S v a

• Jurisdiction: South Africa
• Judgment Date: 15 December 1989
• Citation: 1990 (1) SACR 534 (C)

S v A
1990 (1) SACR 534 (C)

1990 (1) SACR p534

Citation	1990 (1) SACR 534 (C)
Court	Cape Provincial Division
Judge	Findlay AJ
Heard	November 21, 1989
Judgment	December 15, 1989
Counsel	S P Rosenberg for the appellant; W A King for the State

Flynote : Sleutelwoorde

Appeal — Application for remittal to trial court for hearing of further evidence — Accused convicted of contravention of s 14(1)(a) of Sexual Offences Act 23 of 1957 — Accused seeking to lead expert evidence in G mitigation of sentence — Complex nature of offence cited — Accused having had legal representation at trial and afforded opportunity of properly presenting his defence — Decision of accused's attorney not to obtain such evidence not in any way culpable — No irregularity in trial — Court not informed of nature of evidence sought to be adduced — Court entitled to exercise discretion to remit cases for hearing of further H evidence only in exceptional circumstances — Present circumstances not such — Essential furthermore that indication of nature of evidence sought to be led be furnished.

Headnote : Kopnota

The appellant was convicted and sentenced in a regional court for a contravention of s 14(1)(a) of the Sexual Offences Act 23 of 1957. The appellant brought an application for a setting aside of the sentence and I remittal of the matter to the trial court for the hearing of expert evidence from a social worker. The appellant averred that the present case, one involving a sexual offence committed with a minor within the family unit, had to be regarded as particularly complex and that expert evidence had to be obtained if at all possible. The appellant had had legal representation in the court a quo, but due to practical J difficulties such witness had not been called.

1990 (1) SACR p535

A Held, that this was not a case where the accused had not had an opportunity of properly presenting his defence (his attorney's decision not to obtain such evidence not having been in any way culpable), or where there had been an irregularity in his trial, but rather one where the accused wished to explore the possibility of obtaining evidence which may assist him, but without giving the Court any indication of the nature of such evidence.

B Held, further, that the Court would in these circumstances be very slow in acceding to an application such as the present one, particularly as it could not be said that, without knowledge of the evidence sought to be obtained, the second and especially the third requirements laid down in S v De Jager 1965 (2) SA 612 (A) had been satisfied.

Held, further, that the discretion to remit a case to the trial court for the hearing of further evidence was one which was exercised only in C exceptional circumstances, a fortiori in defended cases.

Held, further, that the facts in the present case did not suggest the existence of exceptional circumstances.

Held, accordingly, that the application had to fail. D

Case Information

Appeal from a conviction and sentence in a regional magistrate's court. The facts appear from the reasons for judgment.

S P Rosenberg for the appellant.

W A King for the State.

Cur adv vult.

E Postea (15 December 1989).

Judgment

Findlay AJ:

The appellant was charged with rape before the regional court. He pleaded not guilty and was defended by an attorney. Admissions were placed on record by the defence in terms of s 220 of the Criminal F Procedure Act 51 of 1977, that the appellant was guilty of a contravention of s 14(1)(a) of the Sexual Offences Act 23 of 1957 in that during the period 1985 to 1986 he had sexual intercourse with the complainant on several occasions and that to his knowledge she was, at the time, under the age of 16 years. A plea of guilty to this lesser offence was tendered by the defence but not accepted by the State.

It was common cause at the trial that the complainant was one of a G family of three children who were placed in the foster care of the appellant and his wife (they having four children of their own). On the complainant's version she was allegedly raped several times, whereas on the appellant's version she consented on these occasions to intercourse.

The magistrate found there was a doubt as to the absence of consent and acquitted him of rape, but convicted him of a contravention of s H 14(1)(a) of the Sexual Offences Act. Appellant was then sentenced to two years' imprisonment of which 15 months were suspended for five years on condition that appellant was not again convicted during the period of suspension of contravening the same provision, rape, attempted rape or indecent assault and in respect of which he was sentenced to imprisonment without the option of a fine. His appeal is against the sentence on the ground that it was inappropriate and shocking in the circumstances. Before I the appeal came before the Court for hearing, counsel for the appellant and the State were both notified that this Court wished to consider whether or not the sentence should be increased and that argument should also be addressed to that question.

When the matter was called, Mr Rosenberg, who appeared for the appellant, handed in a notice of motion supported by affidavit from attorney Le Riche (who had defended the appellant at the trial) wherein J an application was made

1990 (1) SACR p536

Findlay AJ

A for the setting aside of the sentence and remittal of the matter to the trial court for the hearing of expert evidence from a social worker of the Department of Health and Welfare (House of Representatives), together with such other expert evidence as the trial court or the social worker might consider appropriate relative to the appellant, the complainant and the B family of the appellant. Mr King, who appeared for the State, had no objection to the application being brought and it was accordingly heard at the outset. After argument, counsel were invited to and did deal with the appeal on the record as it stood upon the hypothesis that the application might fail, although Mr Rosenberg made it plain that he was arguing without in any way conceding that the appeal could be so decided in all the circumstances. Although no evidence was led in mitigation, the record C shows that the defence attorney addressed the court. The judgment on sentence makes reference to several aspects of the accused's personal circumstances, many of which had been canvassed with the appellant in the initial stages of his evidence-in-chief. Those that were not I infer were put before the magistrate in the course of the address in mitigation without objection from the State.

Mr Rosenberg argued that especially in a matter such as the present, D where there was a possibility of an increase in the sentence, without the further evidence foreshadowed in the notice of motion, the question of sentence could not be properly addressed.

His argument was based largely upon the recent judgment of Kriegler J (concurred in by Moll JP) in S v D 1989 (4) SA 709 (T). Mr Rosenberg contended that the present matter, being one involving a sexual offence E committed with a minor within the family unit, fell to be regarded as a peculiar and most complex form of social deviancy and accordingly expert evidence, if at all possible, should be obtained. For this he relied upon the dicta to be found in D's case supra at 714C-J. He contended that the following questions (which were also set out in his supplementary written heads of argument) presented themselves and did F not appear...