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[2002] ZAWCHC 35
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S v Buys and Another (B1206/2001) [2002] ZAWCHC 35 (19 June 2002)
IN THE HIGH
COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE NO.: B1206/2001
REPORTABLE
In the matter between :
THE STATE
and
REGINALD
BUYS
Accused No. 1
RICARDO
BUYS
Accused
No. 2
___________________________________________________________________________
REVIEW JUDGMENT DELIVERED ON
19 JUNE 2002
___________________________________________________________________________
DENZIL
POTGIETER, A.J.
:
This is a review in the
ordinary course in terms of Section 302 of Act 51 of 1977. The
accused were jointly charged in the Magistrate's
Court, George with
one count of malicious injury to property arising from an incident
which occurred on 2 September 2001 when the
house of Kerneels
Stalmeester situated at Golden Valley, Blanco in the district of
George was damaged. Accused no. 1 was charged
with a further count
of malicious injury to property in respect of a separate incident
that occurred subsequently in the same vicinity
on 8 September 2001.
Accused no. 1 was convicted of both counts and Accused no. 2 in
respect of the first count only. It is convenient
to commence with
the second count.
When
the matter came before a judge in chambers on an earlier occasion,
the trial Magistrate was requested to deal with the following
query
in respect of count 2 :
"1. whether a plea of
not guilty should not have been entered for accused no 1 in respect
of count 2 in view of his statement
(when questioned in terms of
section 112(1)(b) that he "broke the window when it was already
broken");
2. whether the finding
that the witness Laws testified that accused no 1 broke the window
of the house referred to in count 2 (record
p36, lines 19-20), was
in the circumstances justified. In this regard the magistrate's
attention is drawn to the evidence of Laws
at page 25, lines 23-24,
where he testified: "Reggie het gesê Neil moenie die mense se
ruite uitslaan nie"."
The
Magistrate responded as follows :
"4.1 In respect of (1)
supra, a plea of not guilty should indeed have been entered.
4.2 In
retrospect, the finding that Mr Laws testified that accused no 1
broke the window of the house referred to in count 2, was
in the
circumstances unjustified as line 23-24 of the records reads :
"Reggie het gesê Neil moenie die mense se ruite uitslaan
nie".
6. I request the
Honourable Reviewing Judge to confirm count 1 in respect of accused
1 and 2."
It
is clear from the above response that the Magistrate concedes that
the conviction of Accused no. 1 in respect of count 2 should
be set
aside. This is a proper concession. A plea of not guilty should
indeed have been entered. No evidence was tendered at
all by the
State in support of this count. Accused no. 1 is accordingly
entitled to be acquitted on count 2.
In
respect of count 1, the trial court correctly found that the Accused
were part of the group that attacked the complainant's house.
Both
participated to some extent in the attack and clearly associated
themselves with the actions of their companions. It was
common
cause that complainant's house was damaged in the attack. In the
result the conviction of the Accused on count 1 is well-founded.
The
trial court took the convictions of Accused no. 1 in respect of the
two counts together for the purpose of sentence and imposed
a 12
months wholly suspended period of imprisonment upon the Accused. A
wholly suspended fine of R600-00 or 90 days imprisonment
was imposed
on Accused no. 2.
The
following query in respect of sentence was addressed to the trial
Magistrate by the judge in chambers referred to above :
"3. whether either of
the accused had access to the report of the probation officer before
they were asked to admit same and,
if not, whether the magistrate
was entitled to have regard to the recommendation of the probation
officer."
The
Magistrate responded as follows :
"As far as no (3) is
concerned there is no express mention that the report of the
probation officer was made available to the
accused on the trial
date, but the accused themselves confirm that the social worker
consulted with them. In view of the fact
that they admitted the
contents of the report, the magistrate was entitled to have regard
thereto conversely if the report was
not admitted, the magistrate
was then not entitled to have regard thereto, which is not the
situation in casu."
The
record at p39(19) - p41(25) reflects the following exchanges in
respect of the probation officer's report :
"
PROSECUTOR
:
Your worship in this matter probation officer's report
which
we requested, both of them are available (sic). Due to the fact
that this case was remanded previously, on a frequent basis
due to
the fact that accused 1's guardian was not present the probation
officer could not be here today. She was here previously
to dispose
of this matter. She could not be here due to some work load and she
is not present in the district of George your worship.
But the
probation officer's reports are available.
COURT
:
Given the length of this case, Mr Pedro and the fact that we have
got problems with the guardians attending court, what do you
request
or what is your opinion as far as this is concerned? Because we can
not just, you can not just hand in the report, the
witness must
testify and must hand it in and he must be cross-examined by the
accused.
PROSECUTOR
:
Yes the state is fully aware of the state of affairs your worship.
Your worship in this matter the only evidence which is contained
in
this report is the personal circumstances of the accused. The state
will... And the recommendation of this specific probation
officer.
If, the state has no objection if we can finalize this matter
without it. The state will just then read out the recommendation
when the state is addressing the court your worship.
COURT
:
Alright what you are saying is that the report is to the effect
that the accused must be given suspended sentences?
PROSECUTOR
:
A suspended sentence, your worship.
COURT
:
And their personal circumstances.
PROSECUTOR
:
That is correct your worship.
COURT
:
Gentleman the social worker is not available today. He has made
recommendations. He has consulted with you, according to the
state.
Do you confirm the social worker has consulted with you?
INTERPRETER
:
Yes your worship the social worker was with us.
COURT
:
Will you have some questions or will you dispute the contents of
the report as was made by her or him?
INTERPRETER
:
No your worship we shall not dispute the ... (interpreter).
COURT
:
Accused 2?
BESKULDIGDE
2
:
Nee.
COURT
:
Guardian, accused 1?
INTERPRETER
:
No, your worship.
COURT
:
Guardian, accused 2?
INTERPRETER
:
No, your worship.
COURT
:
Mr Pedro will you just read the recommendations of the social
worker and hand it in by mutual consent.
PROSECUTOR
:
As it pleases the court. Your worship the first accused is
Reginald Buys. Your worship I must just make it clear that due to
the fact that the accused was previously, has been assessed and a
probation officer's report was previously compiled for this accused,
for, his personal circumstances did not change. A recommendation
has been made that he be given a sentence in terms of section
276(1)(b) of the criminal procedure act, which is a totally
suspended sentence your worship. For accused 2 the recommendation
by Mrs Campher is also a sentence in terms of section 276(1)(b), of
sub-section b of the criminal procedure's (sic) act. Your
worship
this is also a suspended sentence, wholly suspended sentence.
COURT
:
The probation officer's report in respect of accused 1 will be
handed in as EXHIBIT B, accused 2, EXHIBIT C. Gentleman you know
(sic) have got an opportunity to address the court in mitigation of
sentence. You can do that by addressing the court from where
you
stand. You also have got a right to call witnesses in mitigation of
sentence. You may go to the witness box to mitigate.
Do you
understand that.
INTERPRETER
:
Your worship we are going to address the court from where we stand.
We are going to call our guardians to plead for mitigation
for us
your worship."
It is abundantly clear that
the Magistrate was persuaded to continue in the absence of the
probation officer (despite his earlier
reservations) by the
suggestion of the prosecutor that only the recommendations of the
probation officer be used for the purpose
of sentence. The
prosecutor intimated that the recommendation was for a wholly
suspended sentence. The necessary implication
was that the course
suggested cannot prejudice the Accused, since the recommendation was
favourable to them. This was, of course,
not an accurate reflection
of the recommendation actually made, namely that Accused no. 1 be
dealt with in terms of Section 276(1)(b)
i.e. direct imprisonment
(exhibit "B" dated 29 January 2002) as well as Accused no.
2 (exhibit "C" dated 29
January 2002 pg 6).
While
there could very well be justification for a trial court to allow a
probation officer's report to be handed in by agreement
between the
prosecution and defence without leading the evidence of the
probation officer, the trial court erred, in my view, in
adopting
that course in this matter. Both Accused are youthful and
unrepresented and there is no indication that they were ever
furnished with the probation officer's report or recommendations
beforehand or fully appreciated the import of the course adopted
by
the trial court in regard to the report. The fact that the
probation officer interviewed the Accused for the purpose of
preparing
the report, was obviously no indication that they were
aware of the contents of the report, let alone the recommendations
of the
probation officer, that they be sentenced to direct
imprisonment. This conclusion is reinforced by the fact that the
Accused and
their guardians asked for a non-custodial sentence or
for mitigation of their sentences.
The
fundamental right of an accused to a fair trial in terms of Section
35(3) of the Constitution, Act 108 of 1996 extends to all
aspects of
the trial, including the sentencing stage. Fundamental to this
right is the need for justice to be done and seen to
be done
(cf
S v Dzukuda & Others; S v Tshilo 2000(4) SA 1078 (CC) para
11)
.
The failure to furnish the Accused with the recommendations of the
probation officer, particularly where they are adverse to
the
Accused as in the present matter where direct imprisonment was
recommended for youthful offenders or where the recommendations
are
to be implemented by the trial court, is unfair and amounts to a
violation of the Accused's rights in terms of Section 35(3).
The value
of a probation officer's report with regard to sentencing in the
case of youthful offenders cannot be over-emphasised
(cf.
S v C 1973(1) SA 739 (C) at 742 D-E; S v Adams 1971(4) SA 125
(C) at 126 G-H, 127 F-G; S v H & Another 1978(4)
SA 385 (E)
at 386 D-E)
.
That value, however, does not lie in an uncritical acceptance of
the contents of the report, particularly its recommendations.
It
is apposite in this regard to refer to the following instructive
exposition of the purpose of a probation officer's report
given by
Smalberger, J (as he then was) in
S
v H (supra at 386 C-E) :
"The purpose of a
probation officer's report is to provide a court with all available
information which will assist in understanding
the problems of the
juvenile being dealt with, thereby enabling the court to determine
an appropriate punishment in all the circumstances.
(S v Adams
1971(4) SA 125 (C).) The probation officer's recommendation is
merely an expression of opinion for the guidance of
the court.
Where necessary, it must be tested and subjected to critical
analysis. The ultimate responsibility for the determination
of a
proper sentence rests with the presiding judicial officer. In order
to exercise his discretion in this regard he must apply
his mind
judicially to all relevant considerations affecting sentence. He
must not slavishly follow the recommendation of the
probation
officer, and merely substitute the latter's view for his own."
In this
matter the Accused fortuitously benefited from a misreading of the
actual recommendations of the probation officer. The
uncritical and
slavish acceptance of the recommendations would have resulted in the
direct imprisonment of the Accused, both youthful
offenders, for a
not too serious offence but for the misdirection about the actual
recommendation. The following approach ordered
in
S
v H (supra at 387 A-E)
should at the very least, also have been followed in this matter :
"(a) Ensure the
presence of the accused's parent or, at least, the mother of each
accused;
(b) ....
(c) allow the parent or
parents of each accused present the opportunity of questioning the
probation officer in relation to her
investigations and
recommendations;
(d) afford
the parent or parents of each accused present the opportunity of
giving or leading evidence relative to the recommendations
of the
probation officer;
(e) call for such further
evidence or investigation as [the magistrate] considers necessary to
arrive at a proper sentence;"
Inspite
of the abovementioned misdirection in regard to the probation
officer's report, the sentence imposed upon Accused no. 2
is not
inappropriate, in my view. The trial court justified the
differentiation in the sentences of the two Accused basically
on the
grounds that Accused no. 1 was not a first offender and had been
convicted of two counts of malicious injury to property
(count 2
wrongly assumed to have been committed on the same day as count 1).
In view of the conviction in respect of count 2 now
having fallen
away, it is necessary to reconsider the sentence to be imposed on
Accused no. 1. In my view no useful purpose would
be served by
remitting the matter to the trial court to reconsider sentence in
respect of Accused no. 1. It is in the interests
of justice to
dispose of the matter at this stage.
The
relevant facts indicate that both Accused played a similar but
limited role during the incident. Accused no. 1, in fact, tried
to
stop one of the co-perpetrators from breaking the windows of the
house. The Accused were the same age. Although Accused no.
1 did
not have a clean record, he had no previous conviction for malicious
injury to property. In the circumstances it is not
justified to
differentiate between the Accused for the purpose of sentence in the
present matter.
In
the result the convictions of both Accused are confirmed in respect
of count
1 and the conviction of
Accused no. 1 on count 2 is set aside. The sentence imposed on
Accused no. 1 is set aside and substituted
with the following
sentence :
"A fine of R600-00
(six hundred rand) or 90 (ninety) days imprisonment which is wholly
suspended for a period of 3 (three)
years on condition that he is
not convicted of malicious injury to property committed during the
period of suspension."
_______________________________
DENZIL
POTGIETER, A.J.
I
agree. _______________________________