S v Smith
Jurisdiction | South Africa |
Judge | Moloi J and Snellenburg AJ |
Judgment Date | 27 June 2013 |
Citation | 2014 (2) SACR 190 (FB) |
Docket Number | A 02/2013 |
Hearing Date | 03 June 2013 |
Counsel | K Pretorius for the appellant.S Giorgi for the state. |
Court | Free State Division, Bloemfontein |
Snellenburg AJ (Moloi J concurring):
[1] G The appellant was convicted on 1 June 2011 in the Kroonstad Regional Court on a count of housebreaking with the intent to steal and theft.
[2] The appellant and one James Delheme Khumalo broke into the H business premises of Jimmy Moloi during or about 12 – 13 June 2010, where they unlawfully and intentionally stole a hi-fi, clothes and other items to the value of R31 960.
[3] Pursuant to the conviction and after proof of his previous convictions the regional magistrate declared the appellant a habitual criminal in I terms of the provisions of s 286(1) of the Criminal Procedure Act 51 of 1977 (the CPA).
[4] The appellant's application for leave to appeal against the conviction and sentence was dismissed by the court a quo. The appellant appeals against the said sentence with leave granted on petition. J
Snellenburg AJ (Moloi J concurring)
A [5] Section 286(1) of the CPA provides:
'Subject to the provisions of subsection (2), 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 habitually commits offences and that the community should be protected against him, declare him an habitual criminal, in lieu of the imposition of any other punishment for B the offence or offences of which he is convicted.'
The provisions of s 286(2) do not find application in the present matter. Section 286(3) provides that the person declared a habitual criminal shall be dealt with in accordance with the laws relating to prisons.
C [6] In terms of s 65(4)(b)(iv) of the Correctional Services Act 8 of 1959, subject to the remedial reading-in after the word 'parole', of the words 'provided that no such prisoner shall be detained for a period exceeding fifteen years', as declared in S v Niemand 2001 (2) SACR 654 (CC) (2002 (1) SA 21), the effect of the declaration as a habitual criminal is that such person 'shall be detained in prison until, after a period of at D least seven years, is placed on parole, provided that no such prisoner shall be detained for a period exceeding fifteen years'.
[7] Section 286(1) has been the subject of much debate, specifically with regard to what is expected of the sentencing court before a declaration E can be made that a person is a habitual criminal.
[8] This is undoubtedly so because, whilst accepting that s 286 serves a useful sentencing purpose which is now (after the Constitutional Court's declaration referred to above) consistent with the Constitution and its fundamental values, [1] it is admittedly a drastic and exceptional punishment. See S v Van Eck 2003 (2) SACR 563 (SCA) para 10; S v Masisi F 1996 (1) SACR 147 (O) at 152d.
[9] The requirements for a declaration under s 286(1) of the CPA were succinctly summarised by the Supreme Court of Appeal in S v Van Eck supra para 9:
G 'The requirements for a declaration under s 286(1) of the Act are therefore: (i) the Court must be satisfied (in the sense of convinced; see S v Makoula 1978 (4) SA 763 (SWA) at 768B – E) both that the accused habitually commits crimes and that those crimes are of such a nature that the community should be protected from the accused for at least a period of seven years; (ii) the accused must not be under the age H of 18 years, and (iii) a punishment is warranted which does not exceed 15 years' imprisonment. However, even if all these requirements are satisfied the court retains a discretion whether or not to make a declaration under s 286(1); it may in the exercise of its discretion impose some other appropriate sentence. The discretion is to be exercised in the light of all the relevant circumstances and in accordance with the ordinary principles governing the sentencing of I offenders.'
[10] Although s 286 contains no requirement that an accused person must be warned that he is at risk of being declared a habitual criminal
Snellenburg AJ (Moloi J concurring)
prior to such a declaration being made (see S v Van Eck supra; A S v Masisi supra), and the fact that a warning has been given or not does not fetter the discretion of the court to impose such a sentence (see S v Magqabi 2004 (2) SACR 551 (E)), it is notwithstanding a well-settled practice not to declare a person a habitual criminal without prior warning, save in exceptional circumstances. B
[11] This practice, which was laid down by the Appellate Division, was thoroughly investigated in S v Mache 1980 (3) SA 224 (T) and S v Erasmus 1987 (4) SA 685 (C). In the words of Scott JA in the Van Eck case supra para 9:
'A court will not ordinarily make a declaration in the absence of a prior C warning to the accused of the provisions of s 286.'
[12] It has been held consistently that the fact that the appellant was declared a habitual criminal without prior warning that he was running the risk of such declaration constitutes a factor which a court of appeal may consider when adjudicating whether the trial court exercised its discretion reasonably/judicially. See S v Erasmus supra at 691C. D
[13] The regional magistrate after consideration of the appellant's previous convictions came to the conclusion that the appellant habitually commits offences and that the community should be protected from him. It is common cause that the magistrate came to this conclusion E based solely on the appellant's criminal record which was contained in the SAP 69 form (criminal record).
[14] The debate regarding s 286(1) has been mainly concerned with what would be required for a court to be 'convinced' that the jurisdictional requirements of s 286(1) have been met so that the sentencing F court could be said to have exercised its discretion judicially when making the declaration. In S v Nawaseb 1980 (1) SA 339 (SWA) it was held that a list of previous convictions without an investigation into the circumstances in which the previous crimes were committed could never be sufficient in itself to convince the sentencing court that a person habitually commits offences and that the community should be protected from him. G
[15] In S v Mache supra and S v Erasmus supra the aforementioned 'investigation', as prerequisite before a court could be 'convinced' that the jurisdictional requirements that would justify the...
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2014 index
...91S v Smith 2012 (1) SACR 567 (SCA) .................................................... 223, 226S v Smith 2014 (2) SACR 190 (FB) ...................................................... 461S v Stander 2012 (1) SACR 537 (SCA) ................................................. 238S v Steenberg ......
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S v Smith
...2001 (2) SACR 654 (CC) (2002 (1) SA 21): referred to 2019 (1) SACR p501 S v Shabalala 2006 (1) SACR 328 (N): referred to A S v Smith 2014 (2) SACR 190 (FB): referred S v Stenge 2008 (2) SACR 27 (C): referred to S v Van Eck 2003 (2) SACR 563 (SCA): referred to. Legislation cited Statutes The......
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S v Ntonga
...58, 2017] 28-24A [5] 1978 (4) SA 763 (SWA) at 766G [6] 1953 (4) SA 461 (A) at 463B – C. [7] 2003(2) SACR 563 (SCA) at 567f [8] 2014 (2) SACR 190 (FB) at para 10 [9] 2003 (2) SACR 563 (SCA) [10] 1996 (1) SACR 147 (O) ...
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S v Brand
...(4) SA 855 (A): referred to E S v Rall 1982 (1) SA 828 (A): referred to S v Siebert 1998 (1) SACR 554 (SCA): referred to S v Smith 2014 (2) SACR 190 (FB): referred S v Trichardt 2014 (2) SACR 245 (GJ): referred to S v Van Eck 2003 (2) SACR 563 (SCA): dictum in para [10] applied S v Wayi 199......
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S v Smith
...2001 (2) SACR 654 (CC) (2002 (1) SA 21): referred to 2019 (1) SACR p501 S v Shabalala 2006 (1) SACR 328 (N): referred to A S v Smith 2014 (2) SACR 190 (FB): referred S v Stenge 2008 (2) SACR 27 (C): referred to S v Van Eck 2003 (2) SACR 563 (SCA): referred to. Legislation cited Statutes The......
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S v Ntonga
...58, 2017] 28-24A [5] 1978 (4) SA 763 (SWA) at 766G [6] 1953 (4) SA 461 (A) at 463B – C. [7] 2003(2) SACR 563 (SCA) at 567f [8] 2014 (2) SACR 190 (FB) at para 10 [9] 2003 (2) SACR 563 (SCA) [10] 1996 (1) SACR 147 (O) ...
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2014 index
...91S v Smith 2012 (1) SACR 567 (SCA) .................................................... 223, 226S v Smith 2014 (2) SACR 190 (FB) ...................................................... 461S v Stander 2012 (1) SACR 537 (SCA) ................................................. 238S v Steenberg ......