MEANING OF PREVIOUS CONVICTION IN SECTION 51(2)(b) ACT 105 OF 1997

S v JACOBS 2015 (2) SACR 370 (WCC)

Sentence — Prescribed sentences — Minimum sentence — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — Previous convictions — Falling away of where older than 10 years — Court constrained to give effect to literal interpretation of para 271A(b) of Criminal Procedure Act 51 of 1977 — Attempted rape conviction falls away with such interpretation.
Sentence — Prescribed sentences — Minimum sentence — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — Meaning of term ‘first offender’ in s 51(2)(b) — No necessity to change plain, literal wording of term by allowing accused to be considered second offender where first offence common-law offence and second a statutory offence.

Held, that the 1980 conviction of rape, though older than 10 years, stood because the offence did not fall within the ambit of s 271A(b) of the CPA, namely ‘any other offence than that referred to in Schedule 1’. The appellant had, in any event, during the 10-year period been convicted of a sch 1 offence, namely attempted rape. The 1983 conviction of attempted rape also stood because he was convicted of attempted rape in 1989.
Held, further, that the question whether appellant’s 1989 conviction of attempted rape would fall away was, however, more problematic, and depended upon a proper interpretation of the 2009 version of para (b) of s 271A of the CPA, in which the introductory words were changed to ‘any offence’ and the words ‘exceeding six months’ replaced by ‘not exceeding six months’. This radically enlarged the ambit of s 271A(b) to include virtually all offences.
Since the court was constrained to give effect to a literal interpretation of s 271A(b), the appellant’s 1989 conviction of attempted rape fell away upon the commencement of the 2009 version of s 271A of the CPA on 6 May 2009. Attempted rape was an offence in respect of which a sentence of less than six years’ imprisonment might, depending upon the circumstances, be imposed and the appellant had not been convicted of any offence after 1989. If the court were wrong in its interpretation of s 271A(b) of the CPA, the same result B would be achieved, as it was in any event of the view that the appellant’s 1989 conviction of attempted rape lost its force through the passage of time.
Held, further, as to the interpretation of the term ‘a first offender’ in s 51(2)(b) of Act 105 of 1997, that the test for implying a provision into a statute was strict and there was no necessity to change the plain, literal wording of the term to allow for the appellant to be considered a second offender, in that he had been convicted in 1980 of rape, a common-law offence, whereas his present conviction was for a contravention of a statutory offence.
Held, further, that the appellant’s previous convictions should not have played a role in his sentencing and the regional magistrate ought to have treated him as a de facto first offender, and on that basis there were additional substantial and compelling circumstances justifying a lesser sentence than 10 years’ imprisonment, and in the circumstances a sentence of eight years’ imprisonment should have been imposed. The appeal was upheld in respect of sentence.

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