S v Brand

• Jurisdiction: South Africa
• Judge: Makuma J and Thompson AJ
• Judgment Date: 30 October 2018
• Citation: 2019 (1) SACR 264 (GJ)
• Docket Number: A 228/2016
• Hearing Date: 23 August 2018
• Counsel: S Simpson for the appellant. AM Williams for the respondent.
• Court: Gauteng Local Division, Johannesburg

Thompson AJ: B

[1] The appellant was convicted of one count of fraud in the sum of R24 020 in the district court. The conviction ensued from a plea of guilty tendered by the appellant in terms of s 112(2) of the Criminal Procedure Act 51 of 1977 (the Act). After the plea of guilty was accepted and the appellant being duly convicted, the state made application in terms of C s 114(1)(b) [1]

of the Act to have the matter transferred to the regional court for sentencing purposes. In making the application, the state made the following submission:

'In terms of section 114(b) of [the Act], which states that if a Magistrate's Court, after a conviction, following on a plea of guilty, but D before sentence, is of the opinion that the previous convictions of the accused are such that the offence in respect of which the accused has been convicted, merits punishment in excess of the jurisdiction of a Magistrate's Court, the court shall stop the proceedings and commit the accused for sentence by the Regional Court having jurisdiction. E We are certainly of the view that this section will apply. . . .

So we would like to make that application and we hope that the court concurs with the view of the state that, in light of the previous convictions, this is certainly a case that needs to be referred to the Regional Court, because the state does not believe that three years imprisonment, which is its jurisdiction, is going to be suitable to this F accused.'

[2] During the course of the aforesaid submission, the state made the following additional, and rather curious, submission:

'(T)here is a very good chance that section 114(c) will also very soon be G applicable to this accused, in that the accused may very soon be a person referred to in terms of Section 286A(1).'

[3] Section 114(c) provides as follows: a magistrate's court may commit an accused for sentencing by a regional court after a plea of guilty if it is

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of the opinion that the accused is a person referred to in s 286A(1) [2] of A the Act.

[4] Section 286A of the Act deals with declaring a convicted person a dangerous criminal. None of the appellant's prior convictions or the conviction in casu has any element of violence and the prosecutor's reference to s 286A is an error. No doubt, to the trained legal eye, it is B apparent that the prosecutor intended to refer to s 286 of the Act, the latter section dealing with declaring a repeat offender a habitual offender. Rather peculiarly, Mr Nukhere, who appeared for the appellant in the district court, did not seek to correct this error on the part of the prosecutor. C

[5] The learned magistrate in the district court also did not seek to correct this error on the part of the prosecutor. In transferring the matter from the district court to the regional court, the learned magistrate in the district court recorded the following on the charge-sheet annexures:

'Court is of the opinion in terms of Sec 114(1)(b) of Act 51/77 that the D previous convictions of the Accused are such that the offence in respect of which the Accused has been convicted merits punishment in excess of the Magistrate's Court. The Court therefore stops the proceedings and commits the Accused for sentence in Regional Court 2.'

[6] This recordal was in line with the learned magistrate in the district court's order as recorded in the record, where it was stated that: E

'(T)he court is of the opinion that in terms of section 114(1)(b) of [the Act], that the previous convictions of the accused are of such a nature that the offence in respect of which the accused has been convicted, merits punishment in excess of the Magistrate's Court. The court therefore stops the proceedings and commits the accused for sentence in Regional Court 2.' F

[7] The record of the district court proceedings was duly proved and accepted in the regional court, with the regional court confirming the conviction of the appellant. The state proved a long list of previous convictions against the appellant, which, respectively, includes 1, 6 and G 21 counts of fraud, as well as 71 counts of theft. It bears mentioning that the first two fraud offences were committed during 2004, some four months apart, with the third fraud offence being committed during 2007. The 71 convictions of theft all arise from a single transaction committed during 2009. The appellant was incarcerated on the latter offences until 3 September 2012 when he was released on parole supervision until H 1 January 2016. The offence under consideration in this matter occurred during April/May 2015, whilst the appellant was still under parole supervision.

[8] In S v Naweseb [3] a comprehensive discourse of the origin of s 286 of I the Act was undertaken by Kritzinger AJ and in doing so the court held that the purpose of s 286 of the Act was not so much to punish the

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accused A for his most recent offence, but rather to see if an accused, who is removed from society for a long time, will outgrow his habitual criminal tendencies, and further to protect the society against an accused who habitually commits offences. Both these objects are achieved by removing the accused from society for a lengthy period of time not B exceeding 15 years. [4]

[9] No hard-and-fast rules exist in terms of which it is to be determined whether an accused has reached that stage where he habitually commits offences. Each case must be determined on its own merits. It would be risqué for a court to rely solely on the list of previous convictions in order C to determine and find that an accused habitually commits offences. This is due to the fact that the reasons why accused persons commits offences differ on a case-to-case basis. Some accused persons commit offences out of pure desperation arising out of social circumstances, whilst others are seduced by adventure and the influence of friends. [5] The court is therefore enjoined to investigate the material facts upon which reliance is D being placed for a declaration to be made in terms of s 286 of the Act. A duty rests on the state and the court to, at least, attempt to determine the circumstances under which the previous offences and the most recent offence had been committed. [6]

[10] This preconstitutional practice that was laid down is salutary and E finds even more application in a constitutional era where the accused's fair-trial rights are enshrined. [7] The declaration of a person as a habitual offender is a drastic declaration and leads to exceptional punishment. [8] The declaration as a habitual offender has dire consequences for the liberty of an accused person, which could result in the accused being removed from society for up to 15 years. This punishment should, in my F view, not be resorted to for flimsy reasons or based on speculative hypothesis.

[11] Section 286(1) of the Act enjoins the court to be satisfied that (i) the accused habitually commits offences; and (ii) society should be protected G against such accused person. In this matter the appellant has previous fraud convictions emanating from 2004 and 2007. There is a space of some three years between these fraud convictions. There is a further space of eight years between the last fraud conviction and the present fraud conviction, granted the appellant spent just over three years thereof in prison on the theft convictions. The theft convictions, 71 in number, H looks horrendous on paper; however, a closer scrutiny of the SAP69 shows

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that the 71 counts of theft arose from a single incident in 2009. Between A 2012, when the appellant was released under parole supervision, and the commission of the offence in this matter, almost two and a half years had passed.

[12] The learned magistrate in the regional court found that the B appellant had been convicted of no less than 129 counts on offences relating to dishonesty. On my perusal of the SAP69, I could only count 99. Of the 99 counts that I could determine, 71 counts thereof related to a single act, which in turn constituted 71 counts due to the legal definition of theft. Moreover, 21 counts of the 99 counts that I could determine also arises from, so it seems, a single act. This much C seems to be confirmed by the fact that the court in that matter took the 21 counts together for the purposes of sentencing. The six counts of fraud of 2004 also seem to arise from one act. This much also seem to be confirmed by the fact that the court took the six counts together for the purposes of sentencing. D

[13] The state did not seek an order in terms of s 286 of the Act to have the appellant declared a...