S v Bull and Another; S v Chavulla and Others

• Jurisdiction: South Africa
• Judge: Vivier Adcj, Howie JA, Olivier JA, Cloete AJA and Brand AJA
• Judgment Date: 26 September 2001
• Citation: 2002 (1) SA 535 (SCA)
• Docket Number: 221/2000 & 222/2000
• Counsel: J Abel for the appellant in the Bull matter (heads of argument on behalf of the first appellant having been drawn by H J G Labuschagne). N Nel for the first appellant in the Chavulla matter at the request of the Court.
• Court: Supreme Court of Appeal

Vivier ADCJ:

[1] In each of the above appeals, which were heard separately, the constitutional validity of ss 286A and 286B of the Criminal Procedure Act 51 of 1977 (the Act ) was challenged. It is therefore E convenient to deal with both appeals together.

[2] In the first appeal (the Bull appeal) the two appellants were convicted by Uijs AJ and assessors in the Cape Provincial Division on two counts of murder, one count of robbery, one count of attempted robbery and one count each of the illegal possession F of a firearm and ammunition. The charges all arose out of an armed robbery on the evening of 5 October 1997 at the Superbake Bakery in Mitchell's Plain near Cape Town. After conviction the trial Court directed that an enquiry be held in terms of s 286A(3) of the Act as to whether the appellants were dangerous criminals. At the enquiry G expert psychiatric evidence was led on behalf of both the State and the appellants. Both appellants were thereafter declared to be dangerous criminals and sentenced to undergo imprisonment for an indefinite period. In terms of s 286B(1)(b) the trial Court directed that they again be brought before the court upon the expiration of a period of 35 years for reconsideration of the sentences. With the leave H of the Court a quo they appeal to this Court against their sentences.

[3] In the second appeal (the Chavulla appeal) the five appellants were convicted by Lategan J and assessors on one count of housebreaking (count 7), one count of robbery (count 8), three counts of murder (counts 9, 10 and 11), one count of attempted murder I (count 12) and one count each of the illegal possession of firearms and ammunition (counts 13 and 14). These charges all arose out of an attack at a farmhouse at Nieuwoudtville in the Western Cape on the evening of 24 September 1996. In addition, and arising out of related events in the J

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days which preceded the attack at the farm-house, the second, third and fifth appellants were convicted on one count of A robbery (count 2) and one count of housebreaking with intent to steal and theft (count 4). The first appellant was convicted of theft on count 2. The second appellant was convicted of murder (count 1) while Nos 3 and 5 were convicted as accessories after the fact on this count. The second appellant was also convicted of theft (count 3). B After an enquiry in terms of s 286A(3) at which expert psychiatric evidence on behalf of both the State and the defence was led, all the appellants were declared to be dangerous criminals and sentenced to undergo imprisonment for an indefinite period. The trial Court directed that the first appellant again be brought before the Court on the expiration of a period of 30 years, and that the others be brought C before the Court on the expiration of 50 years for reconsideration of their sentences. With the necessary leave the appellants appeal to this Court against their sentences.

[4] Sections 286A and 286B, insofar as relevant, read as follows: D

'286A Declaration of certain persons as dangerous criminals

(1) Subject to the provisions of ss (2), (3) and (4), a Superior Court or a regional court which convicts a person of one or more offences, may, if it is satisfied that the said person represents a danger to the physical or mental well-being of other persons and that the community should be protected against him, declare him a dangerous criminal. E

(2)(a) If it appears to a court referred to in ss (1) or if it is alleged before such court that the accused is a dangerous criminal, the court may after conviction direct that the matter be enquired into and be reported on in accordance with the provisions of ss (3).

(b) Before the court commits an accused for an enquiry in terms of ss (3), the court shall inform such accused of its intention F and explain to him the provisions of this section and of s 286B as well as the gravity of those provisions.

(3)(a) Where a court issues a direction under ss (2)(a), the relevant enquiry shall be conducted and be reported on -

(i)

by the medical superintendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by such medical superintendent at the request of the court; and G

(ii)

by a psychiatrist appointed by the accused if he so wishes.

(b) - (c). . .

(d) The report shall -

(i)

. . .

(ii)

include a finding as to the question whether the accused represents a danger to the physical or mental well-being of other H persons.

(e) - (k). . .

(4)(a) If the finding contained in the report is the unanimous finding of the persons who under ss (3) conducted the enquiry, and the finding is not disputed by the prosecutor or the accused, the court may determine the matter on such report without hearing further evidence. I

(b) If the said finding is not unanimous or, if unanimous, is disputed by the prosecutor or the accused, the court shall determine the matter after hearing evidence, and the prosecutor and the accused may to that end present evidence to the court, including the evidence of any person who under ss (3)(a) conducted the enquiry.

(c) . . . . J

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286B Imprisonment for indefinite period - A

(1) The court which declares a person a dangerous criminal shall -

(a)

sentence such person to undergo imprisonment for an indefinite period; and

(b)

direct that such person be brought before the court on the expiration of a period determined by it, which shall not exceed the jurisdiction of the court.

(2) A person sentenced under ss (1) to undergo imprisonment for an indefinite period shall, notwithstanding the provisions of ss (1)(b) but subject to the provisions of ss (3), within B seven days after the expiration of the period contemplated in ss (1)(b) be brought before the court which sentenced him in order to enable such court to reconsider the said sentence: Provided that in the absence of the judicial officer who sentenced the person any other judicial officer of that court may, after consideration of the evidence recorded and in the presence of the person, make such order as the judicial officer who is absent could lawfully have made in C the proceedings in question if he had not been absent.

(3)(a) - (c). . .

(4)(a) Whenever a court reconsiders a sentence in terms of this section, it shall have the same powers as it would have had if it were considering sentence after conviction of a person and the procedure adopted at such proceedings shall apply mutatis D mutandis during such reconsideration: Provided that the court shall make no finding before it has considered a report of a parole board as contemplated in s 5C of the Correctional Services Act 8 of 1959.

(b) After a court has considered a sentence in terms of this section, it may -

(i)

confirm the sentence of imprisonment for an indefinite period, in which case the court shall direct that such person be brought before the court on the expiration of a further period determined by it, which E shall not exceed the jurisdiction of the court;

(ii)

convert the sentence into correctional supervision on the conditions it deems fit; or

(iii)

release the person unconditionally or on such conditions as it deems fit.

(5) - (7). . . . ' F

[5] Sections 286A and 286B were inserted into the Act by the Criminal Matters Amendment Act 116 of 1993 (which came into operation on 1 November 1993) mainly as a result of the findings and recommendations of the Booysen Commission of Inquiry into the 'Continued Inclusion of Psychopathy as a Certifiable Mental Illness and the Handling of Psychopathic and other Violent Offenders' (the G Booysen Commission).

The Booysen Commission's terms of reference were not confined to psychopaths or, to use the more modern terminology of the American Diagnostic and Statistical Manual of Mental Disorders IV, now generally used in South Africa, persons suffering from H anti-social personality disorder. It also investigated and made recommendations concerning the handling and release of dangerous, violent and/or sex offenders in general. It recommended, inter alia, that 'a new sentence option in respect of 'dangerous offenders' be created to provide for the imposition of an indeterminate sentence of imprisonment with a fixed minimum term as I determined by the court' (General Notice 49 published in the Government Gazette of 15 January 1993). Then followed the introduction of ss 286A and 286B in the Act. The declaration of an accused as a dangerous criminal in terms of these sections is now one of the two sentencing options provided for in the Act which results in imprisonment for an indeterminate period. The other is the declaration of an accused J

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as an habitual criminal in terms of s 286 of the Act, although s 286(2)(c) provides that the latter declaration A should not be made if the court is of the opinion that a sentence in excess of 15 years should be imposed.

[6] Legislative provision for preventive detention as a means of dealing with dangerous offenders is not uncommon in other jurisdictions. Floud and Young Dangerousness and Criminal Justice (1981, Heinemann, London) point out (at 102) that the laws B of most Western countries provide for the sentencing of dangerous offenders and refer to legislative provisions in Denmark, Sweden, Canada and the United States in this regard. The recent report, Scottish Executive: A Review of the Research Literature on Serious Violent and Sexual Offenders, an international survey of C the subject up to and including 1999, refers to dangerous offender legislation in a number of other countries including Australia and New Zealand. See also Amy M Lageman 'Dangerous Offender Legislation: A Short Term Solution to a Long Term Problem' (1997) 16 Dickinson Journal of...