S v Magqabi

• Jurisdiction: South Africa
• Citation: 2004 (2) SACR 551 (E)

S v Magqabi
2004 (2) SACR 551 (E)

2004 (2) SACR p551

Citation	2004 (2) SACR 551 (E)
Case No	CA&R10/97
Court	Eastern Cape Division
Judge	Pickering J, Kondile AJ and Lang AJ
Heard	May 11, 1998
Judgment	May 11, 1998
Counsel	Mr Glover for the appellant.; Name of counsel for the State not supplied.

Flynote : Sleutelwoorde H

Sentence — Habitual criminal — Declaration as in terms of s 286 of Criminal Procedure Act 51 of 1977 — Warning prior to declaration — Not necessary that, prior to warning, court must embark upon in-depth enquiry of similar nature to that which may precede declaration of accused as habitual criminal — Each I case must be decided in light of its own particular facts and circumstances — Even when court is considering declaration of accused as habitual criminal it cannot be said that such enquiry must always be conducted — What is always required is proper evaluation and analysis of accused's previous convictions and sentences by J

2004 (2) SACR p552

court in order to determine whether indeterminate sentence really appropriate — Fact of warning, or lack of it, A cannot fetter discretion of court in imposition of sentence — Warning not legal requirement and where such warning not given it in no way detracts from court's discretion to impose such sentence — Converse also true — Fact that accused previously received one or more justified warnings also not detracting from court's discretion to judge whether accused ought to be declared habitual criminal or B not.

Fraud — Sentence — Cheque fraud — Accused, 50-year-old father of four children, convicted of two counts of cheque fraud to value of R1 500 — Pleading guilty — Having 41 previous convictions for theft, fraud and housebreaking over period of 19 years — Two subsequent convictions — Sentence of five years' imprisonment and C at same time warning that he risked being declared habitual criminal confirmed on appeal.

Headnote : Kopnota

Per Pickering J, Lang AJ concurring, Kondile AJ dissenting: It is not necessary that, prior to warning an accused that the court may warn her or him that she or he may be declared an D habitual criminal if convicted again in the future, it must embark upon an in-depth enquiry of a similar nature to that which may precede the declaration by the court of the accused as an habitual criminal, where an enquiry of this nature would entail, inter alia, that notice be given to the accused that the court has it in mind to warn her or him of the provisions of s 286 of the Criminal Procedure Act 51 of 1977 and that she or he be given an opportunity of dealing with this issue. Each case must be decided in the light of its own particular E facts and circumstances. Even when a court is considering the declaration of the accused as an habitual criminal, it cannot be said that such an enquiry must always be conducted. What is always required is a proper evaluation and analysis of the accused's previous convictions and sentences by the court in order to determine whether the indeterminate sentence is really appropriate. The fact of the F warning, or the lack of it, cannot fetter the discretion of the court in the imposition of sentence. The warning, whilst desirable and a practice usually followed, is not a legal requirement and where such a warning has not been given it in no way detracts from the court's discretion to impose such a sentence. The converse is also true. The fact that an accused has previously received one or more justified warnings can also not detract from the court's discretion to judge in G the circumstances of each particular case whether the accused ought to be declared an habitual criminal or not. The warning given to the accused does not therefore carry with it as an inevitable corollary that the next conviction of the accused will result in her or his declaration as an habitual criminal. The purpose it serves is to bring home to the accused the dangerous path which she or he is treading and H to give a warning that should it not be heeded and another conviction follows, she or he will, in the opinion of the court issuing the warning, in all probability be declared an habitual criminal. (At 554f - i and 555g - j.)

The accused, a 50-year-old father of four children, was convicted of two counts of cheque fraud to the value of R1 500. He pleaded guilty. He had 41 previous convictions for theft, fraud and housebreaking over I a period of 19 years. He had two subsequent convictions. He was sentenced to five years' imprisonment and at the same time warned that he risked being declared an habitual criminal. On appeal (per Lang AJ, Pickering J concurring, Kondile AJ dissenting), the sentence of five years and the warning were confirmed. J

2004 (2) SACR p553

Annotations:

Cases cited

Reported Cases

R v Munyenyewa 1966 (3) SA 667 (R): applied A

R v Zonele and Others 1959 (3) SA 319 (A): applied

S v Anderson 1964 (3) SA 494 (A): referred to

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

S v Gunthenhöner 1990 (1) SACR 642 (W): compared B

S v Kalane 1988 (2) SA 206 (O): referred to

S v Mache 1980 (3) SA 224 (T): applied

S v Mandoro 1978 (1) SA 1186 (RA): applied

S v Muller 1975 (2) SA 239 (C): referred to

S v Schutte 1995 (1) SACR 344 (C): referred to

S v Sindhi 1993 (2) SACR 371 (A): compared C

S v V 1972 (3) SA 611 (A): referred to

S v Wayi 1994 (2) SACR 334 (E): applied

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

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 286: see Juta's Statutes of South Africa 2003 vol 1 at D 1-385.

Case Information

Appeal from a sentence imposed in a regional court. The facts appear from the reasons for judgment of Kondile AJ and Lang AJ. The judgment for the majority of the Court was written by Lang AJ, Pickering J concurring. Kondile AJ handed down a separate and dissenting judgment. E

Mr Glover for the appellant.

Name of counsel for the State not supplied.

Judgment

Pickering J:

This appeal against sentence was initially argued before Kondile AJ and Lang AJ, who, unfortunately, could not agree on the outcome. The Court was accordingly reconstituted and the matter was re-argued before them and F myself.

I have had the privilege of reading the respective judgments prepared by them from which it appears that whereas Lang AJ is of the view that the appeal should be dismissed, the view of Kondile AJ is that the appeal should, to a certain extent, succeed. I agree fully, with respect, with the views expressed by Lang AJ in his judgment and I am G satisfied, for the reasons advanced by him therein, that the magistrate did not in any way misdirect himself in his approach to sentence. I would merely add that it is clear, in my view, that the past punishment imposed upon the appellant has had no deterrent effect and that the stage has been reached when, for the protection of the community, the appellant must be physically prevented from continuing his criminal H activities. I agree, therefore, that there is no merit in the appeal and that it falls to be dismissed.

There is, however, one aspect of the matter with which I wish to deal in the light of what is stated thereanent by Kondile AJ in his judgment. This relates to the finding by Kondile AJ that the warning I given by the magistrate to the appellant that he was in danger of being declared an habitual criminal was 'premature, inappropriate and unduly prejudicial' to him and that the said warning should be expunged from the appellant's criminal record. With respect, I cannot agree with this J

2004 (2) SACR p554

Pickering J

criticism and conclusion. I am of the view that the magistrate was in the circumstances of this case wholly justified in so warning the A appellant.

Mr Glover, who appeared for the appellant, submitted with regard to the warning given by the magistrate that such warning was not justified inasmuch as the last four offences committed by appellant immediately preceding the transgressions with which we are presently concerned, were relatively minor, if not trivial, consisting as they did of the theft of toiletries; an air freshener; locks and make-up. B Although the value of the articles stolen by appellant on each such occasion was relatively low, they were not essential items and it would seem that the appellant had resorted to shoplifting in order to obtain them. In the circumstances it cannot, in my view, properly be said that the offences were of a trivial nature. Even were I to be wrong in this C view, I am of the opinion that what was said by Davies JA in S v Mandoro 1978 (1) SA 1186 (RA) at 1189B - C should be borne in mind, namely:

'It may be that if the offence which has then been committed is of a completely trivial nature, there is room for the exercise of the court's discretion and the court can properly give an offender another D chance. But even on this basis he should perhaps be advised that, if he persists in committing only relatively trivial offences, in due course this would justify the indeterminate sentence.'

In my view, in the case of the appellant, that time had indeed arrived and appellant was fortunate that, in the light of the practice which has developed of not declaring an accused an habitual criminal unless he has previously been warned that such a sentence might be E imposed on a further conviction, the magistrate chose rather to issue such a warning to him.

Kondile AJ would appear to be of the view that prior to warning an accused the court must embark upon an in-depth enquiry of a similar F nature to that which may precede the declaration by the court of the accused as an habitual criminal. An enquiry of this nature would entail, inter alia, that notice be given to the accused that the court has it in mind to warn him of the provisions of s 286 of the Criminal Procedure...