---

REPORTABLE

IN THE SOUTH GAUTENG HIGH COURT

(JOHANNESBURG)

CASE NO: A480/2011

DATE:30/04/2012

In the matter between

SIBUSISO BLESSING NHLAPO ….......................................................APPELLANT

and

THE STATE …............................................................................................RESPONDENT

J U D G M E N T

___________________________________________________________________

MUDAU AJ:

1. The appellant and another were, charged in the Germiston regional court with one count of robbery with aggravating circumstances as intended in section I of Act 51 of 1977 read with section 51 (2) and other relevant provisions of the Criminal Law Amendment Act 105 of 1997.The state alleged that firearms were used during the course of the robbery. It is to this charge that the appellant tendered a plea of guilty. Pursuant to a guilty plea, the appellant was convicted and sentenced to twelve (12) years’ imprisonment. In terms of section 103 (1) of the Firearms Control Act 60 of 2000 the appellant was declared unfit to possess a firearm.

2. In amplification of his plea, the appellant adduced a statement in terms of section 112 (2) of the Criminal Procedure Act 51 of 1977, which read:

“1. I am the accused herein.

2. I have been advised of my constitutional rights to remain silent but notwithstanding this right, still elect to make this statement.

3. I understand the charge against me and I plead guilty to the said charge.

4. I plead out of my own volition, and was in no way unduly influenced to do so.

5.I admit that on/or about 4 September 2010, and at or near Tokoza, which place in the regional division of Gauteng (sic), I unlawfully, and intentionally assaulted Johanna Motholo, hereinafter referred to as the complainant, and there, and then, and with force took the items referred in the charge sheet from the complainant.

6. I admit that the items referred to in the charge were the property of or was in the lawful possession of the complainant.

7. On the day in question, I was in the company of my two friends being Jarvis and Jakals. I must confirm that my co-accused Sabelo Gift Dinze is not Jarvis or Jakals. We went to the house at 6773 Maletsane StreetTokoza; this is a shop where groceries were sold. We entered the shop, and I approached the complainant, and bought some loose cigarettes from her. Whilst I was busy paying her, my friends entered the store, and approached the complainant. As she was handing the cigarettes to me, Jarvis grabbed her arm in an attempt to control her. She however shook his grip, and got free from his hold. He then took out a .303 rifle, and pointed it at her. Simultaneously, Jakals took out a toy gun, and pointed it at the complainant. The complainant got scared, and took the cash box and placed it on the counter. I then opened it, and removed the cash from it. The cash was R3000.00.We then left, and shared the money.

8. I admit that that at all material times, I knew, and understood that my actions aforesaid were wrongful, and intentional, and punishable by a Court of law.”

3. It is against the effective sentence of 12 years’ imprisonment that the appellant directed his appeal to this court. He is aggrieved by what he considers to be an excessive sentence. The appeal is before us with leave of the trial court.

4. Appellant was convicted of an offence in respect of which the mandatory minimum sentence is fifteen years imprisonment. In terms of s 51(2) of the Criminal Law Amendment Act 105 of Act 1997, the minimum prescribed period for sentences in respect of offences falling under the ambit of Part II of Schedule 2 is as follows: '(2) Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person who has been convicted of an offence referred to in – (a) Part II of Schedule 2, in the case of - (i)a first offender, to imprisonment for a period not less than 15 years…”It is only when the court establishes the presence of substantial and compelling circumstances that the court would be at liberty to impose a lesser sentence.

5. It is settled law that the infliction of punishment is pre-eminently a matter for the discretion of the trial court (per Centlivres JA in R v Ramanka 1949 (1) SA 17 (A) 420).The court of appeal does not have an unfettered discretion to interfere with the sentence imposed by the trial court (S v Anderson 1964 (3) SA 494 (A) 495; S v Whitehead 1970 (4) SA 424 (A) 435; S v Giannoulis 1975 (4) SA 867 (A) 868; S v M 1976 (3) SA 644 (A) 648 et seq; S v Pillay 1977 (4) SA 531 (A); S v Rabie 1975 (4) SA 855 (A)).Only where it is clear that the discretion of the trial court was not exercised judicially or reasonably will the court of appeal be entitled to interfere.

6. It is necessary to consider the material and relevant aspects associated with sentencing that were placed before the trial court. The trial court relied on a pre-sentence report for purposes of sentencing. From the said report, appellant was born on the 16^th of June 1985. the J15 refers to his age as 23 years at the time of his arrest, which the learned magistrate relied on. This was an obvious error, because a year later when the report was compiled, he was 26 years old. This therefore means appellant was about 25 years of age at the time the crime was committed. Appellant had a difficult upbringing having been brought up by a single parent. The trial court considered that appellant was a grade 10 drop-out. Although not married, appellant fathered a child who is in the care and custody of a former girlfriend. Appellant had been in custody for about a year at the time of sentencing. He was also unemployed. The state did not prove any records of previous convictions. The appellant however, admitted to attempted rape as a previous conviction in respect of which five (5) years’ imprisonment had been imposed, but suspended with conditions.

7. In appellant’s favour, the trial court took into consideration his guilty plea and personal circumstances referred to above at Para 5 in finding the presence of “substantial and compelling circumstances”. The trial court proceeded to impose the sentence of 12 years imprisonment aggrieved of by the appellant.

8. Something is worthy of mentioning which, is not apparent from the appellant’s 112 (2) statement, but is referred to in the probation officer’s report admitted into the record by consent of the parties. The said report is marked as exhibit “C”, and as reported to the probation officer:” the accused explained that he forgot the date of the incident when his two friends came to his house. He explained that he asked them what was their plan and they said they were going to rob at the spaza shop. The accused explained that he was carrying a toy gun that he took from his cousin’s child who passed away. According to the accused one of his friends was carrying a gun .The accused and his friends arrived at the spaza shop and the accused bought two cigarettes with R5-00.When the complainant give him cigarettes the accused grabbed the complaint’s hand and demanded the cash. According to the accused the complainant did not take them serious but he was threatened when the accused‘s friend pointed him with a gun. The complainant took the bag of money and gave it to the accused and his friends…after four days he got arrested because the complainant’s younger brother recognised him and show the police where he stays.”

9. In sentencing the appellant, the trial magistrate found that he did not play a major role. Yet, the court found that:” this was pre –planned by the accused and his friends when they met at the accused’s place of residence.” The finding that appellant did not play a major role is further from the truth and in my view, a misdirection. Not only was the appellant involved in the plan to rob the shop as the learned magistrate correctly found, but, appellant was the one who by his own admission, took the money after the victim was threatened.

10. Robbery with aggravating circumstances involving the use of a firearm is not only a serious offence, but such incidents are unacceptably, highly prevalent. Such attacks are usually aimed at the rich and the poor alike with impunity. The circumstances of this matter call for a prison term as the trial court correctly found. In my view, the appellant was fortunate that the court below was able to make a finding that there are substantial and compelling circumstances that justify the imposition of the sentence that was imposed, which sentence is the subject of this appeal.

11. It therefore follows and it is my view, that the appeal has no merit.

12. In the result I propose the following order:

1. The appeal against sentence is dismissed.

___________________________________

MUDAU AJ

SPILG J:

13. I agree that the appeal should be dismissed for the reasons set out in the judgment of my brother Mudau AJ.

14. There is a disconcerting feature in this case which ought to be addressed. It concerns the extent of the prosecutor’s duty (and by extension that of the investigating officer) to establish whether an offender has a previous conviction. In a number of cases the prosecutor no longer affirms that the SAP 69 reflects the absence of previous convictions. Instead the prosecutor informs the court, as in this case, that the docket does not contain an SAP 69 and that the State does not intend proving any previous convictions. An SAP 69 is a record extracted from the South African Police’s Criminal Record System. It details the offender’s previous convictions including the nature of the offence, the date of conviction and the sentence imposed. After conviction the State ordinarily produces this document in court and in compliance with section 271(2) of the Criminal Procedure Act 51 of 1977 (the “CPA”) the offender is required by the Court to admit or deny its contents. The offender will usually sign the SAP69 if the previous convictions are admitted and the Presiding Officer will be requested to certify, by signing in the space provided on the document, that the previous convictions are admitted. The SAP69 will also state if there is no record of a previous conviction.

15. The practice mentioned earlier of not even obtaining an SAP69 before deciding not to prove any previous convictions , if indeed it is a practice, falls short of the obligations that are implicitly imposed on a prosecutor in fulfilling his or her duty to the Court in regard to sentencing. The duty of a prosecutor to place information before a Court that is relevant to the exercise of its discretion in respect of bail is well understood and is apposite because there a Court is obliged to exercise a discretion within the confines of the CPA and the public interest is also a relevant consideration.

16. Suffice it that a prosecutor’s duty embraces an obligation to protect the public interest and a duty to place before Court information relevant to the exercise of its functions within the limitations of the pressures under which prosecutors work. See Carmichele v Minister of Safety and Security and Another 2002(1) SACR 79 (CC) at paras 72 and 73 in respect of bail. See also S v Rozani; Rozani v Director of Public Prosecutions; Western Cape 2009(1) SACR 540 (C) per Thring J at 549h-550a; Du Toit et al Commentary on the Criminal Procedure Act 1-4T-6; Compare Kruger Hiemstra’s Criminal Procedure (2008) at 1-6/7 who submits that prosecutors are “... public officers who should assist the court in ascertaining the truth” .

17. There are a number of Full Bench decisions which held that the prosecution exercises a discretion whether to prove previous convictions. This was in the context of a direct request to the offender by the court for such information. See for instance S v Khambule 1991 (2) SACR 277 (W) at 283b-c which was explained in S v Maputle 2002(1) SACR 550 (W) at 555e on the basis that a Magistrate has no power to question an accused regarding whether he had previous convictions in the absence of the prosecution providing an SAP69. In Khambule the Magistrate assumed the roll of the prosecution, and asked the accused directly if he had previous convictions. This was after the prosecutor had indicated that the SAP69 was still outstanding and that the State wished the case to be finalised (at 282g-l). See also S v Delport 1995(2) SACR 496(C) (and the observation by Terblanche in Guide to Sentencing in South Africa (2^nd) at p80 para 3.3.1 ftn 13) and generally the cases cited by Terblanche in para 3.3.1 at ftn 12 which span a period from 1977 to 2002. While some of the later cases effectively followed the precedent set, the earlier cases expressed concern about a Magistrate directly questioning an accused where the State had not produced an SAP69. Those cases confined the enquiry by reference to an interpretation of the provisions of section 271(1) of the CPA and a fortiori assumed that the prosecutor had at least considered the contents o the SAP69 before electing not to prove it Section 271(1) reads ;

“The prosecution may, after an accused has been convicted but before sentence has been imposed upon him, produce to the court for admission or denial by the accused a record of previous convictions alleged against the accused.” (emphasis added)

18. In my respectful view these cases appear to have been influenced by concerns regarding the prejudicial nature of a court undertaking an enquiry mero motu with the risk of consequent perceptions of bias and partisanship. Concern was also expressed about the fallibility of the offender’s own recollection. Moreover the earlier cases were decided at a time when the presiding officer generally exercised a discretion regarding sentencing unfettered by statutorily imposed considerations regarding previous convictions. Since these cases had regard to the provisions of section 271(1) of the CPA in the limited context of a Magistrate assuming the roll of inquisitor, the courts were not called on to consider whether the prosecutor had nonetheless a duty to provide details of previous convictions bearing in mind that the over-riding considerations regarding sentencing are to be informed by section 274 of the Act. This was touched upon in S v Sethokgoe 1990(2) SACR 544 (T) where the court considered that it was undesirable not to prove previous convictions but weighed it against the possible work and logistical constraints imposed on prosecutors particularly in outlying areas. See also S v Pietersen 1994(2) SACR 434 (C).

19. Section 274(1) of the CPA provides that “a court may… receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed” (emphasis added).

20. It is trite that the imposition of a proper sentence requires a consideration of the triad of factors, one of which is the public interest. Accordingly irrespective of whether the offence is one subject to the minimum sentence regime under section 51 of the Criminal Law Amendment Act 105 of 1997 (“CLAA”) or not, public interest cannot be properly considered and weighted unless a court is apprised of whether the offender has previous convictions, and if so, for what.

21. In my respectful view the distinguishing features in the earlier cases are the specific concern the courts wished to address, and hence the confinement of the enquiry to section 271 of the CPA in the earlier decisions without reference to section 274 of the Act, and also the logistical difficulties that may have arisen, particularly in outlying Magisterial areas, in obtaining an SAP69 timeously. It is also necessary to take into account the provisions of section 51 of the CLAA and the landscape as defined by more recent authority of the SCA regarding the general duties of a court when considering sentencing and its concern that the interests of society must be properly taken into account. See for instance S v Swart 2004(2) SACR 370 (SCA) paras 12 and 13 and S v Abrahams 2002(1) SACR 116 (SCA) at paras 24-26 and Director of Public Prosecutions, KwaZulu- Natal v Ngcobo and Others 2009 (2) SACR 361 (SCA) para 22 which includes the following statement: “Surely , the nature of the offence related to the personality of the offender, the justifiable expectations of the community and the effect of a sentence on both the offender and society are all part of the equation? Pre and post- Malgas the essential question is whether the sentence imposed is in all the circumstances, just.”

22. The significance of the question whether the court interferes with the apparent discretion afforded to the prosecutor when calling for an SAP69 or whether the prosecutor is impermissibly tying a court’s hands by not providing it are more clearly exposed where the legislature has specifically directed that, absent sufficient and compelling reasons, previous convictions must have a material impact on either the nature of sentence that can be imposed or the minimum period of a custodial sentence. By way of illustration;

1. A first offender may be eligible for correctional supervision under section 276(1)(h) of the CPA whereas a second or multiple offender who falls within the ambit of section 51(1) or (2) read with section 52 of the CLAA will not be so eligible by reason of section 276(3)(b) of the CPA;

2. A first offender convicted of robbery with aggravating circumstances faces a minimum custodial sentence of 15 years, whereas the minimum if the offender has been convicted previously for the same offence is 20 years and 25 years if there is more than one previous conviction (see Part II of Schedule 2 of the CLAA read with section 51(2)(b) of the CPA;

3. In the case of rape there is a material deviation in minimum sentence between a first offender who does not otherwise fall within the provisions of Part I of Schedule 2, where the minimum sentence is 10 years, and a person who falls within its provisions by reason of two or more convictions for rape where the prescribed sentence is life imprisonment. See Part III and Part I of Schedule 2 read with section 51(1) and (2) (b) of the CLAA. See also the minimum sentence for a second and third or subsequent offender under section 51(2) (b) which is 15 and 20 years respectively.

23. Accordingly the permissive nature of section 271 of the CPA must now yield to ensure that the peremptory provisions of section 51 of the CLAA, which is the more recent enactment, are implemented as intended; ‘lex posterior prior derogat’ . See New Modderfontein Gold Mining Co v Transvaal Provincial Administration 1919 AD 365 at 397. Insofar as non-section 51 offences are, the discretion accorded to the prosecution to elect whether previous convictions will be relied upon appears to have been informed by the logistical and technological limitations of the times (compare Sethokgoe at 545i-546g).

24. While it is accepted that at the sentencing stage the State’s duty is even more consonant with a non-adversarial stance, it remains the only party to the trial able to procure the information necessary to enable the Court to discharge its sentencing responsibilities under section 274(1) of the CPA. A Court would be remiss in complying with the legislative injunctions of section 51 of the CLAA read with Schedule 2 if it failed to take into account for sentencing purposes; a fact the section obliges it to. The prosecutor would be remiss in not presenting the Court with the facts which the section requires to be considered in determining the sentence to be imposed. See generally S v Siebert 1998(1) SACR 554 (SCA) at 558j

25. Mr Mathabatha on behalf of the State confirmed that no difficulty should be experienced by the prosecution in obtaining an SAP69 promptly on request off the South African Police Record System. The SAP69 should already be contained in the docket if bail was previously sought.

26. Accordingly the issue no longer presents itself as one where the prosecutor appears entitled to exercise a discretion which may or may not impermissibly tie the court’s hands. Nor does the issue of unnecessary delay arise since an SAP69, or at the very least the underlying data on the South African Police’s Record System of an offender’s previous convictions, ought to be readily available to a prosecutor even if there was an initial oversight in calling for the record in good time. See the competing concerns raised by Preiss J in Sethokgoe at 545i-546g at a time prior to the general utilisation of computers and the ability of authorised personnel in remote areas to instantly access or obtain and download the relevant data. Any current exception ought not to make the rule.

27. Accordingly in order for a court to discharge its adjudicative responsibilities when considering sentence, including those imposed by statute, it is necessary for the court to have placed before it details of previous convictions. To accord the prosecutor a discretion which is not subject to judicial oversight may result in like offenders being treated differently, even if the prosecutor had obtained the SAP69 beforehand. It appears that the permissive nature of section 271(1) must yield both to the legislative intent of section 51 of the CLAA and the inherent danger of conferring an arbitrary and potentially discriminatory power on the prosecution.

28. A failure to properly establish and inform the presiding officer of previous convictions imposed on the offender adversely affects the proper administration of justice and undermines the court’s responsibilities where the minimum sentencing regime applies under the Criminal Law Amendment Act. At best it ought to be countenanced only in exceptional circumstances that are properly explained to the court. Ordinarily there is no apparent reason why the SAP69 should not have been requested by and provided to a prosecutor before sentencing and in good time to enable the accused to consider it

29. In the present case, after conviction the State informed the Learned Magistrate that it was still awaiting receipt of an SAP 69 and the case was remanded on 29 June 2011 for a probation officer’s report.

30. On 13 September 2011 the court dealt with sentencing. The Learned Magistrate pertinently asked the prosecutor at the outset whether an SAP69 had been handed in. The prosecutor advised that “there is also no SAP69s in the docket.” The Magistrate responded “I take it that the State is not proving any previous convictions” and this was affirmed. It was also evident from their exchanges that the Probation Officer’s report was then handed in by agreement.

31. The Probation Officer recorded in her report of 6 September 2011 that the appellant stated that he had previously been convicted in “Germiston Magistrates’ Court 3” during 2008 for attempted rape and received a 5 year suspended sentence.

32. Despite such specific detail, the prosecutor did not advise the Learned Magistrate why he was unable to obtain it during the remand period or that there might be a need to obtain a short remand to procure an SAP69 and afford the Appellant an opportunity to consider it. Whatever the prosecutor’s reason for not securing an SAP 69 it appears necessary, not only where section 51 of the CLAA is invoked but also to ensure generally that the interests of society are properly taken into account, for the State to produce an SAP69 in Court and that a Presiding Officer insists on its production in order to properly discharge the sentencing functions under law (see further Sethokgoe at 545i-546b), unless good reason exists to avoid a further remand where the offender is to remain in custody.

33. The court requests that its concerns regarding the consequences of a failure to produce an SAP69 in relation to the court’s sentencing responsibilities both generally and under section 51 of the CLAA be brought to the attention of the Director of Public Prosecutions.

_________________________

SPILG J

______________________________________________________

COUNSEL FOR THE APPELLANT: ADV J HENZEN -DU-TOIT

COUNSEL FOR THE RESPONDENT: ADV N MATHABATHA

DATE OF HEARING: 30 APRIL 2012

DATE OF JUDGMENT: 30 APRIL 2012

---