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[2014] ZAWCHC 104
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Kok v S (14552) [2014] ZAWCHC 104; 2015 (2) SACR 637 (WCC) (2 July 2014)
THE REPUBLIC OF
SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
WESTERN CAPE
DIVISION, CAPE TOWN
[Reportable]
High
Court Ref. No.:14552
Case
No.: WRC 85/2009
DATE:
02 JULY 2014
In the matter
between:
ANTHONY
KOK
.......................................................
Applicant
And
THE
STATE
..........................................................
Respondent
REVIEW
JUDGMENT: 2 JULY 2014
Background:
[1] This is a
Special Review in terms of the provisions of Section 304(4) of the
Criminal Procedure Act 51 of 1977 (“the Act”).
This
matter was referred to the High Court directly by the accused who was
incarcerated in the Worcester Correctional Services
Centre. He was
convicted on a charge of theft of R98 668,98
1
on 20 June 2012 and was sentenced on 10 August 2012 to a period of
five (5) years imprisonment that was further suspended for
a period
of 5 years on condition that, he is not convicted of an offence of
theft, or any offence involving an element of dishonesty
during the
period of suspension. The accused was furthermore ordered to pay the
complainant, the entire amount of R98 682,98 by
the 31 July 2013.
[2] On 1 August
2013, the accused was arrested and brought before the Regional Court
in Worcester due to his failure to adhere to
the condition of
suspension that he pay the amount of R98 682,98 by 31 July 2013. The
State brought an application in terms of
the provisions of Section
297 (9)(a) of the Act for the suspended sentence to be put into
operation. This resulted in the court
putting the suspended sentence
into operation, and the accused was sentenced to undergo a term of
imprisonment of five (5) years.
[3] The accused
thereafter on 27 November 2013 applied for leave to appeal against
the original sentenced imposed to the court a
quo, such leave was
refused. On petition to this court leave was granted by Goliath J
and Schippers J on 25 February 2014. Before
the matter was set down
for the appeal to be heard, the accused in a letter dated 23 May 2014
to the Registrar, requested that
this matter be placed for
consideration on review on 29 May 2014.
[4] Attached to his
review documents he filed an affidavit in which he stated that during
the sentencing proceedings in the Regional
Court, after he pleaded
guilty to theft, his attorney tendered a document on his behalf that
he repay the amount stolen of R98
682,98 in instalment. According to
the Appellant, the Regional Magistrate interrupted his attorney and
informed him, that in terms
of the Public Finance Management Act,
No.1 of 1999 (“PFMA”) money due to the State must be paid
within a year. This
prompted the Magistrate to impose as a condition
of his suspended sentence, that he repays this money within a year.
The accused
was unable to pay this amount in a year because of
financial difficulties, and this resulted in him being in breach of
the condition
of suspension. As a result of his failure to pay this
amount the suspended sentence was imposed.
[5] After a perusal
of the record, the allegation made by the accused proved to be
correct. As a result of this, an order was issued
on 13 June 2014 by
myself that the accused be released forthwith, unless there are other
reasons for his further incarceration.
Upon a further perusal of the
record of the proceedings in the Regional Court, I am of the view
that the conviction of the accused
by the Regional Magistrate on the
charge of theft needs to be reconsidered.
[6] The Proceedings
in the court a quo, prior to conviction
The accused was
charged in the Regional Court in Worcester on one count of fraud in
that, or during March 2008 in Adderley Street,
Worcester he
unlawfully and falsely gave out to the GEPF, the SAPS, and the High
Court of South Africa, that he was entitled to
receive an amount of
R98 682,98 from the GEPF or the South African Police Services and
therefore, by means of the said false pretences
induced the GEPF and,
or High Court of South Africa and the South African Police Services
to pay out an amount of R98 682,98.
Whereas, in fact, he knew that
he was not entitled to receive the amount of R98 682,98 from the said
GEPF or SAPS. The accused
was not charged in the alternative of
theft of the amount of R98 682,98.
[7] The Prosecutor,
however before the accused was asked to plead, requested the court to
confirm from Mr Maritz the attorney of
the accused whether the
provisions of Section 256 of the Act in the words of the prosecutor
at page 51 – 52 where he said
… “regarding the
competent verdict … as well as the common law offence of theft
which is also a competent verdict”,
to which the Magistrate
reacted as follows: “Mr Maritz, did you explain to your client
that he can also be found, if not
found on the main count, he can
also be found guilty on the competent verdict”, to which Mr
Maritz replied that he did.
The accused pleaded not guilty to the
charge and did not tender any explanation of plea.
[8] The allegations
upon which the fraud charge is based is, that the accused after he
was dismissed from the South African Police
Services (SAPS), was
indebted to the SAPS in an amount of R100 352,34. The SAPS requested
the Government Employee Pension Fund
(GEPF) to deduct the amount of
R100 352,34 indebted to it by the accused from his pension benefit
due to him. The accused launched
an application to the High Court to
interdict the GEPF and or the SAPS from deducting the said amount
from his pension. This application
was dismissed. The gist of the
allegations is that the accused fraudulently and without the
knowledge of the SAPS obtained an
order from the High Court which
stated that the SAPS had no claim against his pension benefit.
According to this alleged false
order the GEPF was ordered to pay out
the pension benefit in full to the accused, whereupon an amount of
R98 687,98 was paid out
fraudulently to the accused according to the
State.
[9] In order to
prove these allegations, the trial proceeded and a number of
witnesses testified for the State. At some stage,
Mr Maritz, who
appeared on behalf of the accused withdrew as attorney of record. The
accused conducted his own defence for a while
and on 20 June 2012,
the accused required the services of Mr Kroukam. Mr Kroukam informed
the court that the accused wanted to
make admissions in terms of the
provisions of Section 220 of the Act. He however maintained that he
did not commit the offence
of fraud, and that he did not make any
false representations to the complainants. He further conveyed to
the court that he had
reconsidered the facts and said (sic) …
“do I admit that I am guilty of the competent verdict toward
theft”.
[10] Although he was
no party thereto, he admitted that the GEPF had paid the amount of
R98 663,45 into his bank account. He further
admitted, that he used
the money for his own purposes, and thereby committed the offence of
theft. He further tendered to repay
this amount to the State by
means of instalments.
[11] The Conviction
and Sentence
In this Special
Review the main complaint of the accused against the proceedings
before the Regional Court was as follows:
1) He committed a
material error in law, which constituted a gross irregularity as
envisaged in section 24 of the Supreme Court
Act, 59 of 1959,
alternatively the common law, when he held that the money due to the
State must be repaid within one year (twelve
months) in terms of the
Public Finance Management Act, 1 of 1999, as amended “the
PFMA”). The
Public Finance Management Act does
not contain
such a provision.
2) According to the
accused, the assertion made by the learned Magistrate tainted the
entire sentencing procedure as he relied on
“a provision of law
that does not exist” on 8 August 2012 when he imposed the
sentence and held that he must repay
the money to the complainant on
or before 31 July 2013. He submitted that there is a direct nexus
between the sentence handed
down on 8 August 2012 and 2 August 2013,
when the suspended sentence were put into operation, and therefore
submitted that neither
the sentence on 8 August 2012 nor 2 August
2013 was in accordance with justice, and is reviewable in terms of
section 304(4)
of the
Criminal Procedure Act, 51 of 1977
as amended.
[12] From this, it
is clear that the accused complained, that the condition of
suspension that he pay the amount of R98 682,98 by
31 July 2013 was
according to him unfair and unreasonable. He said that the Regional
Magistrate limited the period of repayment
of this amount due to his
(Magistrate) belief that in terms of the provisions of the PFMA all
monies due to the State must be repaid
within a year. This fact is
borne out by the record at page 404 and page 405 as set out hereunder
where the Regional Magistrate
after the legal representative of the
accused, Mr Kroukam made a tender that the accused pay an amount of
R1 700,00 per month within
a 5 year period.
MR KROUKAM:
“Your Worship, at a R1 700,00 a month it would fall within any
five year suspension term, Your Worship. When we spoke
about this
he said a R1 000,00 to a R1 500,00 and I made the calculations and
told him that the court will not be able to make
such a repayment
order because it will extend beyond five years and the repayment
period will have to be within five years, because
it will have to be
within the, if Your Worship considers a sentence like that obviously,
within that five year suspension and a
R1 700,00 per month will do
that in that period, Your Worship”.
COURT:
“But
if you can have a look at the State Finance Regulations, Treasury
Instructions, Public Finance Management, at anybody
who owes money to
the State must pay back that money within one financial year”.
COURT:
“And
then it is up to him how much he pay per month or the court can say
he must pay back this money within 12 months, but
not prescribed to
him how much he must pay per month, because the
Public Finance
Management Act and
other treasury instructions need State money to be
paid back within a. In fact I think it’s even less than that,
within
one financial year, if at all the accused cannot pay it within
one month, because usually here if you owe the State you have been
overpaid by any amount the next month you wouldn’t get your
pay. The whole amount by which you owe the State is deducted
from
your salary as a whole”.
COURT:
“That’s how we do that. He should know as an ex ….
(inaudible). Five years is going to be too long. We are
bound here
by other instruments of the State, within what time must a person pay
back what is due to the State”.
[13] Evaluation
A suspended sentence
is a useful tool in the arsenal of a judicial officer in order to
achieve the aims and objectives of sentence,
especially to deter
offenders from committing similar offences in future. The other
purpose of a suspended sentence is set out
in the provisions of
Section 297
(1)(a)(i). This includes compensation of the victim,
rendering of community service, and rehabilitation. One of the aims
of the
sentence imposed was for the accused to compensate the State
for the money that was stolen. This was framed as a condition of the
suspended sentence.
[14] The Regional
Magistrate clearly limited the accused’s ability to repay the
amount owed to the State due to his belief
that in terms of the PFMA
all monies due to the State should be repaid within one year. For
this reason the accused alleges that
he could not abide with the
conditions of suspension that he repay the amount he admitted he
stole. Whilst I agree that a condition
of suspended sentence should
not be merely for the benefit, or convenience of an accused person,
it should however give him or
her a realistic opportunity to avoid
incarceration. This court in S v Grobler
1992 (1) SACR 184
(C) held
that a condition of suspension should not be unduly onerous and
should be reasonably possible for the accused to comply
with. It
must also not be such that it can be breached by some occurrence
outside the control of the accused.
[15] A court will in
general, when as a condition of suspension, it orders the payment of
compensation, make an order of payment
that an accused person is able
to afford. A court may, however, also order that an accused pay more
than he or she is able to
afford. See S v Mpofu
1985 (4) SA 322
(ZHC) at 329I – 330C. The Regional Magistrate did not
specifically refer to the provisions he relied on in the
Public
Finance Management Act 1 of 1999
to conclude that he is unable to
extend the period of repayment to more than one year.
[16] In the time I
had at my disposal, I was unable to find such a provision in the
PFMA. Even if there was such a provision, the
Regional Magistrate
clearly misdirected himself by relying on such a provision to limit
the period of repayment of the amount owed
by the accused.
[17] As a result of
this, the condition of suspension that the accused pay off the amount
owed to the State in one year was unduly
onerous and it was not
reasonably possible for the accused to comply with this condition of
suspension. For this reason, the sentence
imposed as well as the
subsequent putting into operation thereof falls to be set aside.
[18] Although not
specifically called upon to consider, the conviction in my view needs
to be reconsidered. The powers of the High
Court to review
proceedings of the Magistrate’s court is set out in section
304(2)(c) of the Act. Du Toit, De Jager, Paizes,
Skeen and Van Der
Merwe – Commentary on the
Criminal Procedure Act [Service
51,
2013] at 30 – 12 ’A’.
“
Section 304
not only lays down the procedures to be followed in regard to
automatic review. It also establishes independent review
opportunities,
together with its own procedure for submission,
besides the institution of automatic review. But whether the case
comes before
a judge via the institution of automatic review or
whether it reaches him by way of the special review ground and
procedures in
s 304(4)
, the reviewing court has the same power. In
addition,
s 304
makes provision for the review of proceedings which
until recently were dealt with by superior courts, pursuant to their
inherent
powers of review.”
2
[19] In terms of
Section 304(2)(c)(i)
may confirm, alter or squash a conviction and in
terms of ss (iii) it may also set aside, or correct the proceedings
in the Magistrate’s
Court. Furthermore, in terms of ss (iv) it
may generally give such judgment, or impose such sentence, or make
such order as the
Magistrate’s Court ought to have given,
imposed, or made on any matter which was before it at a trial in
question.
[20] The conviction
was based on the fact that the Regional Magistrate was of the view
that theft is a competent verdict on a charge
of fraud. The
prosecutor, defence attorney as well as the Regional Magistrate
before whom the accused was asked to plead, were
under the mistaken
belief that in terms of the provision of section 256 of the Act, that
Theft is a competent verdict on a charge
of fraud.
[21] What is of
grave concern is how the Regional Magistrate as well as the
prosecutor and attorney could have believed, firstly
that theft is a
competent verdict on a charge of fraud, and secondly, how the
provisions of Section 256 of the Act which deals
with the fact that
attempt to commit an offence is a competent verdict on any charge
where the completed crime cannot be proven.
There is no provision in
Chapter 26 of the Act dealing with competent verdicts, that theft is
a competent verdict on a charge of
fraud.
It is for this
reason why prosecutors would usually add an alternative charge of
theft on a charge of fraud. The provision of Section
256 of the Act
clearly does not find any application in this case. This mistaken
and erroneous belief upon which the Regional
Magistrate convicted the
accused was a clear misdirection.
[22] I am of the
view however, that it does not vitiate the proceedings. In my view
this is a case where the court on review may
either alter, correct
and give such judgment as the Magistrate ought to have given. I
state this for the following reasons; The
conviction of theft in my
view is a competent verdict in terms of the provisions of Section 270
of the Act. The charge of fraud
is not “an offence referred to
in any” of the preceding sections of Chapter 26. “Section
270 reads as follows,
“Offences not specified in this Chapter
If the evidence on a
charge for any offence not referred to in the preceding sections of
this Chapter does not prove the commission
of the offence so charged
but proves the commission of an offence which by reason of the
essential elements of that offence is
included in the offence so
charged, the accused may be found guilty of the offence so proved.”
(own emphasis)
Although the offence
of theft is specified in this Chapter, under section 264 of the Act,
Section 270 refers to evidence on a charge
for any offence not
referred in the preceding sections.
[23] In this matter,
the accused was charged for an offence of fraud which is not referred
to in the preceding sections of Chapter
26. In S v Mavundla
1980 (4)
SA 187
(T) the accused was charged with public violence, an offence
that is not mentioned in any of the preceding sections of Chapter 26,
but was convicted on a charge of assault with intent to do grievous
bodily harm, an offence referred to in the previous sections
(section
266). Similarly in S v Masita
2005 (1) SACR 272
(C) the accused was
charged with contravening
Section 17(1)
of the
Domestic Violence Act
116 of 1998
and the court found that assault with the intent to do
grievous bodily harm was a competent verdict. In Mavundla (supra) as
well
as Masita (supra) it was held as in this case that if the
essential elements of the lesser charge are contained in the offence
charged, a competent verdict in terms of
Section 270
would be
permissible. In S v Mei 1982(1) SA (O) at 299 the learned Judge
agreed with the Mavundla decision and also disagreed
with Heimstra -
Suid-Afrikaanse Strafproses view at that time, that in terms of the
wording of
Section 270
a finding of guilt on a lesser crime is
permissible even if the definition of the crime charged does not
encompass the lesser crime.
The court further held at 303 F –
G:
“It seems to
me that there is much to be said for the view that the wording of the
new section bears the meaning that, as
long as the “essential
elements” of the lesser offence are included “in the
offence so charged”, ie in
the charge sheet, not the legal
definition of the crime, a finding of guilt on the lesser crime is
competent”.
Where the essential
elements on which the accused is convicted, is however not contained
in the offence charged,
Section 270
finds no application. In this
regard, see S v Malapane
[2011] JOL 27840
(GSJ). In this case under
review, the accused admitted to the essential elements of theft by
unlawfully appropriating the money
which did not belong to him. On
the fraud charge it was alleged that the accused by fraudulent means,
appropriated the sum of
R98 682,98 which was subsequently paid into
his banking account and at a later stage, he unlawfully appropriated
this money for
himself by using it whilst knowing that he was
entitled to it. On the theft charge, he admitted that he unlawfully
appropriated
the sum of R98 663,45 after it was deposited into his
banking account and he later unlawfully used that money for whilst
knowing
that it was not due to him and that he was not entitled to
use it. These elements were contained in the charge of fraud which is
not an offence referred to in the preceding sections of Chapter 26.
[24] Furthermore,
the conviction of the accused in this particular matter was not based
on evidence that was presented by the State
which he disputed but, on
admissions he made during the course of the trial in terms of
Section
220
, wherein he admitted his guilt on a charge of theft. These
admissions constituted proof of the commission of the offence of
theft
which by reason of the essential elements thereof, was included
in the offence of fraud. The accused also wanted to plead guilty
to
the crime of theft.
[25] In applying the
provisions of
Section 304(2)(c)(iv)
, the judgment, the Regional Court
ought to have given was that the accused is guilty on the competent
verdict of theft of R98 663,45
(admitted by the accused as accepted
by the State) by virtue of the provisions of Section 270 of the Act.
The facts of this case
justify such a conclusion and the conviction
therefore in my view, so corrected, is in accordance with the law.
[26] In the result
therefore, I make the following order:
1. That the
conviction on the charge of theft of R98 663,45 follows upon the
application of
Section 270
of the
Criminal Procedure Act 51 of 1977
,
and it is so confirmed.
2. That the matter
is remitted back to the Regional Court for sentence to be considered
afresh before another Regional Magistrate
in terms of the provisions
of Section 275 of the Act.
HENNEY, J
Judge of the High
Court
I agree, it is so
ordered.
LE GRANGE, J
Judge of the High
Court
1
The
accused admitted an amount of R98 663,45. See paragraph
10 infra.
2
With
regard to the High Court’s inherent powers of Review.
See
Walhaus
and Others v Additional
Magistrate
Johannesburg and Another
1959 (3) SA 113
(A)
.