POWERS OF COURT ON APPEAL – REVIEW NOT TO BE USED AS BACK DOOR FOR APPEAL ON MERITS WHERE LEAVE GRANTED ON SENTENCE ONLY

S v MASUKU 2017 (2) SACR 321 (WCC)

Appeal — Powers of court on appeal — Review powers — Not to be used as back door for appeal on merits where leave granted to appeal on sentence.

Indictment and charge — Charge-sheet — Requirements — Date of offence — Error in charge-sheet — Not material to offence and nature of defence — Proceedings not vitiated by defect.

In an appeal against sentences imposed in a regional magistrates’ court in December 2002 (for robbery with aggravating circumstances and kidnapping), but where the appeal was heard only in June 2016, the court noted that the appellant’s heads of argument were directed at the merits of the convictions, whereas there was no appeal before the court in that respect. The sole point relating to the alleged impropriety of the sentence was not proceeded with.

The thrust of the attack on the merits was that the convictions were irregular, since, at the times alleged in the charge-sheet, the appellant was in prison in respect of another case. At the hearing in the court a quo, the appellant had changed his initial plea of not guilty to one of guilty and admitted and confirmed the contents of a statement drawn up by his attorney and handed in on his behalf. In his original plea explanation, he had denied all knowledge of the first robbery at a hotel, and, in respect of the second robbery, in which a car had been taken from its owner at gunpoint and the owner was deprived of his freedom for a period whilst he was being driven around in his car, he stated that he was in the process of buying the car from its owner at the time.

Held, that, given that the appellant was legally represented at the time of his trial and had freely and voluntarily made certain admissions to each of the elements of the three charges against him, and that he was only before the court in regard to sentence, the provisions of s 304(4) of the Criminal Procedure Act 51 of 1977 (the CPA) could not be used as a back door appeal against his conviction on the merits. Nor could they be used for the court to act in terms of its special powers of review under the section (see [23]).

Held, further, that in the present instance the dates when the robbery and kidnapping occurred were not material and essential elements of the offence, nor were they material to the defence that was pleaded by the appellant in that regard. Even when the time of commission was a material element of an offence, where this was stated incorrectly in a charge-sheet, such defect could be cured by way of evidence formally rectified by the court in terms of s 86(1) of the CPA. The defect in the present matter accordingly did not render the proceedings unfair and did not vitiate the convictions (see [33]–[34]).

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