S v De Beer

• Jurisdiction: South Africa
• Judgment Date: 05 November 2017
• Citation: 2018 (1) SACR 229 (SCA)

S v De Beer
2018 (1) SACR 229 (SCA)

2018 (1) SACR p229

Citation	2018 (1) SACR 229 (SCA)
Case No	1210/2016; [2017] ZASCA 183
Court	Supreme Court of Appeal
Judge	Cachalia JA, Bosielo JA, Tsoka AJA, Ploos van Amstel AJA and Rogers AJA
Heard	November 2, 2017
Judgment	November 5, 2017
Counsel	JJ Greeff for the appellant.; P Nel for the state.

Flynote : Sleutelwoorde

Appeal — Powers of court on appeal — Appeal against conviction — Power to B increase sentence in event of appeal against conviction failing — Court having such power.

Rape — Sentence — Life imprisonment — When appropriate — Offence amounting to what would previously have been regarded as indecent assault — C Offence perpetrated on young child — Incarceration required but life imprisonment plainly disproportionate — Sentence of 15 years' imprisonment of which five years suspended, reinstated.

Headnote : Kopnota

The appellant was convicted in a regional court of rape in contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act D 32 of 2007, in that over a period of four months he had on numerous occasions inserted his finger into the private parts of an 8-year-old girl and made her touch his private parts. He was sentenced to 15 years' imprisonment of which five years were suspended.

On appeal against the conviction to the High Court, the court gave notice that in the event of the appeal against conviction failing, it would consider increasing the sentence. The appeal against conviction did fail and the court E increased the sentence to one of life imprisonment.

In a further appeal, the appellant contended that the High Court lacked jurisdiction to interfere with the sentence, as the appeal was not one against sentence but only against conviction.

Held, that sentence was always a matter for the court and, when an appeal was lodged against a conviction and it appeared to the appeal court that the F sentence was manifestly inappropriate, the appeal court could not be deprived of its jurisdiction to ensure that justice was done by the failure of the state to cross-appeal. In such a case, the appeal court was entitled to notify the appellant that it may consider an increase in the sentence if the conviction were to be upheld. The question of sentence then became part of the subject-matter of the appeal. (See [11].)

2018 (1) SACR p230

Held, A as regards the sentence imposed by the High Court, that the court did not appear to have given proper consideration to the question whether a life sentence was proportionate to the crime, the appellant and the legitimate needs of society. It had focused too much on the fact that life imprisonment was the prescribed minimum sentence. (See [21].)

Held, that the appellant deserved a custodial sentence, but imprisonment for life B would be an injustice. The disproportionality was plain. The appropriate order would be to reinstate the sentence of the regional court. (See [23].)

Cases cited

S v Abrahams 2002 (1) SACR 116 (SCA): referred to

S v Bogaards 2013 (1) SACR 1 (CC) (2012 (12) BCLR 1261; [2012] ZACC 23): dictum in para [72] applied

S C v Coetzee 2010 (1) SACR 176 (SCA) ([2010] 2 All SA 1; [2009] ZASCA 134): dicta in paras [18] – [25] applied

S v F 1983 (1) SA 747 (O): approved

S v GK 2013 (2) SACR 505 (WCC) ([2013] ZAWCHC 76): approved

S v Kirsten 1988 (1) SA 415 (A): followed

S D v Mahomotsa 2002 (2) SACR 435 (SCA) ([2002] 3 All SA 534; [2002] ZASCA 61): referred to

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220; [2001] ZASCA 30): dicta in paras [22] – [23] applied

S v Nabolisa 2013 (2) SACR 221 (CC) (2013 (8) BCLR 964; [2013] ZACC 17): distinguished

S E v SMM 2013 (2) SACR 292 (SCA) ([2012] ZASCA 56): referred to

S v Vilakazi 2009 (1) SACR 552 (SCA) ([2008] 4 All SA 396; [2008] ZASCA 87): referred to

S v Zinn 1969 (2) SA 537 (A): applied.

Legislation cited

The Criminal Law (Sexual Offences and Related Matters) Amendment Act F 32 of 2007, s 3: see Juta's Statutes of South Africa 2016/17 vol 1 at 2-640.

Case Information

JJ Greeff for the appellant.

P Nel for the state.

An appeal against the increase of a sentence by the Gauteng Local G Division, Johannesburg (Vally J and Siwendu AJ), in an appeal to it from a conviction in a regional court. [*]

Order

(a)

Paragraph 2 of the order made by the Gauteng Local Division, Johannesburg, is set aside, save for that part of it which directed that H the name of the appellant shall be reflected in the sexual offenders' register.

(b)

The sentence imposed by the regional court is reinstated, namely 15 years' imprisonment, five years of which were suspended for five years on condition that the accused is not convicted of a contravention I of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, committed during the period of suspension. The effective period of imprisonment will be 10 years.

(c)

The sentence is antedated to 9 October 2013.

2018 (1) SACR p231

Judgment

Ploos van Amstel AJA (Cachalia JA, Tsoka AJA and Rogers AJA concurring):

[1] A The appellant in this matter was convicted in a regional court of rape in contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act). The charge against him was that over a period of about four months he on numerous B occasions committed an act of sexual penetration with an 8-year-old girl by inserting his finger into her private parts and making her touch his private parts. The regional magistrate sentenced him to 15 years' imprisonment, of which he suspended five years on condition that the appellant is not convicted of contravening the Act in question during the period of suspension. C

[2] With the leave of the regional magistrate the appellant appealed against his conviction to the Gauteng Local Division in Johannesburg. The appeal was set down for hearing on 29 February 2016. On that day the appellant was notified by the court that it would consider increasing D the sentence in the event of the conviction being upheld, and that he should be ready to make submissions as to why this should not be done. The appeal was then postponed to 10 May 2016 in order to give both the appellant and the state an opportunity to prepare submissions in this regard.

[3] In the event, the court a quo dismissed the appeal in respect of the E conviction and increased the sentence to imprisonment for life. On 11 October 2016 this court granted the appellant special leave to appeal against the increased sentence.

[4] The first line of attack in this court related to the power of the court F a quo to have increased the sentence in circumstances where the appellant had only appealed against his conviction, and the state had not appealed against the sentence.

[5] In S v Bogaards 2013 (1) SACR 1 (CC) (2012 (12) BCLR 1261; [2012] ZACC 23) Khampepe J acknowledged that a court of appeal is G empowered to set aside a sentence and impose a more severe one. She said that at common law there was no formal requirement for an appeal court to give an accused person notice when that court was considering an increased sentence on appeal. The Constitutional Court (the CC) held that it was necessary to develop the common law so as to require notice to an appellant where an increase in the sentence is being H contemplated by the court of its own accord. Khampepe J said the following in para 72:

'It is worth emphasising that, requiring the appellate court to give the accused person notice that it is considering an increase in sentence or I imposing a higher sentence upon conviction for a substituted offence, does not fetter that court's discretion to increase the sentence or to impose a substituted conviction with a higher sentence. The court may clearly do so in terms of s 22(b) of the Supreme Court Act and s 322 of the CPA. Elevating the notice practice to a requirement merely sets out the correct procedure according to which the court must ultimately exercise that discretion. The notice requirement is merely a prerequisite J

2018 (1) SACR p232

Ploos van Amstel AJA (Cachalia JA, Tsoka AJA and Rogers AJA concurring)

to A the appellate court's exercise of its discretion. After notice has been given and the accused person has had an opportunity to give pointed submissions on the potential increase or the imposition of a higher sentence upon conviction of another offence, the appellate court is entitled to increase the sentence or impose a higher sentence if it determines that this is what justice requires.'

[6] B Counsel for the appellant, however, submitted that, where the appeal is only against the conviction, the question of sentence is not before the court, with the result that the sentence cannot be increased. In support of this submission he relied on the judgment in S v Nabolisa 2013 (2) SACR 221 (CC) (2013 (8) BCLR 964; [2013] ZACC 17).

[7] C ...