S v Brand

• Jurisdiction: South Africa
• Citation: 2019 (1) SACR 264 (GJ)

S v Brand
2019 (1) SACR 264 (GJ)

2019 (1) SACR p264

Citation	2019 (1) SACR 264 (GJ)
Case No	A 228/2016
Court	Gauteng Local Division, Johannesburg
Judge	Makuma J and Thompson AJ
Heard	August 23, 2018
Judgment	October 30, 2018
Counsel	S Simpson for the appellant.; AM Williams for the respondent.

Flynote : Sleutelwoorde

Sentence F — Habitual criminal — Declaration as in terms of s 286 of Criminal Procedure Act 51 of 1977 — Accused not warned in advance of provisions of section — Such warning should have been given at previous trial — Declaration set aside and replaced with sentence of fixed term of imprisonment.

Headnote : Kopnota

The G appellant was convicted in a magistrates' court of fraud involving an amount of R24 000. When his previous convictions were revealed the magistrate took the view that the offence merited punishment in excess of its jurisdiction and accordingly referred it to the regional court for sentence. The regional court then declared the appellant a habitual criminal.

On H appeal, the court noted that there had been no prior warning to the appellant that on a subsequent conviction he could be declared a habitual criminal.

Held, that declaring an accused a habitual offender was a drastic sentencing option and, if imposed, led to exceptional punishment. The preconstitutional authorities grasped this notion and established the salutary practice of requiring a prior warning at a previous hearing. If this was the position prior I to our constitutional era, the practice should find even more application in the constitutional era, having regard to an accuseds' entrenched constitutional right to a fair trial. (See [10] and [33].)

Held, further, that, since the warning could not be given at the commencement of a subsequent trial because of the prejudicial consequences of revealing the previous convictions to the court at that stage, the warning should be J given at the sentencing stage in the earlier trial. (See [37].)

2019 (1) SACR p265

Held, accordingly, that the declaration as habitual criminal had to be set aside A and replaced with a term of direct imprisonment. A sentence of seven years' imprisonment was appropriate. (See [43].)

Cases cited

Jordaan and Others v City of Tshwane Metropolitan Municipality and Others 2017 (6) SA 287 (CC): applied B

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39; [1999] ZACC 17): referred to

R v Edwards 1953 (3) SA 168 (A): referred to

S v GR 2015 (2) SACR 79 (SCA) ([2014] ZASCA 144): dictum in para [21] compared C

S v Erasmus 1987 (4) SA 685 (C): referred to

S v Mache 1980 (3) SA 224 (T): referred to

S v Magqabi 2004 (2) SACR 551 (E): referred to

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220): dictum in para [2] applied

S v Mhlongo 2016 (2) SACR 611 (SCA) ([2016] ZASCA 152 (3 October 2016): dictum in para [11] applied D

S v Mhlungu and Others 1995 (3) SA 867 (CC) (1995 (2) SACR 277; 1995 (7) BCLR 793; [1995] ZACC 4): referred to

S v Naweseb 1980 (1) SA 345 (SWA): referred to

S v Niemand 2001 (2) SACR 654 (CC) (2002 (1) SA 21): applied

S v Rabie 1975 (4) SA 855 (A): referred to E

S v Rall 1982 (1) SA 828 (A): referred to

S v Siebert 1998 (1) SACR 554 (SCA): referred to

S v Smith 2014 (2) SACR 190 (FB): referred to

S v Trichardt 2014 (2) SACR 245 (GJ): referred to

S v Van Eck 2003 (2) SACR 563 (SCA): dictum in para [10] applied

S v Wayi 1994 (2) SACR 334 (E): referred to F

S v Zuma and Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401; [1995] ZACC 1): dictum in para [16] applied

Zantsi v Council of State, Ciskei, and Others 1995 (4) SA 615 (CC) (1995 (10) BCLR 1424; [1995] ZACC 9): referred to.

Case Information

S Simpson for the appellant. G

AM Williams for the respondent.

An appeal from a sentence imposed in a regional magistrates' court for fraud.

Order H

1.

The appeal against the sentence imposed succeeds, with the order declaring the appellant a habitual offender being set aside and replaced with seven years' direct imprisonment.

2.

The sentence imposed is antedated to [. . .].

3.

The appellant is hereby warned that he runs the risk of being I declared a habitual offender in terms of s 286 of the Criminal Procedure Act 51 of 1977 should he in the future convicted of any offence of which dishonesty is an element. The appellant is further warned that an order whereby he is declared a habitual offender will result in him being imprisoned for a period of no less than seven years, but no more than 15 years. The appellant is also warned that J

2019 (1) SACR p266

he A should inform any future legal representative in respect of any future charges relating to crimes of dishonesty, prior to the commencement of such trial, of this warning being imposed on him.

Judgment

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

2019 (1) SACR p267

Thompson AJ

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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Thompson AJ

accused ...