Hansen v the Regional Magistrate, Cape Town and Another

• Jurisdiction: South Africa
• Citation: 1999 (2) SACR 430 (C)

Hansen v the Regional Magistrate, Cape Town and Another
1999 (2) SACR 430 (C)

1999 (2) SACR p430

Citation	1999 (2) SACR 430 (C)
Court	Cape Provincial Division
Judge	Davis J
Heard	May 14, 1999
Judgment	May 14, 1999
Counsel	L Nortier for the applicant; J Slabber for the second respondent; No appearance for the first respondent

Flynote : Sleutelwoorde

Review — Powers of Court — Exercise of inherent jurisdiction, under s 173 of Constitution Act 108 of 1996 — Jurisdiction under s 173 requiring Court to promote interests of justice within context of values of Constitution — Court exceptionally permitted, in exercise of such jurisdiction, to assist accused who has already exhausted all procedural remedies — Cause of injustice arising only C after accused has exhausted procedural remedies — Accused in casu having been convicted and sentenced, and having exhausted all procedural remedies (appeal, petition to Chief Justice) when erstwhile co-accused convicted of same offence, and receiving much less severe sentence than accused — Court permitted, in such exceptional circumstances, and D notwithstanding that accused has exhausted all remedies, to grant relief — Accused's sentence reduced under rule against startling disparity between sentences of different accused convicted of same offence.

Sentence — Imposition of — Factors to be taken into account — Parity of sentences — Generally — Disturbing disparity in sentences imposed upon different accused for same offence, under circumstances where their degrees of participation being more or less equal and there being no E personal factors warranting such disparity, to be avoided — Such disparity might, depending on circumstances, warrant appellate interference.

Headnote : Kopnota

The applicant and his brother were charged with housebreaking with intent to steal F and theft. The applicant's brother absconded, however, and the applicant was tried alone. He was convicted (during 1993) and thereupon declared a habitual criminal in terms of s 286(1) of the Criminal Procedure Act 51 of 1977. An appeal and a subsequent petition to the Chief Justice were dismissed. Thereafter, some five years after the applicant had been sentenced, the applicant's brother was tried G and convicted of the same offence. He was sentenced to four years' imprisonment, two years of which were suspended and the remaining two years of which were subject to correctional supervision in terms of s 276(1)(i) of the Act. A review application was thereupon moved on behalf of the applicant, seeking a reduction of his sentence on the basis of the disparity between the sentences imposed upon him and his brother. H

Held, that where there was a disturbing disparity in sentences imposed upon different accused for the same offence, under circumstances where their degrees of participation were more or less equal and there were no personal factors I warranting such disparity, appellate interference might, depending on the circumstances, be warranted. For the purposes of implementing this rule, it was in principle permissible, in cases where two accused were convicted by different courts of the same offence, and the later sentence was the lighter sentence, for a Court entertaining an appeal against the earlier, more severe sentence to take cognisance of that later sentence. This proposition also constituted an (affirmative) example of the rule that only in J

1999 (2) SACR p431

exceptional circumstances would facts, which became known after sentence had been passed in the trial court, be taken into consideration on appeal. A

The dicta in S v Giannoulis 1975 (4) SA 867 (A) and S v Marx 1989 (1) SA 222 (A) followed.

Held, further, and as a matter of common cause between the parties, that upon an application of the aforesaid principles the applicant would, in the ordinary course, on appeal, have been entitled to the relief sought. B

Held, further, that the perceived obstacle to the granting of such relief, posed by the fact that the applicant had already exhausted his legal remedies (so that the Court of appeal might be regarded as functus officio) was not insurmountable. Section 173 of the Constitution Act 108 of 1996 had broadened the inherent C jurisdiction of the Constitutional Court, the Supreme Court of Appeal and the High Court, to protect and regulate their own process, and to develop the common law, taking into account the interests of justice. The section confirmed a concept of inherent jurisdiction which promoted the interests of justice within the context of the values of the Constitution. That was a wider concept than the provisions of s 19(1)(a) and s 19(3) of the Supreme Court Act 59 of 1959, which had previously formed the basis of a more restrictive analysis of the inherent jurisdiction of the High Court (ie, in cases where an accused had already exhausted his legal remedies). D

The dictum in Sefatsa and Others v Attorney - General, Transvaal and Another 1989 (1) SA 821...