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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – PORT ELIZABETH)                

       CASE NO.: CA&R 06/2014

In the matter between:

PELISA LWAZIKAZI VELLEM                                                                                   Appellant

And

THE STATE                                                                                                            Respondent

JUDGMENT

BESHE, J:

[1] This is an appeal against the refusal by the Regional Magistrate, Port Elizabeth to admit the appellant to bail pending the outcome of a review application to the High Court of South Africa (Eastern Cape Division, Grahamstown).

[2] The appellant who was accused number two, pleaded guilty and was convicted of eight counts of fraud and nine counts of contravention for Section 58 (d) and read with read with Section5 (1) and Section 28 (1) and (2) of Act 89 of 1991 as amended (failure to furnish the Commissioner for the South African Revenue Service with VAT201 returns). She was sentenced in June 2009 to correctional supervision of three years. In addition thereto, she was given a suspended sentence. The said suspended sentence was brought into operation in June 2013. In January 2014 appellant gave notice that she intended applying to this court for an order Reviewing and setting aside the Regional Magistrate’s judgment in Case No. CCC 1/20/2009, that was handed down in the Specialised Commercial Crimes Court wherein the sentence that suspended in June 2009, was brought into operation. The notice of motion in respect of the review application also called upon the Regional Magistrate to despatch, to the Registrar of this court, the complete record of proceedings sought to be reviewed within fifteen (15) days after receipt of the notice of motion. Pending such review, the applicant applied that she be released on bail. The application for bail pending review was dismissed by the Regional Magistrate. It is that refusal she is appealing against.

[3] First respondent in the review application is the Regional Magistrate whose order is sought to be reviewed. The second respondent is the Director of Public Prosecutions, Eastern Cape. The first respondent’s judgment that is sought to be reviewed is impugned on the basis that the sentence that was purportedly put into operation by the first respondent on the 13 June 2013 was not the sentence that was imposed by him on the 26 June 2009. In that, the sentence purportedly imposed on the 26 June 2009 was merely “imprisonment of five (5)” without an indication whether it was 5 days, weeks, months or years.

[4] It is common cause that after the imposition of sentence on the 26 June 2009, the appellant was provided with a copy of the sentence. The sentence reflected in that copy is reproduced herein under:

“1. Accused is sentenced to correctional supervision of three (3) years in terms of section 276(1) (h) act 51/1977 under the following conditions:

1.1.1.      the accused be placed under house arrest for the full duration of their sentence with the following exceptions:

1.1.2.      times the accused is performing their work from 0600 to 17:00 on workdays

1.1.3.      times the accused perform community services as per paragraph 1.1.5 infra.

1.1.4.      times when accused is hospitalized by a registered medical practitioner.

1.1.5.      times when the accused attend church services as per arrangement with the correctional service officer.

1.2.         The accused is not allowed to leave her work address, home address or the magisterial district of Port Elizabeth without the prior written consent of the correctional service officer.

1.3.         the accused shall subject herself visits at irregular hours at her home and or work place by officers of Community Corrections.

1.4.         the accused shall withhold herself from the use of any liquor or drugs unless prescribed by a registered medical practitioner for the full duration of sentence.

1.5.         the accused shall perform free community services at the rate of 8 hours per week for the full duration of this sentence at the MTR SMITH KINDEROORD, Saturdays from 08:00 – 16:00 or as per other arrangement by the correctional service officer.

1.6.         the accused shall successfully complete all programmes prescribed by the correctional officer that may include but is not limited to

Ø  Cognitive programme,

Ø  Financial Management Programme,

Ø  Orientation Programme,

Ø  Any other programmes identified by the community corrections officer.

1.7.         the accused shall not commit any other offences whilst under correctional supervision.

1.8.         The Commissioner of Correctional Services may in terms of section 52 Act 111/1998 add any other condition which is essential for the execution of this sentence. The Commissioner may not however change the minimum conditions of this sentence of this court in any respect.

1.9.         The Commissioner is ordered to see that this sentence & the conditions thereto are complied with by the accused.

2. In addition the accused 2 is sentenced to an additional imprisonment of five (5), that is fully suspended for a period of five (5) under the following conditions:

2.1 that the accused is not convicted of a contravention of section 59(1)(a) of the Value Act 89/1991 or fraud, or any competent verdict thereto committed during the period of suspension.

2.2 That the accused repay an amount of R81 432.95 to the SA Revenue Services with effect from 1/8/2009 on or the first workday of every month at an amount of R2262.03 per month until the full amount have been paid off.

2.3 that the accused comply strictly and in full with all conditions as set out in paragraphs 1 – 1.8 supra.”

[5] According to the transcribed record of the sentencing proceedings (26 June 2009) which according to the appellant was not available at the time of the institution of the review application, first respondent, in so far as the suspended sentence is concerned stated the following:

“In addition accused no. 2 is sentenced to ADDITIONAL IMPRISONMENT OF FIVE (5) YEARS WHICH IS FULLY SUSPENDED FOR A PERIOD OF FIVE YEARS UNDER THE FOLLOWING CONDITION, THAT THE ACCUSED IS NOT CONVICTED OF A CONTRAVENTION OF SECTS.59(1)(A) OF THE VALUE ACT OR FRAUD OR ANY COMPETENT VERDICT THERETO COMMITTED DURING THE PERIOD OF SUSPENSION. THAT THE ACCUSED REPAY THE AMOUNT OF R81 432.95 TO THE SOUTH AFRICAN REVENUE SERVICE WITH EFFECT FROM THE FIRST DAY OF AUGUST ON OR ABOUT THE FIRST WORKDAY OF EVERY MONTH AT THE MINIMUM AMOUNT OF R2 262.03 PER MONTH UNTIL THE FULL AMOUNT HAVE BEEN PAID OFF. THAT THE ACCUSED COMPLY IN FULL OF THE CONVICTIONS AS SET OUT IN PARAGRAPH 1 TO 1.8 (SUPRA).”

It is clear as pointed out by the appellant that the sentence as it appears from the copy that was provided to the appellant and what the first respondent said when he imposed the sentence, differ. Appellant contends that she did not comprehend the full ambit of the terms of sentence that was pronounced by the first respondent. On being provided with a copy of the sentence her understanding was that the full conditions of the sentence were contained in the copy of the sentence she was furnished with. (See appellant’s affidavit in support of application for review)

[6] During the application for bail pending review, the appellant stated that when the sentence was pronounced by the magistrate and interpreted to her, she did not take proper notice of what was said regarding the additional sentence, adding that her attention was focused on the correctional supervision aspect of the sentence.

[7] In dismissing appellant’s application for bail pending review, first respondent (in the review application) stated that the review is “clearly a transparent and frivolous attempt to abuse court process”. Adding that “it is clear that the word “years” was erroneously omitted from the typed transcript”.

[8] Indeed had this been the case and had this been picked up immediately after sentencing the magistrate would have proceeded in terms of Section 298 of the Criminal Procedure Act 51 of 1977 which reads as follows:

“When by mistake a wrong sentence is passed, the court may, before of immediately after it is recorded, amend the sentence.”

As pointed out earlier the impugned sentence was imposed in June of 2009, and when for the first time the issue was raised in January of 2014, the magistrate had become finctus officio and could no longer act in terms of Section 298 referred to above. The alleged irregularity referred to above, that is discrepancy between verbatim and the written judgment is not the only one raised by the appellant. She contends that according to the sentence documents she was required to comply with all the conditions as set out in paragraph 1 to 8 thereof and this did not include paragraph 2.2 which relates to the repayment of the amount of R81 432.95 to the South African Revenue Service. In the written sentence, the conditions 1 to 8 are attached to the correctional supervision sentence. However in the ipssisma verba judgment, in relation to the additional sentence the magistrate in addition to the condition that the appellant must repay South Africa Revenue Services, adds that she “must comply in full of (sic) the conditions as set out in paragraph 1 to 8 (supra)”. This creates the impression that conditions 1 to 8 also apply to the additional sentence that was suspended.

[9] The review is brought in terms of Section 22 (1) (c) of the Superior Courts Act 10 of 2013. Section 22 provides thus:

“22 Grounds for review of proceedings of Magistrates’ Court

(1)   The grounds upon which the proceedings of any Magistrates’ Court may be brought under review before a court of a Division are-

(a)    ... ... ...

(b)   ... ... ...

(c)    Gross irregularity in the proceedings; and

(d)   ... ... ...”

A similar provision is contained in Section 24 of the Supreme Court Act no. 59 of 1959. In their publication Erasmus Superior Court Practice, the authors define a gross irregularity as follows:

A “gross irregularity” in civil proceedings in an inferior court means an irregular act or omission by the presiding judicial officer (or possibly some other official of the court) in respect of the proceedings of so gross a nature that it was calculated to prejudice the aggrieved litigant, on proof of which the court would set aside such proceedings unless it was satisfied that the litigant had in fact not suffered any prejudice. ([Service 41, 2013] A1-71)

In my view this applies to criminal proceedings as well.

[10] There are discrepancies between what the magistrate said during sentencing and what is contained in the document that was handed to the appellant at the time. The question is whether these are such that they amount to a gross irregularity in the proceedings, one that may result in the vitiation of the proceedings. It was submitted on behalf of the appellant that there is no suggestion that the appellant is a flight risk. It may be so, but that is not the only applicable requirement when bail pending an appeal or review is concerned. The question whether the review has prospects of success or not is one such consideration. It is noteworthy that at no stage, including the stage of the proceedings concerned with the bringing into operation of the suspended sentence, did the appellant raise the issue that she did not understand the sentence – in particular the suspended sentence. It is my considered view that faced with these circumstances, upon considering the application for review, it is unlikely that the court will set the proceedings or sentence aside. At the most it is likely to correct the sentence as recorded in the document that was handed to the appellant to accord with the sentence that was pronounced by the magistrate. I am therefore not persuaded that there is a gross irregularity that has the effect of vitiating the proceedings. I am therefore of the view that, there was no misdirection on the part of the magistrate in refusing to admit the appellant to bail pending review.

[11] It was brought to my attention during the present proceedings that the first respondent in the review proceedings has not complied with Rule 53 1 (b) of the Uniform Rules of this court as called upon by the applicant. Namely to dispatch, within 15 days after receipt of the notice of motion, to the Registrar the record of such proceedings sought to be corrected or set aside, together with such reasons as he is by law required or desires to give or make, and to notify the applicant that he has done so.

[12] There can be no doubt that this failure will delay the setting down and therefore hearing of the review application and therefore prejudice the applicant.

[13] I accordingly make the following order:

(i) The appeal against the refusal by the Magistrate to admit appellant to bail is dismissed.

(ii) The first respondent in the review application is ordered to comply with Rule 5 (1) (a) and (b) of the Uniform Rules of this court within ten (10) days of this order.

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N G BESHE

JUDGE OF THE HIGH COURT

 

APPEARANCES

For the Appellants                     :  ADV: Wessels

Instructed by                             :  S B MAQUNGU ATTORNEYS

                                                            6 Graham Street

                                                            North End

                                                            PORT ELIZABETH

                                                            Ref.: Mr S B Maqungu

                                                            Tel.: 041 – 487 0874 / 082 2286 113

                                                                              

For the Respondent                   :   ADV: Van Zyl

Instructed by                             :    THE DIRECTOR OF PUBLIC PROSECUTIONS

                                                            294 Hancock Street

                                                            North End

                                                            PORT ELIZABETH

                                                            Ref.: Mr Van Zyl

                                                            Tel.: 041 – 405 1400 / 084 5200 281

 

Date Heard                               :           16 July 2014

Date Reserved                          :           16 July 2014

Date Delivered                          :          19 August 2014

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