S v Manyaka

• Jurisdiction: South Africa
• Citation: 2022 (1) SACR 447 (SCA)

S v Manyaka
2022 (1) SACR 447 (SCA)

2022 (1) SACR p447

Citation	2022 (1) SACR 447 (SCA)
Case No	434/2020
Court	Supreme Court of Appeal
Judge	Mocumie JA, Schippers JA, Carelse JA, Mabindla-Boqwana JA and Phatshoane AJA
Heard	September 14, 2021
Judgment	February 23, 2022
Counsel	J Engelbrecht SC for the applicant.; A Coetzee for the state.

Flynote : Sleutelwoorde

Sentence — Serving of — Applicant turned away by correctional authorities when reporting to serve sentence — Authorities informing him that not in possession of his papers and would arrange later for his incarceration — Authorities only enforcing warrant of committal six and a half years later — Period of 15 years between commission of offence and commencement of imprisonment — Accused now 35 years of age with three children — Change of circumstances after imposition of sentence justifying interference with original sentence — Matter remitted to trial court for obtaining of probation officer's report for possible imposition of correctional supervision.

Appeal — Against sentence — Facts and circumstances occurring after imposition of sentence — Changed circumstances several years after imposition of sentence justifying interference with original sentence.

Sentence — Imprisonment — Correctional Services failing for many years to revert to accused who had reported to serve sentence but for whom they had no papers — Changed circumstances of offender over period of 15 years entitling court on appeal to interfere with original sentence.

Headnote : Kopnota

The applicant, who was 20 years of age at the time of the commission of the offences, was convicted in a magistrates’ court of two counts of culpable homicide arising out of a motor vehicle collision. He was sentenced on the first count to three years’ imprisonment in terms of s 276(1)(i) of the Criminal Procedure Act 51 of 1977 (the CPA). This meant that he had to serve a minimum of one-sixth of the sentence imposed before he could be considered for correctional supervision. On the second count, he was sentenced to three years’ imprisonment, wholly suspended for five years on condition that he was not convicted of culpable homicide involving the driving of a motor vehicle.

2022 (1) SACR p448

He appealed to the High Court where the full bench, in exercising its powers of review, set aside a further conviction on the ground that there was no evidence of reckless or negligent driving. In respect of the sentence imposed for the offences of culpable homicide, the court found that the magistrate had committed a misdirection, and that the two counts should have been taken as one for the purpose of sentence, and that there was only one incident that resulted in two deaths. It set aside those sentences and replaced them with a sentence of four years’ imprisonment in terms of s 276(1)(b) of the CPA, of which one year was suspended for five years. The result of the appeal was that, instead of the applicant serving a possible one sixth of his sentence of imprisonment, he would have to serve a three-year period of imprisonment. The imposition of a heavier sentence was done without notice to the applicant, which was erroneous. The applicant duly handed himself over to the correctional-services centre to serve his sentence, but was told that they were not in possession of his court records and could therefore not detain him. He was told to go home, and they would arrange to take him to the correctional centre once they had the necessary records. The applicant stayed for six and a half years in the same house without any attempt by the authorities to enforce his sentence. In the meantime he married and, at the time when a warrant of arrest was issued for his arrest, his wife was expecting their third child. He brought an urgent application in the High Court to stay the warrant pending an application for reconsideration of the appeal within 15 days. The court granted the application and he accordingly applied further to the Supreme Court of Appeal for special leave to appeal the judgment and order of the full bench and to lead further evidence, but did not bring this application within the stated period of 15 days. The state conceded that he had good prospects of success because of the irregularity committed by the full bench in increasing the sentence, and did not oppose an application for condonation.

Held, per Carelse JA (Mocumie JA and Mbandla-Boqwana JA concurring), that in such exceptional circumstances, the condonation application and the application to lead further evidence had to be granted, and that the sentence imposed by the full bench could not stand. (See [10]–[12].)

Held, further, that the applicant was not the cause of the inordinate delay that had occurred before his being required to serve his sentence: the changed circumstances between the imposition of sentence and the putting into effect of the sentence, namely the applicant’s age; his marriage and having become a father; and that over the 15 years he had led a socially responsible and crime-free life, meant that a sentence of correctional supervision would be the most appropriate sentence. (See [15].)

Held, further, that the court could not itself substitute the sentence, as the Department of Correctional Services had not filed a report as required under s 276(1)(h) of the CPA, and without a report from a probation officer or correctional official the court would not be in a position to impose such sentence. Therefore, it would be appropriate to remit the matter to the magistrate to obtain such a report and consider imposing sentence afresh. (See [22].)

Held, per Schippers JA and Phatshoane AJA, dissenting, that the applicant and his attorneys were solely responsible for the delay after the granting of the stay of execution of the sentence, and condonation for the late filing of the application for leave to appeal was inappropriate. (See [36].)

Held, further, that there was nothing extraordinary or markedly unusual about the applicant’s personal circumstances: the changed personal circumstances that had come into existence after he was sentenced, were irrelevant and could not become relevant by effluxion of time. The applicant had not made out a case of exceptional circumstances for the admission of the

2022 (1) SACR p449

further evidence and it was not in the interests of justice that it be admitted. The sentence originally imposed by the magistrate could not be faulted. (See [40], [51] and [58].)

Cases cited

Avnit v First Rand Bank Ltd [2014] ZASCA 132: referred to

MV Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas, and Another 2002 (6) SA 150 (C): referred to

R v Swanepoel 1945 AD 444: dictum at 448 applied

R v Verster 1952 (2) SA 231 (A): qualified

S v Bogaards 2013 (1) SACR 1 (CC) (2012 (12) BCLR 1261; [2012] ZACC 23): applied

S v Botha [2017] ZASCA 148: dictum in para [46] applied

S v De Beer 2018 (1) SACR 229 (SCA) ([2017] ZASCA 183): referred to

S v Holder 1979 (2) SA 70 (A): referred to

S v Ingram 1995 (1) SACR 1 (A) ([1995] 3 All SA 121): dictum at 9e – f applied

S v Jaftha 2010 (1) SACR 136 (SCA) ([2010] 1 All SA 403): dictum in para [15] applied

S v Karolia 2006 (2) SACR 75 (SCA) ([2004] 3 All SA 298): referred to

S v Kruger 1995 (1) SACR 27 (A): dictum at 31b – f applied

S v Liesching and Others 2019 (1) SACR 178 (CC) (2019 (4) SA 219; 2018 (11) BCLR 1349; [2018] ZACC 25; 2018 JDR 1448): referred to

S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC) (2008 (3) SA 232; 2007 (12) BCLR 1312; [2007] ZACC 18): dictum in para [59] applied

S v Malgas and Another 2013 (2) SACR 343 (SCA) ([2013] ZASCA 90): referred to

S v Matyityi 2011 (1) SACR 40 (SCA) ([2010] 2 All SA 424; [2010] ZASCA 127): referred to

S v Morris 1972 (2) SA 617 (A): referred to

S v Moswathupa 2012 (1) SACR 259 (SCA) ([2011] ZASCA 172): referred to

S v Mthembu 2010 (1) SACR 619 (CC) ([2010] ZACC 8): referred to

S v Naicker 1996 (2) SACR 557 (A) ([1997] 1 All SA 5; [1996] ZASCA 138): applied

S v Ningi and Another 2000 (2) SACR 511 (A): dictum in para [9] applied

S v Nyathi 2005 (2) SACR 273 (SCA): dicta in paras [14] – [22] applied

S v Omar 1993 (2) SACR 5 (C): applied

S v R 1993 (1) SACR 209 (A) (1993 (1) SA 476; [1993] 1 All SA 326): dictum at 214j – 215c applied

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

S v Seegers 1970 (2) SA 506 (A): dicta at 512G – H referred to

2022 (1) SACR p450

Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) 2008 (2) SA 472 (CC) (2008 (4) BCLR 442; [2007] ZACC 24): referred to.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, ss 276(1)(b), (h) and (i): see Juta's Statutes of South Africa 2020/21 vol 1 at 2-345.

Case Information

J Engelbrecht SC for the applicant.

A Coetzee for the state.

An application to adduce further evidence on appeal and for special leave to appeal.

Order

1.

The application for condonation is granted.

2.

The application for special leave to appeal is granted.

3.

The application to lead further evidence is granted.

4.

The appeal on sentence in respect of counts 1and 2 is upheld.

5.

The order of the Gauteng Division of the High Court, Pretoria, is set aside on counts 1 and 2.

6.

The matter is remitted to the magistrate to impose sentence afresh, in respect of those counts, after due compliance with the provisions of s 276A(1)(a) of the Criminal Procedure Act 51 of 1977.

7.

A report of a probation officer and/or a correctional official must be obtained within six weeks of delivery of this judgment.

Judgment

Carelse JA (Mocumie JA and Mabindla-Boqwana JA concurring):

[1] This is an application for special leave to appeal that came before this court, some 15 years after the incident, some 13 years after the applicant was convicted and sentenced by the...