R E A S O N S F O R J U D G M E N T. applicant also being tried on a further charge of indecent assault. It was alleged

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA (SOUTH EASTERN CAPE LOCAL DIVISION) In the matter between Case No.: CC15/02 Date available: LIONEL FOURIE First Applicant TONY McCARTHY Second Applicant NATHAN NIEKERK Third Applicant SEPSTONE JACOBS Fourth Applicant and THE STATE Respondent R E A S O N S F O R J U D G M E N T LEACH, J: Arising out of an incident which occurred on 19 December 1999, the four applicants were tried in the regional court on a charge of rape with the first applicant also being tried on a further charge of indecent assault. It was alleged by the State that after the complainant, a 16 year old girl, had been threatened at knife point, the four applicants took turns in raping her and that the first applicant had also forced his penis into both the complainant s mouth and anus. Although the applicants pleaded not guilty, on 1 October 2001 the magistrate convicted them as charged. As the magistrate was correctly of the view that the rape had been an offence as envisaged in part 1 of Schedule 2 to the Criminal

2 2 Law Amendment Act No. 105 of 1997 ( the Act ) in that it was committed in circumstances where the victim was raped more than once and by more than one person acting in the execution of a common purpose, he acted in terms s. 52(1) of the Act by stopping the proceedings and committing the applicants for sentence by the High Court. In due course, the matter came to be heard in this Court by Jones, J who imposed sentences of life imprisonment on the four applicants in respect of the rape and a further sentence of 5 years imprisonment upon the first applicant in respect of his conviction on the charge of indecent assault. On 22 April 2002, the applicants gave written notice of application for leave to appeal in which they sought to attack both their convictions as well as the sentences imposed upon them. As Jones, J is currently acting in the Supreme Court of Appeal and therefore unavailable, the application for leave to appeal came before me. Having heard the parties, I granted the applicants leave to appeal to the Full Bench of this division against the sentences imposed upon them and, insofar as it may be necessary, against their convictions as well, indicating that my reasons for this order would follow in due course. These are those reasons. When the matter was called before me, the parties were ad idem that there were sufficient prospects of success in respect of both the convictions and the sentences to justify the grant of leave to appeal. Of course, had the applicants

3 3 been convicted and sentenced in the regional court they would have enjoyed an automatic right to appeal to the High Court, but the matter is anomalous in that they were convicted in a court from which they have an automatic right of appeal but sentenced in another court from which they would ordinarily require leave to appeal and, although the parties were agreed that s. 20(4) of the Supreme Court Act No. 59 of 1959 obliged the applicants to obtain leave to appeal against their sentences, the question they raised, and to which I now turn, was whether my leave is in fact required in respect of their convictions. In considering this point, it is necessary at the outset to have regard to the legislative framework under which the matter came before Jones, J for purposes of sentence. In terms of s.52 (1) of the Act, if a regional court, following on either a plea of guilty or a plea of not guilty, has convicted an accused of an offence referred to in either (i) Part 1 of Schedule 2 or (ii) Parts 2, 3 or 4 of Schedule 2 and the court in this latter event is of the opinion that the offence concerned merits punishment in excess of its jurisdiction under s. 51 (2), it is obliged to stop the proceedings and commit the accused for sentence as contemplated in s. 51 by a High Court having jurisdiction. Where the accused is committed for sentence by a High Court under this section pursuant to a conviction following a plea of guilty, the procedure laid down in s. 52 (2) of the Act must be followed in which case the record of the proceedings in the regional court shall be received by the High Court and form part of its record, and the plea of guilty and any admissions by the accused shall stand

4 4 unless the accused satisfies the court that such plea or admission was incorrectly recorded. It is a further requirement of s. 52(2)(b) that the High Court, unless satisfied that the plea of guilty by the accused was incorrectly recorded or unless not satisfied that the accused is guilty of the offence of which he or she was convicted and committed for sentence, is to make a formal finding of guilty and sentence the accused under the provisions of s. 51. Conversely, if the High Court is satisfied that a plea of guilty was incorrectly recorded or is not satisfied that the accused is guilty of the offence of which he or she was convicted and committed for sentence or that the accused has no valid defence to the charge, it is then obliged to enter a plea of not guilty and proceed with the trial as a summary trial. A somewhat different procedure is required where an accused is convicted in the regional court following on a plea of not guilty. In that case, s. 52(3) is applicable. It provides: (3)(a) Where an accused is committed under subsection (1)(b) for sentence by a High Court, the record of the proceedings in the regional court shall upon proof thereof in the High Court be received by the High Court and form part of the record of that Court. (b) The High Court shall, after considering the record of the proceedings in the regional court, sentence the accused as contemplated in section 51(1) or (2), as the case may be, and the judgment of the regional court shall stand for this purpose and be sufficient for the High Court to pass such sentence: Provided that if the judge is of the opinion that the proceedings are not in accordance with justice or that doubt exists whether the proceedings are in accordance with justice, he or she shall, without sentencing the accused, obtain from the regional magistrate who presided at the trial a statement setting forth his or her reasons for convicting the accused. (c) If a judge acts under the proviso to paragraph (b), he or she shall inform the accused accordingly and postpone the case for judgment, and, if the accused is in custody, the judge may make such order with regard to the detention or release of the accused as he or she may deem fit. (d) The Court in question may at any sitting thereof hear any evidence and for that purpose summon any person to appear to give evidence or to produce any document or

5 5 other article. (e) Such Court, whether or not it has heard evidence and after it has obtained and considered a statement referred to in paragraph (b), may (i) confirm the conviction and thereupon impose a sentence as contemplated in section 51(1) or (2), as the case may be; (ii) alter the conviction to a conviction of another offence referred to in Schedule 2 and thereupon impose a sentence as contemplated in section 51(1) or (2), as the case may be; (iii) alter the conviction to a conviction of an offence other than an offence referred to in Schedule 2 and thereupon impose the sentence the Court may deem fit; (iv) set aside the conviction; (v) remit the case to the regional court with instruction to deal with any matter in such manner as the High Court may deem fit; or (vi) make any such order in regard to any matter or thing connected with such person or the proceedings in regard to such person as the High Court deems likely to promote the ends of justice. The provisions of the Act, s.52 thereof in particular, have been the subject of trenchant criticism see for e.g. S v Swartz & Another 1999 (2) SACR 380 (C) at 383 b d and S v Olkers 2002 (1) SACR 179 (C) at 182 g in which latter case (at 183) Griesel J highlighted certain of the conundrums arising therefrom, including the question presently facing me, as follows: Normaalweg geniet elke beskuldigde wat in n laerhof skuldig bevind word n outomatiese reg van appèl na die relevante Afdeling van die Hooggeregshof teen daardie skuldigbevinding. Wat word nou van daardie reg indien die skuldigbevinding deur die Regter bekragtig word en die beskuldigde daarna gevonnis word? Is dit dan steeds n skuldigbevinding in n laer hof, waarteen n beskuldigde n outomatiese reg van appèl het na (minstens) twee Regters van die Hooggeregshof ingevolge art 309 van die Strafproseswet? Of moet die beskuldigde ingevolge art 316 aansoek doen om verlof om te appelleer na die Hoogste Hof van Appèl of na n volle Hof van die betrokke Provinsiale Afdeling? En wat van vonnis? Die vonnis word ongetwyfeld deur die Hooggeregshof opgelê. n Appèl teen sodanige vonnis word derhalwe gereguleer deur die bepalings van art 316(1), met die gevolg dat dit deur n appèlhof van minstens drie Regters verhoor moet word (mits die nodige verlof natuurlik verkry word). Gestel beide die skuldigbevinding en vonnis word op appèl aangeveg en die aangeleentheid word deur die Hoogste Hof van Appèl bereg. Dit bring dan mee dat daar, wat skuldigbevinding aanbetref, n appèl direk vanaf die streekhof na die Hoogste Hof van Appèl kan wees. Normaalweg, in ons hiërargie van howe en streng prosedure in verband met appèlle en hersienings, word n skuldigbevinding in n laer hof slegs tersyde gestel deur n hoër Hof, bestaande uit minstens twee Regters. Hierdie vereiste geld, selfs in die

6 6 geval van die eenvoudigste outomatiese hersiening. Ingevolge die bepalings van art 52(3)(e)(iv) van die Wet het n enkel Regter egter die bevoegdheid om n streekhof se beslissing tersyde te stel indien hy of sy twyfel of die verrigtinge ooreenkomstig die reg is. Dit kan mero motu geskied, sonder dat die beskuldigde eers appèl hoef aan te teken of die Regter te oortuig dat die streeklanddros verkeerd was. Waar dit gaan om die feite of geloofwaardigheidsbevindings van n verhoorhof, sal n Hof op appèl slegs daarmee inmeng indien die Hof (bestaande uit minstens twee Regters) tevrede is dat die verhoorhof fouteer het; n redelike twyfel is nie genoegsaam nie. Vir doeleindes van art 52(3)(b) van die Wet is dit egter genoegsaam indien die (enkele) Regter slegs maar twyfel of die verrigtinge ooreenkomstig die reg is. Dit het dan tot gevolg dat die bevoegdheid ingevolge art 52(4)(e)(iv) ontstaan. Dat hierdie toedrag van sake groot regsonsekerheid in die hand kan werk, spreek vanself. Hierdie sowel as ander onbevredigende aspekte rondom die spesifieke wetgewing wat reeds deur ander howe uitgelig is, verdien volgens my respekvolle mening dringende aandag van die Wetgewer. It is unfortunately necessary to record that despite more than a year having passed since these remarks were made, the legislature has done nothing to cure these difficulties. Be that as it may, when the matter came before him on 9 April 2002, my learned colleague Jones, J said the following: Die streekhof het die beskuldigde aan verkragting skuldig bevind nadat hulle onskuldig gepleit het. Daarna, en ingevolge die bepalings van artikel 52(1) en (3) van die betrokke Wet wat minimum vonnisse vir sekere ernstige misdrywe voorskryf, het die streeklanddros die saak na hierdie hof vir vonnis verwys. Die prosedure soos neergelê in Art. 52(1) en (3) is van toepassing. Ingevolge Art. 52(3)(a) word die oorkonde van die verrigtinge in die streekhof by bewys daarvan by hierdie hof ontvang en maak dit deel uit van die oorkonde van hierdie hof. Die oorkonde is wel behoorlik bewys. Ek het dit gelees en die inhoud daarvan oorweeg. Dit sluit in die streeklanddros se volledige redes vir sy skuldigbevinding. Soos ek reeds gesê het, daar bestaan by my geen twyfel dat die verrigtinge ooreenkomstig die reg is nie. Die skuldigbevinding moet derhalwe bekragtig word ooreenkomstig artikel 52(3)(e)(i) en vir vonnisdoeleindes bly die uitspraak van die streeklanddros staan en is voldoende vir hierdie hof om n vonnis op te lê. It is apparent from this that my learned brother felt that it was necessary for him to confirm the conviction of the appellants under s.52(3)(e)(i) before continuing to sentence them. In my respectful opinion, my learned brother misconstrued the

7 7 legislation and erred in reaching this conclusion. On my reading of s.52(3) the High Court, after considering the record of the proceedings in the regional court, is to sentence the accused and the judgment of the regional court stands for that purpose and is sufficient for the High Court to pass such sentence see: s.52(3)(b). It is only when the proviso to that sub section becomes operative i.e. when the judge is of the opinion that the proceedings are not in accordance with justice or that such doubt exists whether they are in accordance with justice, that the judge becomes obliged to obtain a statement from the regional magistrate setting forth his or her reasons for convicting the accused at which stage the provisions of s.52(3)(c) and (e) then come into play. In the event of a statement from the magistrate being called for under the proviso to sub section (b), the judge is then obliged under subsection (c) to inform the accused accordingly and to postpone the case for judgment, possibly after hearing evidence under sub section (d). It is only after the statement from the magistrate under the proviso to sub section (b) has become available that the judge may confirm the conviction under sub section (e)(i). Accordingly, the procedures in s.52(3)(c) and (e) of the Act are only of application where the High Court, on having scrutinised the record in the regional court made available to it in terms of s. 52(3)(a), has reason to doubt whether the proceedings in the regional court are in accordance with justice and the evidence sufficient to sustain a conviction cf. S v M 2000 (1) SACR 484 (W) at 502. This also appears to have been the opinion of both Griesel J in the Olkers case,

8 8 supra at 182 d e. and a Full Bench of the Cape Provisional Division in S v Swartz & Another 2002 (2) SACR 1(C) at [8], [11] and [14]. On the other hand, the procedures under s.52(3)(c) and (e) of the Act, including the requirement that the conviction be confirmed after receipt of the magistrate s reasons, are not prescribed before sentence may be passed where the judge is satisfied that the proceedings in the lower Court were in accordance with justice. In the present case, it is apparent from the extract from the judgment quoted above that Jones, J was satisfied that the proceedings in the regional court had been in accordance with justice. He was therefore not called upon to act in terms of the proviso to s.52(3)(b) nor to confirm the conviction in terms of s.52(3) (e)(i), as he purported to do. In my view, on being satisfied that the proceedings were in accordance with justice, all he was obliged to do was to pass sentence upon the applicants. None of the counsel who appeared in the application before me appeared to have appreciated this. All three of them seemed to accept that if my learned brother had been satisfied that the proceedings in the regional court were in accordance with justice, he had been obliged to confirm the conviction. Indeed, their argument in support of their contention that leave was required from this Court in respect of both the applicants convictions and sentences was based four square upon the contention that some effect had to be given to the regional

9 9 court s conviction having been confirmed by a judge of the High Court.. However, it seems to me, as was held both in the Full Bench decision in the Swartz case, supra at [27] and in the Olkers case, supra at 182 d, that on a proper interpretation of s.52(2) the judgment of the regional court will stand and be sufficient for the High Court to sentence the appellants should it be of the view that the proceedings in the regional court were in accordance with justice. That was the case in the present matter, and I do not see how the applicants convictions in the regional court can be equated with convictions in the High Court which did not convict them but merely had regard to the convictions in the regional court in order to impose sentence. That being so, it is my view that the applicants did not need the leave of this Court to appeal against their convictions in the regional court, against which they enjoy an unfettered right of appeal. On the other hand, as the High Court as exercised original sentencing jurisdiction in imposing sentence see: S v Dzukuda & Others; S v Tshilo 2000 (2) SACR (CC) at 458 para [18] leave of this Court is required in respect of their sentences. That this conclusion may result in practical difficulties and anomalies is clear. But that is the fault not of this Court but of the legislature which, hopefully, will remedy the deficiencies in the legislation in the not too distant future.

10 10 Be that as it may, as the parties were agreed that there were reasonable prospect of success on appeal, I granted leave to appeal in respect of sentence. Moreover, although I was of the view that leave to appeal was not required in respect of the applicants convictions, in order to cover the contingency that I had erred in this regard, I granted leave to them to appeal against their convictions in so far as such leave was necessary. I appreciate that, theoretically, as the appellants enjoy an automatic right of appeal against the magistrate s judgment, their appeal against their convictions could be heard by two judges while the appeal against their sentences has to be heard by a Full Bench of three judges. As there is no requirement that an appeal from a lower court has necessarily to be heard by only two judges, I take the liberty of drawing the Registrar s attention to the fact that these practical difficulties may be overcome by the appeal against both convictions and sentences being set down before a Full Bench. L.E. LEACH JUDGE OF THE HIGH COURT

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