S v Pillay

• Jurisdiction: South Africa
• Court: KwaZulu-Natal High Court, Pietermaritzburg
• Judge: Swain J and Henriques J
• Judgment Date: 26 June 2012
• Citation: 2012 JDR 1107 (KZP)
• Hearing Date: 21 June 2012
• Docket Number: AR 483/05

Swain J:

[1]

As long ago as 09 March 2005 the appellant was sentenced by the Regional Court at Durban, to six years' imprisonment, half of which was suspended for a period of three years, on condition that the appellant was not convicted of theft or attempted theft, committed during the period of suspension and for which the appellant was sentenced to a term of imprisonment. This sentence was imposed upon the appellant, as a consequence of his conviction on a charge of the theft of trust monies in the sum of R207,546.29, being the property of trust creditors of the appellant, in his practise of an attorney, following upon a plea of guilty by the

2012 JDR 1107 p2

Swain J

appellant. With the leave of the Court a quo, the appellant appeals against the sentence imposed.

[2]

The argument advanced by Mr. Aboobaker S C, who together with Mr. Winfred, appeared on behalf of the appellant, was based mainly upon the proposition that regard being had to the inordinate delay in the finalisation of the appeal, together with evidence of events which occurred in the intervening period, this Court would be entitled to reconsider the sentence imposed upon the appellant. In order to achieve this objective the appellant applied for leave to place evidence before this Court and for such evidence to be taken into account, in the adjudication of the appeal against sentence. The respondent did not oppose the application and filed no answering affidavits dealing with the evidence tendered by the appellant.

[3]

In terms of Section 309 (3) read with Section 304 (2) of the Criminal Procedure Act No. 51 of 1977 and Section 22 of the Supreme Court Act No. 59 of 1959, this Court sitting as a Court of Appeal, can hear further evidence, or direct that it be heard, in respect of any matter that is before it on appeal.

[4]

As regards the exercise by this Court of such a discretion, the following words of Cloete J A in

S v E B
2010 (2) SACR 524 at 528 para 5

are apposite.

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Swain J

"Despite the wide wording of the statutory provisions, this court has laid down requirements which must be complied with before it would be prepared to hear evidence on appeal. Those requirements were summarised in S v De Jager, have been 'applied in countless cases since' and are as follows:

'(a)

There should be some reasonably sufficient explanation, based on allegations which may be true, why the evidence which it is sought to lead was not led at the trial.

(b)

There should be a prima facie likelihood of the truth of the evidence.

(c)

The evidence should be materially relevant to the outcome of the trial.'

The same requirements apply equally to any court sitting as a court of appeal: S v A. In addition, the general rule is that an appeal court will decide whether the judgment appealed from (and that includes a judgment on sentence) is right or wrong, according to the facts in existence at the time it was given, not according to new circumstances subsequently coming into existence. Nevertheless, this court has previously indicated that the rule is not necessarily invariable, and the rule has recently been relaxed to allow evidence to be adduced on appeal, of facts and circumstances which arose subsequent to the sentence imposed, where there were exceptional or peculiar circumstances present: S v Karolia, S v Michele, S v Jaftha, and also where there were misdirections by the court which imposed sentence, which had the effect that the appeal court was at large to impose the sentence it considered appropriate: S v Barnard. (It is not necessary for present purposes to consider whether this latter situation should be subject to particular safeguards to prevent an abuse of the appeal procedure.) The more liberal approach by this court, shown by a comparison of the decision in Verster (where the court refused to take into consideration a delay in the hearing of an appeal as a reason for altering a sentence imposed by a magistrate) and the decision in Michele (where such evidence was taken into account and the sentence reduced), must not be interpreted as a willingness to open the floodgates. In cases such as the present, where the facts and circumstances

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Swain J

arose after sentence, the application must be carefully scrutinised to ascertain whether it does indeed disclose exceptional or peculiar circumstances. It is undesirable to attempt to define these concepts further".

S v de Jager
1965 (2) SA 612 (A) at 613 A

S v A
1990 (1) SACR 534 (C) at 540 c – d

S v Karolia
2006 (2) SACR 75 (SCA)

S v Michele
2010 (1) SACR 131 (SCA)

S v Jaftha
2010 (1) SACR 136 (SCA)

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

[5]

In Michele the Supreme Court of Appeal was satisfied that as regards the sentence imposed by the trial court, it had not exercised its discretion properly and the appeal court was accordingly entitled to interfere with the sentence. The "lamentable delay" (at 135 c) in the finalisation of the appeal of a period of six years, was however considered in the context of the mental anguish the appellants must have suffered because of a lack of "clarity as to their future" during this period, as being a factor which the appeal court should have regard to in the assessment of an appropriate sentence.

[6]

However, in Jaftha, the Supreme Court of Appeal was satisfied that there were no misdirections to be found in the sentence imposed by the Magistrate, such that the Appeal Court would not ordinarily interfere with the sentence. However, because of a delay of ten years in the finalisation of the appeal the Supreme Court of Appeal, in the light of the evidence of events in the intervening period, was satisfied the sentence imposed ten years ago should be set aside and a new sentence considered.

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Swain J

[7]

In Karolia the Supreme Court of appeal was satisfied that the sentence imposed upon the appellant of correctional supervision was "startlingly inappropriate and grossly lenient" (at 93 b) and that a sentence of imprisonment was "plainly warranted". However, the Supreme Court of Appeal was satisfied that there were "exceptional and peculiar circumstances which occurred in this case subsequent to the imposition of sentence which it would be proper and just for this Court to take into account when considering an appropriate sentence". (at 93 i). These factors were that the accused had by the date of appeal, served the sentence imposed upon him by the Court a quo and had paid the sum of R250,000.00 which had been distributed to the minor children of the deceased, in accordance with the order of the Court a quo and which was probably...