THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO. 042/2004
In the matter between
LOUIS VAN DYK Appellant
and
THE STATE Respondent
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CORAM: STREICHER, NAVSA, NUGENT JJA
et JAFTA, PATEL AJJA
HEARD: 2 SEPTEMBER 2004
DELIVERED: 29 SEPTEMBER 2004
___________________________________________________________
Summary: Sentence – offender found in possession of 378 abalone –
sentenced to 18 months’ imprisonment in terms of s 276 (1)(i) of Act 57
of 1977 – whether correctional supe rvision could be imposed for a
statutory offence if the statute in terms of which the offender was
convicted did not provide for such sentence but provided for a fine or
imprisonment.
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JUDGMENT
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JAFTA AJA
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[1] This appeal concerns the interp retation of s 276 of the Criminal
Procedure Act 51 of 1977 (‘the Act’). The section provides:
‘(1) Subject to the provisions of this Act and any other law and of the common
law, the following sentences may be passed upon a person convicted of an offence,
namely –
(a) ...
(b) imprisonment, including imprisonment for life or imprisonment for an
indefinite period as referred to in section 286 B(1);
(c) periodical imprisonment;
(d) declaration as an habitual criminal;
(e) committal to any institution established by law;
(f) a fine;
(g) ...
(h) correctional supervision;
(i) imprisonment from which such a person may be placed under
correctional supervision in his discretion by the commissioner.
(2) Save as is otherwise expressly provided by this Act, no provision thereof shall
be construed –
(a) as authorising any court to impose any sentence other than or any
sentence in excess of the sentence which that court may impose in
respect of any offence; or
(b) as derogating from any authorit y specially conferred upon any court
by any law to impose any other punishment or to impose any forfeiture
in addition to any other punishment.
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(3) Notwithstanding anything to the contrary in any law contained, the provisions
of subsection (1) shall not be construed as prohibiting the court –
(a) from imposing imprisonment together with correctional supervision; or
(b) from imposing the punishment referre d to in subsection (1)(h) or (i) in
respect of any offence.’
[2] The appellant, Louis van Dyk, was convicted in the magistrates’
court at Hermanus on three charge s of possessing a nd conveying 378
abalone in contravention of Regulati ons 9, 36 (1) and 38 (3)(b) of the
regulations published on 2 Septembe r 1998 under Gove rnment Notice
R1111 (‘the regulations’) read with s 58 (4) of the Marine Living
Resources Act 18 of 1998. Regulation 96 thereof provides:
‘Any person who contravenes or fails to comply with any provision of these
Regulations shall be guilty of an offence and liable on conviction to a fine or
imprisonment for a period not exceeding two years.’
[3] The appellant was convicted on the basis of his plea of guilty. In
his plea explanation he admitted that he was arrested on 14 April 1999
while in possession of 378 abalone which he transported in a motor
vehicle. In terms of the regulations it is an offence for one person to
possess more than 20 abal one and to transport more than 4 abalone in a
motor vehicle.
[4] The appellant’s counsel submitte d before the magistrate that a
sentence of correctional supervisi on in terms of s 276 (1)(h) was an
appropriate sentence. The magistrate, quite correctly, considered himself
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bound by the interpretation of s 276 of the Act by th e Cape High Court in
S v Daniels 2000 (1) SACR 256 (C ). In accordance with that decision
correctional supervision could not be imposed for a statutory offence
unless the penalty provision of that st atute provided for it as a sentencing
option. Consequently the magistrate sentenced the appellant to 18
months’ imprisonment in terms of s 276 (1)(i) of the Act.
[5] The appellant appealed to the Cape High Court. It was contended
on his behalf that the case of Daniels was incorrectly decided and the
High Court was urged to depart from it. After considering the decisions in
S v Strydom and another 1994 (2) SACR 456 (T); S v Lowis 1997 (1)
SACR 235 (T) and S v Philander 1997 (2) SACR 529 (C), the Cape High
Court reaffirmed the ratio in the Daniels case. It construed s 276 (2)(a) to
mean that a trial court is not author ised to impose a sentence other than
the sentence prescribed by the penalty provision in a statute. The Cape
High Court then dismissed the appeal but granted leave to appeal to this
court.
[6] In granting leave to appeal, the co urt below restricted the appeal to
the issue of whether or not a sentence of correctional supervision could be
imposed for a statutory offence if the penalty provision of the statute did
not provide for correctional supervisi on. The answer to this question lies
in the interpretation of s 276 of the Act. But, a brief analysis of the High
Courts’ decisions is necessary before construing the section.
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[7] In Daniels Knoll J (with whom Traverso J concurred) stated at 258
b-f:
‘In my view, the original correctional supervision sentence of 36 months was not a
competent sentence. The accused was found guilty of a statutory offence. The penal
provision contained in s 50 (3) of Act 74 of 1983 reads as follows:
“Any person convicted of any offen ce under this section shall be liable
to a fine not exceeding R20 000,00 or imprisonment for a period not
exceeding five years or to both such fine and such imprisonment.”
There is no provision in this section, nor anywhere else in the Child Care Act, for a
sentence of correctional supervision in terms of s 276 (1)(h).
In S v Strydom and Another 1994 (2) SACR 456 (W) at 462 b-d, Cloete J held that
where a statutory provision refers only to imprisonment, a fine or correctional
supervision or any other sentence besides imprisonment may not be imposed.
This Court, in an unreported judgment dated 9 April 1999, in the matter of S v Warren
Oscar Abrahams, followed the decision of S v Strydom (supra) inter alia and found, at
p 8 thereof, that correctional supervisi on under s 276 (1)(h) of Act 51 of 1977 cannot
be imposed for a statutory offence, unless the relevant statute creating the offence
provides for such sentence.
Accordingly, the sentence of correctional supervision imposed should not have been
imposed and, in my view, in the exercise of this Court’s inherent review jurisdiction,
should be set aside.’
[7] A similar approach was followed in the Lowis and Philander cases.
In Lowis the accused was convicted of contravening s 34 (1)(b) of the
South African Reserve Bank Act 90 of 1989 which provided for
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imprisonment only as punishment fo r contravening the section. The
magistrate had sentenced him to 3 year s’ imprisonment in terms of s 276
(1)(i) of Act 51 of 1977. On appeal the accused asked for correctional
supervision to be imposed. Van Dyk J (with the concurrence of McCreath
J) held that where the Legislature had prescribed a sentence of
imprisonment without the option of a fine for a specific offence, a
sentence of correctional supervisi on was not competent because it was
not a sentence intended for the offence by the Legislature.
[8] In Philander, Conradie J (with whom Traverso J concurred) held
that in the light of the decision in Strydom, it was doubtful whether
correctional supervision could be imposed in cases where a penal
provision did not provide for it as a sentencing option.
[9] I shall now deal with s 276 of th e Act. The correct interpretation of
the section must be determined from the context of s 276 as a whole. It is
headed: ‘Nature of Punishments’. Section 276 (1) lists, in general terms,
various forms of punishment availa ble for consideration and imposition
by a court which has convicted a person of an offence either in terms of a
particular statute or under the common law. The use of the words ‘subject
to’ at the beginning of subsec (1) in dicates that the subsection will be
subservient to any provision of th e common law, the Act or another
statute in case of conflict (cf S v Marwane 1982 (3) SA 717 (A) at 747H –
748B).
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[10] Subsection (2) states that no provi sion of the Act (thus including s
276 (1)) should be construed as aut horising a court to impose a sentence
in lieu of the sentence it may impose for a particular offence nor should
the Act be construed as giving authority to a court with limited penal
jurisdiction to impose a sentence in excess of such jurisdiction. The
subsection provides further that the Act should not be interpreted as
derogating from authority specially conferred by any l aw upon courts to
impose other punishments.
[11] The interpretation process does not end with the reading of subsecs
(1) and (2). One must take a step fu rther and consider subsec (3). This
subsection states that subsec (1) s hould not be construed as prohibiting a
court from imposing correctiona l supervision in respect of any offence.
Subsection (1), when read in isolation, does not purport to prohibit a court
from imposing correctional supervis ion in respect of any offence.
Subsection (3), insofar as it refers to subsection (1), would thus be
meaningless if it were to be construed as referring to that subsection in
isolation. In order for the refere nce in subsection (3) to have any
meaning, it must have been intende d to refer to subsection (1) as
construed in accordance with the provis ions of subsectio n (2). In other
words, what subsection (3) must mean – if it is to have any meaning at all
– is that the provisions of subsecti on (1) when construed in accordance
with subsection (2) are not to be construed as prohibiting a court from
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imposing correctional supervision in re spect of any offence. It follows
that correctional supervision may, in appropriate circumstances, be
imposed notwithstanding the fact that the penal provision of a particular
enactment provides for other sentences, with no reference being made in
such enactment to correctional supervision.
[12] The interpretation of s 276 set out in the preceding paragraph is
consistent with a number of decisions of this court. See S v E 1992 (2)
SACR 625 (A); S v R 1993(1) SACR 209 (A); S v Keulder 1994 (1)
SACR 91 (A); S v W 1994 (1) SACR 610 (A) and S v Siebert 1998 (1)
SACR 554 (A). In the first two case s the accused wer e convicted of
sexual offences in contravention of s 14(1) (b) of the Sexual Offences Act
23 of 1957. Section 22 (f ) of that Act prescribed, for such offences, a
sentence of ‘imprisonment for a period not exceeding six years with or
without a fine not exceeding R12 000 in addition to such imprisonment’.
Notwithstanding the prescribed sent ence of imprisonment, this court
concluded that correctional supervis ion was a suitable punishment in
those cases.
[13] Having found that correctional supervision is not excluded in
matters such as the present one, it becomes necessary to determine
whether such punishment is appropriate in this case. Ordinarily this
enquiry requires the presen ce of a report by a probation officer dealing
with the suitability of the accuse d as a candidate for correctional
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supervision. Since the magistrate held the view that correctional
supervision was excluded, we were de nied the benefit of such report.
However, I shall assume in the appellan t’s favour that he is a suitable
candidate for correctional supervision, and as a result there is no need for
referring the matter to the magistra te to enable su ch report to be
presented, before considering the is sue of sentence af resh. Indeed, the
appellant’s counsel conceded that he would suffer no prejudice should
such a course be undertaken.
[14] The appellant was 26 years old at the time of his conviction. He
was married and had a young child. He was not employed. He made a
living from subsistence fishing.
[15] He was not a first offender as he had been convicted of the same
offence a month before he committe d the present offences. On 10 March
1999 he was sentenced to R8 000 or 8 months’ imprisonment, half of
which was suspended for 4 years on condi tion that he is not convicted of
the same offence committed during th e period of suspension. However,
only one month elapsed before the a ppellant committed the offences he
was warned not to commit for a period of four years in terms of the
suspended sentence. Obviously the su spended sentence had no deterrent
effect on him. The quantity of abalone found in his possession exceeded a
quantity for personal consumption. As a result his counsel had to concede
that it can be inferred that the appellant dealt in abalone.
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[16] In the circumstances of the present case, I am satisfied that
correctional supervision is not a su itable punishment. The sentence
imposed by the magistrate is appropriate. Therefore, the appeal must fail.
[17] Accordingly, the appeal is dismissed.
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C N J A F T A
ACTING JUDGE OF APPEAL
STREICHER JA )
NAVSA JA )CONCUR
NUGENT JA )
PATEL AJA )