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[2019] ZASCA 179
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Khobane v S (1255/2017) [2019] ZASCA 179 (2 December 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 1255/2017
In the matter between:
DONALD
KHOBANE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Donald Khobane
v
The State
(1255/2017)
[2019]
ZASCA 179
(02
December 2019)
Coram:
Cachalia, Saldulker and Mokgohloa JJA, Tsoka
and Dolamo AJJA
Heard:
13 November
2019
Delivered:
02 December 2019
Summary
:
Whether failure to refer to the minimum sentence legislation in the
charge sheet prejudiced the appellant – whether such
failure
infringed on the appellant’s right to a fair trial –
special leave in terms of
s 17(1)(b)
of the
Superior Courts Act 10 of
2013
having been granted – special circumstances not
established – appeal struck off the roll.
ORDER
On
appeal from:
Gauteng Division of the High
Court, Johannesburg (Ismail J and Rome AJ sitting as a court of
appeal):
The
Appeal is struck from the roll.
JUDGMENT
Dolamo
AJA (Cachalia, Saldulker and Mokgohloa JJA, Tsoka AJA concurring)
[1]
This matter has been meandering through the courts since 2012, after
the appellant was convicted of
theft in the regional court and
sentenced to 15 years’ imprisonment. The appeal is against
sentence only, the appellant having
been granted special leave by
this court.
[2]
The appellant, was convicted by the Alexandra Regional Court
(Magistrate Mr Schnetler) on one count
of theft of R3 million from
Nedbank, where he was employed. He was sentenced to 15 years
imprisonment. The sentence was imposed
in terms of s 51(2) of the
Criminal Law Amendment Act 105 of 1997 (the CLAA). The trial court
found no substantial and compelling
circumstances to deviate from the
minimum prescribed sentence.
[3]
The salient facts which gave rise to the appellant’s conviction
and sentence are as follows: the
appellant was employed by Nedbank as
an ‘ATM consultant’. He was responsible for replenishing
cash in the various ATMs
under his control in and around
Johannesburg. For this purpose he was issued with keys and
combination numbers to enable him to
unlock and access these
machines. On 30 July 2009, after the appellant had failed to report
for work, his colleagues took over
and attended to the ATMs which
were under his jurisdiction and control. His absence led to the
discovery, by his colleagues, of
a shortfall from the various
machines of more than R3 million.
[4]
The appellant never returned to work and was eventually arrested on
19 August 2009 in KwaZulu Natal.
He was brought back to Gauteng
where, on 24 August 2009, he made a confession to Captain Robson of
the South African Police Service.
In the confession he admitted to
the theft of the missing money. The appellant, however, claimed to
have been under the influence
of a so-called spiritual healer known
as ‘Professor Zao’; that it was this trickster who told
him that he (the appellant)
had a ‘symbol of wealth’ in
his hands; that he must take out from the ATMs as much money as he
can, so that ‘Zao’
would use the money to cleanse him,
and after this cleansing, the appellant would never again experience
financial problems and
thereafter, the appellant would return the
money back to the ATMs.
[5]
In the trial the appellant disavowed his confession. He challenged
its admissibility on the ground that
it was not freely and
voluntarily made. After a trial-within-a-trial, the magistrate ruled
the confession admissible. This confession
and the evidence of other
witnesses led to the appellant’s conviction of theft and the
sentence of 15 years’ imprisonment.
[6]
Immediately after his conviction and sentence on 4 September 2012 the
appellant, who enjoyed legal representation
throughout the trial,
applied for leave to appeal in terms of s 309B of the Criminal
Procedure Act 51 of 1977 (the CPA). The application
was summarily
dismissed by the magistrate. After the dismissal of his application,
the appellant petitioned the high court in terms
of s 309C of the CPA
for leave to appeal but was also unsuccessful. His appeal against the
dismissal of his petition was met with
the same fate. He thereafter
applied to this court in terms of s 20(4)(b) of the now repealed
Supreme Court Act 59 of 1959
[1]
for leave to appeal the dismissal of his petition. Such leave to
appeal was granted on 8 September 2015, but only against sentence.
[7]
Pursuant to leave to appeal against sentence being granted, this
court heard the appeal against the
dismissal by the high court of the
application for leave to appeal against the sentence, and on 26
September 2016 the following
order was granted:
‘1. The appeal is
upheld.
2. The order of the
court below refusing leave to appeal is set aside and replaced
with
the following:
Leave to appeal to the Gauteng Local Division of the High Court,
Johannesburg, is granted’.
[2]
[8]
Armed with the order from this court the appellant returned to the
high court where he prosecuted his
appeal against sentence. The
appeal was heard in the high court (Ismail J and Rome AJ) and was
subsequently dismissed. This, however,
did not deter the appellant as
he again applied to this court, in terms of s 16(1)(b) of the
Superior Courts
Act 10 of 2013 for special leave
to appeal against sentence. Special leave was granted on 27 October
2017. It is this appeal that
we are seized with.
[9]
The question for determination is whether there are special
circumstances for this court to hear the
appeal against sentence.
[10]
An appeal against any decision of a Division on appeal to it, lies to
the Supreme Court of Appeal (SCA) upon special
leave been granted by
the SCA
[3]
.
In
S v Van Wyk
[4]
it was held that an applicant for special leave must show:
‘…in addition to the ordinary requirement of reasonable
prospects of success, that there are special circumstances
which
merit a further appeal to this court. This may arise when in the
opinion of this court the appeal raises a substantial point
of law,
or where the matter is of very great importance to the parties or of
great public importance, or where the prospects of
success are so
strong that the refusal of leave to appeal would probably result in a
manifest denial of justice.’
[11]
Did the appellant in this matter meet the requirements as set out in
the case of
Van Wyk supra
? A brief assessment of the merits
shows that the appellant did not meet these stringent requirements.
[12]
The appellant attacks the sentence of 15 years’ imprisonment on
two fronts: in the first place, he argued
that he was never warned
that he faced a sentence of 15 years’ imprisonment in terms of
s 51(2) of the CLAA. In the second
place, he submitted that the
sentence was shockingly inappropriate.
[13]
The appellant’s first challenge to the sentence of 15 years’
imprisonment is premised on the assumption
that the charge sheet did
not forewarn him of the provisions of s 51(2) of the CLAA that, on
conviction, he faced the prospects
of a sentence of 15 years’
imprisonment unless the court found the existence of substantial and
compelling circumstances
justifying a deviation from the prescribed
minimum sentence. I pause to state that the portion of the mechanical
recording of the
proceedings in the regional court relating to the
charges being put to the appellant, his concomitant plea and his
admissions and
warnings by the court, if any, were not transcribed
and as such are not part of the record. We are accordingly not privy
to what
had transpired at that stage of the proceedings. It is,
however, common cause between the parties that the charge sheet made
no
reference to the provisions of s 51(2) of the CLAA, nor was the
appellant warned at the commencement of the proceedings that he
faced
the prospects of a minimum sentence. However, during the sentence
proceedings the issue of the applicability of the positions
of s51(2)
of the CLAA and the existence or lack of substantial and compelling
circumstances arose. It is on this basis
that the matter
was dealt with in the court below, and it is on the same basis that
it is dealt with in this court.
[14]
The appellant submitted in the court below that it would not be
appropriate at all to apply the provisions of the
CLAA where this was
not brought to his attention at the start of the proceedings. He
sought to find support for his contention
in the judgments of this
court, in particular in
S v Kolea
[5]
,
where it was held that if the State intends to rely on the minimum
sentencing regime created in the CLAA, this should be brought
to the
attention of the accused at the outset of the trial. Since this was
not the case in this matter, the appellant argued, that
he did not
enjoy a fair trial and that he was prejudiced by this omission i.e.
the failure to refer in the charge sheet to s 51(2)
of the CLAA.
[15]
After reviewing the authorities on the question of whether failure to
refer to the provisions of the CLAA in the
charge sheet amounted to a
failure of justice and subsequently concluding that indeed it was a
serious irregularity, the high court
(Rome AJ) held that the enquiry
nevertheless was still whether the appellant had a fair trial, which
included an ability to present
evidence in mitigation of sentence or
in his approach to the sentence hearing. On a conspectus of all the
relevant circumstances,
the court below arrived at the conclusion
that appellant had not been prejudiced and the sentence was befitting
of the offence
and the personal circumstances of the appellant.
[16]
In this court, as in the court below, the appellant persisted with
his argument that the charge sheet did not make
reference to s 51(2)
nor were its provisions brought to his attention in any way; and that
as a result he did not enjoy a fair
trial and had consequently
suffered prejudice. Before us, counsel for the appellant, when
pressed, was unable to articulate the
prejudice allegedly suffered by
the appellant. In the end, he was constrained to only submit that the
sentence was shockingly inappropriate
and that the appellant was
entitled to a reduction of the sentence due to the protracted nature
of the process.
[17]
A review of the authorities on the fairness or otherwise of a trial
where the charge sheet omitted to mention the
applicable sections of
the CLAA are clear. In
S v Legoa
,
[6]
the appellant had pleaded guilty and was convicted of dealing in
216,3 kilograms of cannabis. Having found that the weight of the
cannabis brought it within the ambit of s 51(2)(a)(i), read with Part
II of Schedule 2, the trial court sentenced the appellant
to 15
years’ imprisonment. On appeal, the court held that one of the
specific fair trial rights of an accused is to be informed
of the
charge against him with sufficient detail as to enable him/her to
answer it. Cameron JA was, however, reluctant to lay down
a general
rule that the charge must in every case recite either the specific
form of the scheduled offence with which the accused
is charged or
the facts the State intends to prove to establish it. The learned
judge concluded that ‘whether the accused’s
substantive
fair trial right, including his ability to answer the charge, has
been impaired will therefore depend on a vigilant
examination of the
relevant circumstances’.
[7]
[18]
In
S v Ndlovu
[8]
the same sentiments as in
Legoa
were expressed. Mpati JA, held that the enquiry is whether, on a
vigilant examination of the relevant circumstances it can be said
that an accused had a fair trial. Their views were followed and
endorsed in the judgments of Ponnan JA and Petse AJA in
S
v Mthembu
[9]
and in
S v Mashinini
[10]
where Ponnan JA (in a minority judgment) held that the fair trial
enquiry does not occur in vacuo but is first and foremost a
fact-based enquiry.
[19]
In
Kolea
, the
appellant was charged with rape and convicted under s 51(2) of the
CLAA but the provisions of s 51(1) of the CLAA were invoked
to
sentence him to life imprisonment. Mbha AJA, obiter dictum, remarked
that:
[11]
‘[7] The accused’s right to be informed of the charge he
is facing, and which must contain sufficient detail to enable
him or
her to answer it, is underpinned by s 35(3)(a) of the Constitution,
which provides that every accused person has a right
to a fair trial.
The objective is not only to avoid a trial by ambush, but also to
enable the accused to prepare adequately for
the trial and to decide,
inter alia, whether or not to engage legal representation, how to
plead to the charge and which witnesses
to call. It follows that, if
the state intends to rely on the minimum sentencing regime created in
the CLAA, this should be brought
to the attention of the accused at
the outset of the trial. The question which must be answered though,
is what does sufficient
detail in the charge entail.’
But,
concluded that there was never any complaint, throughout the trial in
which the appellant was legally represented, that he
was in any way
prejudiced in the conduct of the proceedings. The appellant’s
reliance on
Kolea
’s case is therefore misplaced.
[20]
A reading of the trial record in the present matter belies the
appellant’s assertion that the application
of the minimum
sentence prescribed for the offence for which he was convicted was
not brought to his attention. The record shows
that as the
appellant’s legal representative was busy addressing the court
in mitigation of sentence, the magistrate interjected
and asked her
as follows:
‘COURT: Do you think there is any substantial or compelling
reasons why the court should deviate from the minimum sentence?’
To
which she replied by advancing the argument that appellant was
influenced to commit the offence by the trickery of the so-called
Professor ‘Zao’ who had promised him wealth if he were to
take money from the ATM. Appellant’s attorney went
further and
added:
‘we request the court to deviate from the minimum sentence. He
has already served a sentence from the day of his arrest up
until
today.
[21] It is evident from these extracts that
the appellant’s legal representative was aware of the
application of the
minimum sentencing regime. She was not taken aback
by the magistrate’s question nor did she display any
misunderstanding
of what was required of her in relation to advancing
substantial and compelling circumstances, which would justify a
deviation
from the minimum prescribed sentence. Instead, she was able
to advance the belief by the applicant in ‘Zao’ as to
constitute
substantial and compelling circumstance in an attempt to
persuade the court to deviate from the minimum prescribed sentence.
There
is accordingly no merit in the argument that appellant was
prejudiced by the non-reference to the provisions of s 51(2) of the
CLAA.
[22]
In the result I find that there are no special circumstances advanced
by the appellant justifying a further appeal
to this court.
Consequently, the following order is made:
The appeal is struck from the roll.
M J Dolamo
Acting
Judge of Appeal
APPEARANCES:
For the Appellants: P A Wilkins
Instructed by:
Juan Kotze Attorneys, Boksburg
c/o Ettienne De
Heus Attorneys, Johannesburg
Symington De Kok
Inc, Bloemfontein
For the Respondent: N Muller
Instructed by:
Director of Public Prosecutions, Johannesburg
Director of Public Prosecutions, Bloemfontein
[1]
Section 20(4)(b) provided
that: No appeal shall lie against a judgment and order of the court
of a provincial or local division
in any civil proceedings or
against any judgment or order of the court given on appeal to it
except
(a)
…
(b)
In any case with
the leave of the Court against whose judgment or order the appeal is
to be made or, where such leave has been
refused, with the leave of
the appellate division.
[2]
Khobane v S
[2016] ZASCA 124.
[3]
Section 16 (1)(b) of the
Superior Courts CLAA.
[4]
S v Van Wyk
2015 (1) SACR 584
(SCA) para 21.
[5]
S v Kolea
2013 (1) SACR 409
(SCA) para 7.
[6]
S v Legoa
2003 (1) SACR 13 (SCA).
[7]
Legoa
para 21.
[8]
S v Ndlovu
2003 (1) SACR 331
(SCA) para 12.
[9]
S v Mthembu
2012 (1) SACR 517
(SCA).
[10]
S v Mashinini
2012 (1) SACR 604
(SCA) para 18.
[11]
Kolea
fn 10 para 7.