S v Cotenberg

• Jurisdiction: South Africa
• Judgment Date: 30 May 2014
• Citation: 2015 (2) SACR 56 (WCC)

S v Cotenberg
2015 (2) SACR 56 (WCC)

2015 (2) SACR p56

Citation	2015 (2) SACR 56 (WCC)
Case No	A 404/2004
Court	Western Cape Division, Cape Town
Judge	Henney J, Dolamo J and Mantame J
Heard	May 30, 2014
Judgment	May 30, 2014
Counsel	Ms De Jongh for the appellant.; Ms Riley for the state.

Flynote : Sleutelwoorde

B Court — High Court — Full court — Absence of member of — Where all judges who constituted court on previous occasion no longer available, no reason why matter could not start de novo — Provisions of s 17(2) of Supreme Court Act 59 of 1959 and s 14(5) of Superior Courts Act 10 of 2013 had to be interpreted purposively.

C Appeal — Postponement of — Power of court — Postponement sine die — Court fully entitled to postpone appeal in terms of provisions of s 22 of Supreme Court Act 59 of 1959 — Although no prohibition against postponing sine die, process had to be properly managed and it was proper to set specific date for postponement.

Headnote : Kopnota

D The appellant was convicted in a regional magistrates' court on counts of possession of a firearm and ammunition as well as pointing a firearm and of committing a nuisance by unlawfully discharging a firearm. The counts were taken together for the purposes of sentence and he was sentenced to E three years' imprisonment. He appealed against the conviction and sentence and when the matter came before the court in 2004 it was postponed sine die for the purposes of obtaining a probation officer's report. The report was made available in 2005 but the matter was not re-enrolled until 2014 due to an oversight in the office of the Director of Public Prosecutions. In the meantime the permanent judge who had sat on the appeal had retired F and the acting judge never returned to act and it was unclear what had become of him. The court requested argument on whether the previous court was seized with the matter when it postponed it sine die for a correctional supervision report, and, if so, whether the court was lawfully constituted and competent to deal de novo with and finalise the appeal in the light of the unavailability of the previous court. The court also requested G argument on whether a court in a criminal appeal could postpone a matter sine die.

Held, that the court was fully entitled to postpone the matter in terms of its powers derived from s 22 of the Supreme Court Act 59 of 1959. (Paragraph [10] at 61b.)

Held, further, that the provisions of s 17(2) of the Supreme Court Act and s 14(5) H of the current Superior Courts Act 10 of 2013 had to be interpreted purposively and there was no reason why, when all the judges who constituted the court on the previous occasion were no longer available, the matter could not start de novo. A narrow interpretation of the two sections could mean that a matter could start de novo where the remaining judges did not constitute a majority but not where all the judges were no longer I available. Such an interpretation could lead to absurdities and the court on the present occasion was properly constituted. It would in any event be undesirable to send it back to the court a quo. (Paragraph [13] at 62c–g.)

Held, further, that although there was no prohibition against postponing a criminal appeal sine die, the process had to be properly managed and monitored to ensure that the matter was not lost in the system. It would be J proper to postpone the matter to a specific date so as to enable the court

2015 (2) SACR p57

to have judicial oversight on progress made and to take appropriate steps A where there was any undue delay. (Paragraph [15] at 63a–b.)

The court held on the evidence that all of the convictions other than that of the unlawful possession of a firearm and ammunition had to be set aside and it then turned to consider the issue of sentence. It was submitted for the appellant that his circumstances which had been presented to the court at the time of sentencing had since changed for the better and that in the B exceptional circumstances of the case the court should take into consideration his current circumstances in meting out an appropriate sentence. (Paragraph [34] at 68e–f.)

Held, that sending the appellant to prison would not serve any purpose, and in considering what sentence would be appropriate, his current personal circumstances were to be taken into consideration. The inordinate delay in C finalising the matter was a significant factor to take into consideration. The appellant had to wait in anguish for 10 years for the matter to be finalised. In the circumstances an appropriate sentence would be a fine of R3000 or 12 months' imprisonment and a further 12 months' imprisonment suspended for three years on certain conditions. (Paragraph [39] at 69h.) D

Cases cited

Brossy v Brossy [2012] ZASCA 151: referred to

S v Gqeba and Others 1989 (3) SA 712 (A): referred to E

S v Jaftha 2010 (1) SACR 136 (SCA) ([2010] 1 All SA 403): applied

S v Mazongolo 2013 (1) SACR 564 (WCC): referred to

S v Michele and Another 2010 (1) SACR 131 (SCA) ([2010] 1 All SA 446): applied

S v Shackell 2001 (2) SACR 185 (SCA) (2001 (4) SA 1; [2001] 4 All SA 279): referred to F

S v Toba and Mendu (case No CA & R 962/2002): referred to

S v Tshabalala (case No A 74/2011): referred to.

Legislation cited

Statutes

The Supreme Court Act 59 of 1959, ss 17(2) and 22, since repealed by the Superior Courts Act 10 of 2013

The Superior Courts Act 10 of 2013, s 14(5): see Juta's Statutes of South Africa 2013/14 vol 1 at 2-280. G

Case Information

Ms De Jongh for the appellant.

Ms Riley for the state.

An appeal against a conviction and sentence in a regional magistrates' H court.

Order

(1)

The appeal succeeds.

(2)

The convictions of the appellant on count 3 and 4, ie pointing of a I firearm in contravention of s (1)(i) read with ss 1 and 39(2)(d) of the Arms and Ammunition Act, and causing a nuisance by unlawfully discharging a firearm in contravention of reg 2 read with regs 1, 4 and 5 of Provincial Notice 134/1974, are set aside.

(3)

The sentence of three years' imprisonment imposed by the magistrate is set aside and replaced with the following: J

2015 (2) SACR p58

A 'R3000 or 12 months' imprisonment. A further 12 months' imprisonment wholly suspended for three years on condition the accused is not found guilty of a contravention ss 90, 91, 92, 93 and 94 of the Firearms Control Act 62 of 2000'.

Judgment

Dolamo J (Henney J and Mantame J concurring): B

Background

[1] The appellant in this matter appeared in the regional court facing four counts relating to the contraventions of the provisions of the now repealed Arms and Ammunition Act 75 of 1969. These counts were C possession of a firearm [1] and ammunition [2] without being the holder of a valid licence, pointing a firearm, [3] and committing a nuisance by unlawfully discharging the said firearm.

[2] At some stage the counts were withdrawn against the appellant. D These counts were, however, later reinstated, the appellant having been brought to court with a summons issued in terms of the provision of s 54 of the Criminal Procedure Act 51 of 1977 (the CPA). On 1 November 2002 the four charges were put to appellant. He pleaded guilty to possession of the firearm and ammunition, but not guilty to pointing the said firearm or causing a nuisance by discharging it.

E [3] In his plea explanation in terms of s 112(2) of the CPA the appellant admitted that on 17 December 2000 he was found in unlawful possession of the firearm and ammunition, and that he did not have a valid licence or authorisation to be in possession of such firearm. He is alleged to have purchased the firearm from a policeman who had promised to F apply for a licence on his behalf, and who by then had not yet obtained such licence for him. On the counts of pointing a firearm and discharging it in a public place, appellant's plea explanation was that he was on his way home when he was attacked by a person or persons and, in self-defence, fired shots to ward off the unlawful attack.

[4] At the end of a trial in which two state witnesses testified and G appellant also testified in his defence, he was also found guilty of the counts to which he had pleaded not guilty. He was sentenced on counts 1, 2 and 3 to imprisonment for three years. All these counts were taken together for purposes of sentencing. Appellant was also cautioned and discharged on count 4. I shall return in due course to analyse the H evidence led in the trial, the magistrate's reasoning in rejecting the appellant's version and convicting him as charged, as well as the reasons for imposing a sentence of direct imprisonment. I deal first with the circumstances that followed his conviction and which led to the constitution of this full court to hear the appeal.

[5] Upon his conviction and sentence the appellant gave notice of his I intention to appeal against his conviction and sentence. He also applied for

2015 (2) SACR p59

Dolamo J (Henney J and Mantame J concurring)

and was released on bail of R1000 pending appeal. On 29 October 2004 A the appeal came before a court of appeal constituted by a judge of this court and an acting judge. After hearing argument the appeal court postponed the matter sine die, and ordered that a correctional supervision report on the circumstances of the appellant be obtained. After a lengthy delay, allegedly due to the changes in the department of B correctional services, a report was finally made available in 2005. [4] The matter, however, was never re-enrolled to have it finalised. This court was advised by counsel for the state, Ms Riley, that the failure to place the matter on the roll again was due to an administrative oversight in the office of the Director of Public Prosecutions. In the meantime the C ...