S v Steyn

• Jurisdiction: South Africa
• Judge: Nugent JA, Griesel et Majiedt AJJA
• Judgment Date: 31 March 2010
• Docket Number: 444/09
• Hearing Date: 10 March 2010
• Court: Supreme Court of Appeal

Majiedt AJA: (Nugent JA and Griesel AJA concurring)

Appeal against refusal of a petition for leave to appeal against sentence – procedural irregularity and shortcomings in respect of the provisions contained in s 309B(5)(c)(ii) and s 309B(6) of the Criminal Procedure Act, 51 of 1977 – no reasonable prospects of success in an envisaged appeal against sentence.

[1] The appellant, Ms Mavis Pemella Steyn, was convicted on her plea of guilty in the regional court on charges of forgery, uttering and fraud. Counts one and two (forgery and uttering) were taken together for sentencing purposes and she was sentenced to two years' imprisonment, conditionally suspended for five years. On count three (fraud) the appellant was sentenced to five years' imprisonment in terms of s 276(1)(i) of the Criminal Procedure Act, 51 of 1977 (the Act). This appeal is against the sentence imposed.

[2] After leave to appeal had been refused by the trial court, the high court (Van Zyl J and Voges AJ) granted leave to the appellant to lead the further evidence of a social worker on sentence (this application to lead further evidence was filed together with a petition for leave to appeal). The matter was remitted to the trial court in terms of s 309C(7)(d) of the Act to receive the further evidence.

2010 JDR 0351 p3

Majiedt AJA: (Nugent JA and Griesel AJA concurring)

[3] The evidence of the social worker, Dr C C Wessels, was heard by the trial court in terms of s 309B(5)(c)(i) of the Act. No recordal of the trial court's findings and views relating to that evidence was made, as is required in s 309B(5)(c)(ii) (the further evidence recordal). [1]

[4] The petition and the further evidence of Dr Wessels served before Kruger and Van Zyl JJ (Voges AJ was unavailable at that time). Leave to appeal was refused by the learned judges.

[5] An application for leave to appeal the refusal of the petition was thereafter filed by the appellant. On the day before the hearing thereof, the further evidence recordal was filed at the registrar of the high court. At the hearing the prosecutor submitted that the interests of justice required that the sentence be set aside and remitted to the trial court for reconsideration. Kruger J (van Zyl J concurring) considered the high court to be functus officio and granted leave to appeal to this court.

[6] It is plain from the aforegoing exposition that the high court had considered the petition and dr Wessels' further evidence without the further evidence recordal before it. This is an irregularity, since s 309B(6) provides that any further evidence received under s 309B(5) shall for purposes of an appeal be deemed to be evidence taken or admitted at the trial. The further evidence would in my view also in terms of this deeming provision have to be regarded as part of the evidence in a subsequent petition for leave to appeal. Section 316(5)(c)(ii) and (6) contain...