South Africa: Free State High Court, Bloemfontein

IN THE HIGH COURT OF SOUTH AFRICA

(ORANGE FREE STATE PROVINCIAL DIVISION)

APPEAL NO. 27/2003

In the appeal between:

MATTHEWS MORALE Appellant

and

THE STATE Respondent

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CORAM: VAN DER MERWE J et VAN ZYL, AJ

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HEARD ON: 7 FEBRUARY 2005

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JUDGMENT BY: VAN ZYL, AJ

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DELIVERED ON: 17 FEBRUARY 2005

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[1] The appellant was charged in the Regional Court, Sasolburg, with two counts of housebreaking with the intent to steal and theft. With regard to the first defence, it was alleged that on or about 15 to 17 February 2003, the appellant unlawfully and with the intent to steal, broke open and entered the building of JJV Engineering at Sasolburg, and that he stole one overall and one pair of shoes to the total value of R600.00. With regard to the second offence, it was alleged that the appellant unlawfully and with the intent to steal, broke open and entered the same premises on or about 21 February 2003, and then stole shoes to the value of R300.00 and clothes to the value of R350.00.

[2] The appellant enjoyed legal representation in the Court a quo and pleaded guilty to both charges. A written statement in terms of Section 112(2) of the Criminal Procedure Act, 51 of 1977, duly signed by the appellant, was submitted to the Court a quo as exhibit A, in which statement the appellant freely and voluntarily admitted all the elements of the respective charges against him. The appellant was subsequently convicted on both charges and then sentenced in terms of Section 286 of the Criminal Procedure Act, in that he was declared an habitual criminal. The appellant was furthermore declared unfit to possess a firearm.

[3] The appeal is directed against both the conviction and the sentence.

[4] The appellant also lodged an application for condonation for the late filing of the appeal. It is evident from the record that the appellant was sentenced on 22 April 2003, where after he filed his appeal on 20 May 2003. In terms of Magistrate’s Court rule 67, the appellant should have filed his appeal within fifteen (15) days from the date on which the sentence was imposed. The present appeal was therefore filed 3 days out of time. The appellant duly filed an affidavit in support of his application for condonation in which he set out a reasonable explanation for the said delay. Considering the short period of delay, the reasonable explanation for the delay and the appellant’s good chances of success with the appeal, I am satisfied that the appellant met the requirements for an application for condonation and the requested condonation is therefore granted.

[5] Although the appeal is also directed against the conviction of the appellant, Mr Pretorius, who appeared on behalf of the appellant in the appeal hearing, conceded that he can make no valid submissions in support of the said appeal. This concession was, in my view, correctly made. It is evident from the statement made by the appellant in terms of Section 112(2) of the Criminal Procedure Act, that the appellant did admit all the elements of the respective offences. I am therefore satisfied that the appellant made the necessary admissions for a proper conviction on the two charges of housebreaking with the intent to steal and theft. The appeal against the conviction can therefore not succeed.

[6] When considering the appeal against the imposed sentence, I am mindful of the fact that a Court of appeal has only a restricted and limited right to interfere with the sentence imposed by the Court a quo. In this regard Rumpff JA stated as follows in S v ANDERSON 1964 (3) SA 494 (A) at 495 G - H:

“The decisions clearly indicate that a Court of appeal will not alter a determination arrived at by the exercise of a discretionary power merely because it would have exercised that discretion differently. There must be more than that. The Court of appeal, after careful consideration of all the relevant circumstances as to the nature of the offence committed and the person of the accused, will determine what it thinks the proper sentence ought to be, and if the difference between that sentence and the sentence actually imposed is so great that the inference can be made that the trial court acted unreasonably, and therefore improperly, the Court of appeal will alter the sentence.”

[7] In terms of Section 286 of the Criminal Procedure Act, a convicted person may be declared an habitual criminal by a Court “if it is satisfied that the said person habitually commits offences and that the community should be protected against him.” The word “satisfied” has been interpreted as to mean that the Court has to be convinced of these facts. (See S v MAKOULA 1978 (4) SA 763 (SWA)).

[8] A rule of practice developed in our law according to which an offender should be warned that he may be declared an habitual criminal if he offends again. However, the warning is not an absolute requirement and an offender may be declared to be an habitual criminal even if no warning has been given. However, a Court will in such an instance be even more careful than usual before imposing this sentence. Nienaber J set out these principles as follows in S v SHABALALA 1984 (2) SA 234 (NPA) at 237 A - C:

“Wat vermoedelik daarmee bedoel word, is dat ‘n verhoorhof ‘n beskuldigde meer geredelik tot gewoontemisdadiger sal verklaar as die waarskuwing wel gegee is, as wanneer die waarskuwing ontbreek; maar dat die vonnis, by ontstentenis van so ‘n waarskuwing, nie sonder meer op appèl ongedaan gemaak sal word nie.

Die afwesigheid van ‘n waarskuwing kan tog negatiewe werking hê, al is dit dan ook op ‘n ander vlak: of die waarskuwing gegee is, al dan nie, bly ‘n relevante faktor wat die verhoorhof in ag moet neem wanneer hy sy diskresie of die beskuldigde tot gewoontemisdadiger verklaar moet word of nie, moet uitoefen. Dit blyk uit die pertinente opmerkings van die Appèlhof in R v EDWARDS 1953 (3) SA 168 (A) waar daar, te 170A, verklaar is: ‘The absence of these two factors’

(nl die gewraakte waarskuwing en ‘n ander faktor wat nie nou tersake is nie)

‘is material in considering whether the indeterminate sentence should have been imposed.’”

[9] It is furthermore so that the list of previous convictions of an accused is an important factor when considering the appropriateness of the said sentence. In this regard the Court has a duty to enquire into the circumstances under which the previous convictions were committed. In S v SHABALALA, supra, at 237 G - 238 A, it was stated that:

“Na my mening het die verhoorhof oorhaastig opgetree deur sonder verdere ondersoek tot die gevolgtrekking te kom dat die appellante, ‘uit gewoonte’ die gewraakte misdrywe gepleeg het. Veral is dit die geval by die tweede appellant wat slegs een reeks vorige veroordelinge het en wat vir ‘n tydperk van bykans agtien maande op vrye voet was alvorens hy die nuwe misdade gepleeg het wat tot sy huidige skuldigbevinding gelei het ... ‘n Ondersoek na die aard en omstandighede van daardie reeks misdrywe sou nie onvanpas gewees het alvorens die verhoorhof die appellante tot gewoontemisdadigers verklaar het nie. Nòg wat aard, nòg wat frekwensie betref vertoon die eerste appellant se vorige veroordelings die eweredige patroon wat op misdaad uit gewoonte dui.”

In fact, in S v MASISI 1996 (1) SACR 147 (0), Lombard J held that it is desirable to hold an investigation into the nature and circumstances of the previous convictions of an accused who had not previously been warned in advance of the provisions of Section 286 of the Criminal Procedure Act. The failure of the trial court under the circumstances to so examine the nature and circumstances of previous convictions of the accused who was not previously warned, amounted to an improper exercise of its discretion and the Court of appeal therefore interfered with the imposed sentence.

[10] It should also be noted that a further relevant consideration is that there should not be a long lapse of time between the present offence and the previous offences. This principle was stated in S v MAKOULA, supra, at 767 H - 768 A as follows:

“As die lang tydsverloop tussen die vroeëre en huidige diefstalle in ag geneem word, is daar ook geen regverdiging vir die streeklanddros se stelling dat appellant volhard het in die pleging van misdrywe tot so ‘n mate dat die diefstal van R15 se damesskoene hom ‘n gevaar vir die samelewing maak en die gemeenskap teen hom beskerm behoort te word deur die oplegging van die vonnis as gewoontemisdadiger nie.”

[11] In the present appeal it appears that the decision of the Court a quo to declare the appellant an habitual criminal was mainly based on the list of previous convictions of the appellant. It is therefore necessary to consider them in more detail:

Between the years 1982 and 1992, the appellant was convicted and sentenced as follows: