ingevolge daardie artikel asook artikel 235 van die Strafproseswet
en
dat artikel 3(b) van Wet 105 van 1977 bepaal dat anders as by ‘n
geval van skuldig pleit, die uitspraak van die streekhof vir
die doel
bly staan. Die Hof hoef nie weer ‘n formele bevinding te maak nie.
Soos die Hof behaag, U Edele.”
[10]
This submission by Ms de Lange was wrong. Section 52(3)(a) of
the Act does not provide that the
judgment
of the Regional Court becomes the judgment of the High Court upon
proof of the record. It merely provides that the
record
of the Regional Court becomes part of the record of the High Court.
[11]
It was also wrong to submit that the judgment of the Regional
Court “
will
stand
”,
and that the Court is not required to make a “
formal
finding
”
(“
formele
bevinding
”).
Although the wording of this Section is most unfortunate and all but
clear, it is evident from the wording of sub-Section 52(3)(b)
of the
Act that the Court is in fact required to satisfy itself that the
conviction is in accordance with justice, and that if it
is not so
satisfied, it will have to proceed in terms of the proviso to the
Section, and, if necessary, set the conviction aside.
It is not just
a matter of
“receiving
”
and “
adopting
”
the Regional Court judgment.
[12]
The problem was compounded by Counsel for the defence confirming
the submissions made by Ms de Lange. In our view Counsel owe
a duty
to the Court to ensure that their submissions are correct, both
factually and in law. The failure to do so in this case is
most
unfortunate, although we do not believe that either Counsel
deliberately tried to mislead the Court. Their error was in all
probability also the result of an Act which is most difficult to
comprehend.
[13]
A Court has of course always an independent duty to familiarise
itself with the relevant provisions of the Act before hearing
the
matter. This was one of the first cases where the Act stood to be
considered. The Act is formulated in clumsy and sometimes
incomprehensible terms. In the circumstances it is understandable
that the Judge may have misconstrued his role in a case such
as the
one under consideration.
[14]
However, upon closer scrutiny it becomes apparent that the Act
provides for four different stages, namely:
14.1 Before there can be
a referral to the High Court for sentence, there must be a conviction
by the Regional Court.
14.2 If an accused is
convicted of an offence listed in Part 1 of Schedule II of the Act,
the Regional Court is obliged to refer the
case to the High Court for
sentence.
14.3 Before the High
Court can impose a sentence, it must consider the record of the
proceedings in order to establish whether they
were in accordance
with justice. If the High Court is so satisfied, it can proceed with
the hearing. If not, it must request reasons
for the conviction from
the Regional Court. Thereafter the procedures set out in Section
52(3)(b) to (e)(i) and (ii) of the Act
must be followed.
14.4 The fourth stage is
the sentencing procedure where the High Court is obliged to apply the
provisions of Section 51(1) or (2)
of the Act.
[15]
There is no dispute that the first two stages were followed and
complied with. It is the next two stages which formed the basis
of
this appeal.
[16]
Against this background, this Court is faced with the following
dilemma:
It appears from the
record that the learned trial Judge was not aware of all the
provisions of Section 52(3)(a) and (b) of the Act.
Accordingly the
learned trial Judge misconstrued his role in the case.
There are clear
indications (although not sufficient to make a definite finding)
that the learned trial Judge did not read the record
before
proceeding with the hearing of evidence in mitigation of sentence.
[17]
We say this for the following reasons. The record of the
proceedings in the Regional Court runs into some 251 pages. The
Appellants’ pleas appear from the record. Several witnesses were
called in the Regional Court and they were cross-examined at
length
by the defence attorney. Both Appellants testified in support of
their contention that they were not guilty on
the charges.
The Magistrate saw fit to call a further witness. Despite all this,
one finds the following comments of the learned
trial Judge, just
after the completion of the First and Second Appellant’s evidence
in mitigation respectively:
“
HOF
:
Kan ek net vir u vra, het hy skuldig gepleit in verband met die
misdaad van verkragting?
”
....
“
Ja,
u sien my probleem is ek is nou deel van die hof-verrigtinge, u is
nou skuldig bevind. Al wat ek hier mee te doen het is die
vonnis,
nie met - ek is nie ‘n appèlhof op die oomblik nie, ek is net deel
van die verhoor. U sê sy het toegestem, u voel nie
gelukkig omdat
jy is nou skuldig bevind van iets wat jy nie gedoen het nie, as
gevolg van die feit dat sy toegestem het. Is dit
u posisie en dit is
waarom ... (tussenbeide) --- Ja.”
[18]
The first question undoubtedly creates a very strong impression
that the learned trial Judge had not read the record at that
stage.
The second comment, on the other hand, indicates clearly that the
learned trial Judge was of the view that he was bound by
the
conviction of the Regional Court. This is further substantiated by
certain extracts of exchanges which took place during argument
and
which were annexed to Ms de Lange’s Supplementary Heads of
Argument. In our view these extracts further demonstrate that the
Court
a
quo
misconstrued the provisions of the Act, and the role that it had to
fulfil:
“
HOF
:
Kan ek vir u uit die staanspoor af net een vraag vra. U weet een
van my grootste probleme in hierdie soort sake is dat ek het
nie die,
u weet hierdie verdeling tussen die eerste deel van hierdie verhoor
en die tweede deel veroorsaak groot probleme vir my,
want vir my die
toets is nie toets nie, dat ek moet aanvaar dat hulle skuldig bevind
was van die wat die landdros gevind het.
ME
DE LANGE
:
Dit is inderdaad die toets u Edele.
HOF
:
Ja, dit is. Met ander woorde, natuurlik het die beskuldigdes regte
op appèl en so aan ensovoorts, maar die feit bly staan ek is
nie ‘n
appèlhof nie. Ek sit hierso as ‘n verhoorhof en dit is asof ek
alreeds bevind het dat hierdie twee mense, hierdie twee
beskuldigdes
die klaagster verkrag het en dat hulle die klaagster verkrag het in
die manier wat die landdros bevind het.
...
HOF
:
... Nou kry ek ‘n oorkonde soos hierdie. Ek is nie ‘n regter op
appèl nie, so in ander woorde ek aanvaar wat in die laerhof
gebeur
het en ek is gebonde aan die bevindings van hierdie oorkonde en dit
is baie moeilik.
...
HOF
:
Ja, maar miskien is die antwoord daarop dat as u nie tevrede met die
verrigtinge op die laerhof is nie, het jy ‘n reg om te appelleer.
...
HOF
:
Ja, maar ek sit ook met die rekord en dit is waarom ek wil vra wat sê
u in hierdie situasie, as ek al die punte wat u betoog het
in ag neem
en die feite van hierdie saak soos die landdros dit bevind het, wat
is ‘n toepaslike vonnis?
[19]
In our view the judgment in terms whereof leave to appeal was
granted should be read against the background set out above.
[20]
There is no notice of appeal. As pointed out earlier, the
grounds upon which leave to appeal were sought, do not appear
ex
facie
the record. The judgment in terms whereof leave to appeal was
granted, is terse and of no assistance in this regard.
[21]
The judgment refers to certain “
ambiguities
”,
but it is not clear what these are. If it refers to ambiguities in
the evidence before the Regional Court, the Regional Magistrate
should have been asked for reasons. This was not done. In any event
on our reading of the evidence, we do not find ambiguities
of any
significance in the evidence before the Regional Court. The
credibility findings of the Regional Magistrate are in our view
beyond criticism.
[22]
We,
therefore by inferential reasoning assume that the trial Judge must
have been referring to ambiguities between the complainant’s
evidence before the Regional Court, and her evidence before the Court
a
quo
.
The only ambiguity that one can think of is the evidence relating
to the psychological impact of this rape upon the complainant.
This
evidence is in our view irrelevant when it comes to the consideration
of the evidence for purposes of a conviction. It was
not suggested
by or on behalf of any of the Appellants that the factual findings
made in respect of the rape and the sexual assault
would in any way
be affected by the later conduct of the complainant.
[23]
It is unclear what the learned Judge referred to when he said
that “
the
question of sentence may well change given the factual complex upon
which an Appeal Court decides the matter
”.
We are bound by the facts that are on record. In our view the
evidence led in the Regional Court, and the evidence in respect
of
sentence do not constitute a different “
factual
complex
”.
The “
factual
complex
”
to which reference is made can only be the factual complex upon which
the Appellants were convicted. As set out above, that factual
complex remained the same.
[24]
Due to the uncertainty arising from the aforegoing, we called for
further written submissions on the following questions:
“
(a) Is
it the conviction by the Regional Magistrate, or the “acceptance”
thereof by the Judge a quo in terms of section 52(3)(b)
of Act 105 of
1997, appealed against? (In replying to this question, reference
should be made to the provisions of section 52(3)(b)
of the said Act
and the question of the legislature’s intention in this regard,
bearing in mind the following:-
The
provisions of
section 309(1)
of the
Criminal Procedure Act 51 of
1977
which provide that “any person convicted of any offence by
any lower court” has an automatic right of appeal against “such
conviction”;
The
provisions of
section 315
read with 316(1) of the
Criminal
Procedure Act 51 of 1977
, which provide that an accused “convicted
of any offence before a superior court” may bring an application
for leave to appeal
“against his conviction”;
(iii)
The questions in this regard raised obiter by Griesel J in
S.
v.
Olkers 2002(1) SACR 179 at 183 a - i
).
(b) If
it is found that an irregularity was committed by the Judge a quo
which vitiates the proceedings, in that the record was not
read,
which proceedings are vitiated:-
The
conviction of the appellants by the Regional Magistrate; or
the
“acceptance” of that conviction and subsequent sentencing
procedures; or
both
(i) and (ii) above?”
[25]
Due to the view that we adopt it is necessary only to consider
the question formulated in (b) above.
[26]
As set out in paragraph 6 above, the provisions of Section
52(3)(a) of the Act merely create a mechanism to facilitate the proof
of the record of the proceedings in the Regional Court.
[27]
On a proper interpretation of Section 52(3)(b), the judgment, and
therefore the conviction of the Regional Court will stand and
be
sufficient for the High Court to sentence the Appellants
if
,
and only if the Court is of the view that the proceedings were in
accordance with justice.
[28]
If the High Court, for whatever reason, has not considered
whether the proceedings in the Regional Court have, in fact, been
in
accordance with justice, it could not, in law, have sentenced on the
basis of the Regional Court judgment (conviction). But that
can
never affect the proceedings, and accordingly the convictions, in the
Regional Court which were not marred by such irregularity.
(Cf:
S.
v. Shikunga & Another
2000(1) SA 616 NmSc at 629 F-J.)
[29]
It was in our view the “
acceptance
”
by the learned trial Judge of the convictions which were materially
flawed. It was conceded by Ms de Lange that if we should
find that
the learned trial Judge did not read the record, the irregularity
will be such that it would vitiate the proceedings before
Davis, J.
The dangers of the split procedure created by Section 52 of the Act
were emphasised by the Constitutional Court in
S.
v. Dzukuda & Others; S. v. Tshilo 2000(2) BCLR 1252 CC
.
Ackerman, J. emphasised:
“
Taking
the protection and enjoyment of fundamental rights seriously demands
constant vigilance and effort to attain in practice what
is promised
in the Constitution. This is a grave responsibility.”
[30]
Ackerman, J. also stresses that Section 52 of the Act vests a
High Court with
original
sentencing jurisdiction and is designed to place the High Court in
the same position as a trial Court. It is of course self-evident
that if a High Court has not familiarised itself with all the
relevant facts, it can never be placed in remotely the same (as
opposed
to identical) position of a trial Court. And if that is so,
the Appellants would not have had a fair trial, during the sentencing
proceedings.
[31]
Although we have indicated that we cannot make a definite finding
that the trial Judge did not read the record, there are strong
indications that he did not do so. He also misconstrued the
provisions of the Act in material respects. Accordingly it cannot be
said that the Appellants had a fair hearing.
[32]
In the circumstances, we set aside the totality of the
proceedings before Davis, J.
________________________
TRAVERSO, DJP
_________________________
DESAI, J
__________________________
KNOLL,
J
“
REPORTABLE”
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: A664/2000
In
the matter between:
BOOI
ARNOLDUS SWARTZ First Appellant
SHANE
SEBASTIAAN BENNET Second Appellant
and
THE
STATE Respondent
Counsel
for 1
st
& 2
nd
Appellants : Adv. Sonja Lötter
Amicus
Curiae
Counsel
for Respondent : Adv. A.A. de Lange
Director
of Public Prosecutions
Date
of Hearing :
28
January 2002
Date
of Judgment : 9 April 2002