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[2019] ZASCA 35
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Segwati v S (620/2018) [2019] ZASCA 35 (29 March 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
no: 620/2018
In
the matter between:
ISHMAEL
BLESSING
SEGWATI APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Segwati
v The State
(620/2018)
[2019] ZASCA 35
(29 March 2019)
Coram:
Ponnan
and Leach JJA and Mokgohloa AJA
Delivered:
29
March 2019
Summary
:
Criminal Procedure – sentence – appellant’s
previous convictions impermissibly taken into account despite
s 271A
of the
Criminal Procedure Act 51 of 1977
– parties agreed
sentence imposed at first instance cannot stand.
ORDER
On
appeal from:
Guateng
Division of the High Court, Johannesburg (Borchers and Bam JJ
concurring, sitting as a court of appeal):
1 The appeal is
upheld.
2 The order of the
court
a quo
is set aside and replaced with the following:
‘
The applicant
is granted leave to appeal to the Gauteng Division of the High Court,
Johannesburg solely against the sentence imposed
upon him for his
convictions of theft or attempted theft.’
JUDGMENT
Leach
JA (Ponnan JA and Mokgohloa AJA concurring):
[1]
The appellant was convicted in the regional court on a charge of
theft and a further charge of attempted theft. The complainant
on
each count was the Emperor’s Palace Casino in Kempton Park, by
whom he was employed at the time. The amounts involved
were
considerable: he stole R800 000 and attempted to steal a further
R200 000, both offences having been committed on
the same day.
The appellant had a number of petty convictions for theft and fraud
committed more than 14 years previously. In consequence,
the trial
court regarded the appellant as being a third offender as envisaged
by
s 51(2)
(a)
(iii)
Act 105 of 1997 which attract a prescribed minimum sentence of 25
years’ imprisonment, and imposed that sentence upon
the
appellant. An application under s 309B of the Criminal Procedure Act
51 of 1977 (the CPA) for leave to appeal against both
conviction and
sentence was refused. The appellant then petitioned the Gauteng
Division of the High Court for leave to appeal under
s 309C of
the CPA. This application was dismissed by the court
a
quo
(Borchers and Bam JJ) on 21 October 2014.
[2]
The refusal of an application for leave to appeal against a high
court’s refusal of a s 309C application is appealable
with a
special leave of this Court –
Van
Wyk v The State; Galela v The State
2015 (1) SACR 584
(SCA);
[2014] ZASCA 152.
As a last resort, the
appellant therefore petitioned this Court, and special leave to
appeal was granted, albeit in respect of
sentence only. At the same
time the parties were requested to file written argument and to
indicate whether they had any objection
to this Court dealing with
the appeal under
s 19
(a)
of the
Superior Courts Act 10 of 2013
. Both sides were amendable to
such a procedure. In this way the matter came before this Court and
will now be finalised.
[3]
It is necessary to remember that what is before this Court is the
refusal of the appellant’s application for leave to
appeal by
the high court. The appeal itself is not before this Court, and it
cannot make an order relating to the appellant’s
sentence even
if, as in this case, interference is obviously justified. The merits
of the appeal are therefore relevant only in
so far as reasonable
prospects of success are concerned.
[4]
I make this remark as the respondent has conceded that the appeal
must succeed. As already mentioned, the trial court regarded
the
appellant as a third offender who therefore faced a prescribed
minimum sentence of 25 years’ imprisonment. In doing so,
it
overlooked that the appellant’s last previous conviction had
taken place more than 14 years before he committed the present
offences. All his previous convictions related to offences as
envisaged in
s 271A
of the CPA, and in these circumstances such
previous convictions ‘shall fall away as a previous conviction’
in terms
of that section. Presumably both the magistrate and the high
court overlooked this, but the parties are therefore agreed that the
magistrate erred in imposing what he viewed was a prescribed minimum
sentence and that a lesser sentence would be appropriate.
[5]
Accordingly the high court clearly erred in dismissing the
appellant’s petition for leave to appeal. Although the
convictions
were indisputable, it ought to have granted leave to
appeal against the sentence. To this extent, its order cannot stand.
[6]
The parties in a written argument attempted to persuade this Court to
impose what it viewed would be the appropriate sentence.
However, as
I have said, and is apparent from various judgments in this Court,
including eg
S
v Matshona
2013 (2) SACR 126
(SCA) para 4 and
S
v Tonkin
2014 (1) SACR 583
(SCA), this Court can do no more than interfere
with the order of the court
a
quo
refusing the application for leave to appeal. It cannot determine the
merits of the appeal itself. That appeal will have to be
determined
in the high court which ought to have granted leave to appeal to it.
[7]
It is therefore ordered:
1 The appeal is
upheld.
2 The order of the
court
a quo
is set aside and replaced with the following:
‘
The applicant
is granted leave to appeal to the Gauteng Division of the High Court,
Johannesburg solely against the sentence imposed
upon him for his
convictions of theft or attempted theft.’
________________
L
E Leach
Judge
of Appeal
Appearances:
For
the Appellants: J L Hattingh
Instructed
by: Wentzel & Partners Attorneys, Kempton Park
Symington
& De Kok Attorneys, Bloemfontein
For
the Respondent: K T Ngubane
Instructed
by: Director of Public Prosecutions, Johannesburg
Director
of Public Prosecutions, Bloemfontein