1. UNAUTHORIZED REMOVAL OF HUMAN TISSUE NOT A CRIME ANYMORE. 2. JURISDICTION IN CONSPIRACY TO COMMIT CRIME OUTSIDE THE BORDER

S v FREDERIKSEN 2018 (1) SACR 29 (FB)

 

Health offences — Human tissue — Unauthorised removal of — Statutory offences that existed under former Human Tissue Act 65 of 1983 repealed by and not included in National Health Act 61 of 2003.

General principles of liability — Conspiracy — Jurisdiction — Conspiracy in South Africa to murder victim in another country — Court in South Africa having jurisdiction.

 

The accused was charged in the High Court with numerous offences, including 10 counts of contravening of s 58 of the National Health Act 61 of 2003 (the Health Act) and 10 counts of contravening s 55 read with s 56 ofthe Health Act relating to the removal of human tissue from persons without their written consent and outside a hospital or another institution (in the case of the first group of 10 counts), and not done in accordance with the prescribed manner or procedure (in the second group of 10 counts). He was also charged with conspiracy to commit murder under s 18(2) of the Riotous Assemblies Act 17 of 1956.

At the end of the prosecution’s case, the accused applied for his discharge on these counts. He contended, in respect of the charges under the Health Act, that no provision had been made in that Act for creation of offences in respect of the acts he was accused of. In respect of the conspiracy charge, he contended that, since it related to an agreement he had allegedly made with a fellow prisoner for the murder of a witness outside the borders of South Africa (in Lesotho), the court could not convict him on this count.

Held, as to the 20 counts under the Health Act, that offences relating to the removal of human tissue had been created by the repealed Human Tissue Act 65 of 1983, but for an unknown reason, the legislature, supposedly well aware of the offences in that Act, failed to create criminal offences for similar transgressions in the Health Act. The Act could further not be interpreted to the extent that criminal offences had been created for transgressing the provisions of ss 55 and 58: the court could not venture into the arena of the legislature merely because it might be of the view a casus omissus had occurred. The accused accordingly had to be discharged on these counts. (See [11] and [16].)

Held, as to the conspiracy charge, that it would have grave consequences for South Africa’s international standing if it allowed its citizens and others to conspire in South Africa to commit crimes in neighbouring or other countries without sanction. The essential factual findings on the charge were sufficient for a reasonable court to convict upon and the accused had to be put to his defence in respect of this charge.

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HARSH SENTENCES FOR HUMAN TRAFFICKING

S v DOS SANTOS 2018 (1) SACR 20 (GP)

 

Human trafficking — Sentence — Imprisonment — Life imprisonment — Woman part of criminal enterprise trafficking young women to South Africa for sexual purposes — Sentence upheld on appeal.

 

Theappellant appealed against a sentence of life imprisonment imposed on her in a regional magistrates’ court on conviction of three counts of trafficking in persons for sexual purposes in contravention of s 71(6)(a) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. She was also sentenced to 12 months’ imprisonment for living off the earnings of sexual exploitation of a child in contravention of s 17(5) of the same Act. It appeared that the appellant was not only instrumental in securing the presence of the complainants in South Africa, having lured them into the country from Mozambique, but was also responsible for keeping them in the country under threat of prosecution as illegal immigrants. They were forced, against their will, to perform sexual acts, on occasion up to eight times a day, on the instructions of the appellant. They were not allowed to leave the house where they were kept unless they were accompanied by the appellant. They received little food, no money, and very little clothing. On appeal,

Held, that the abuse of the young complainants was the result of an elaborate and organised criminal enterprise and the regional magistrate had correctly found that several persons had participated in the facilitation of the crimes. There was clearly an illicit infrastructure to transport the young women across the border into South Africa under escort and the mere existence of such infrastructure justified the inference that the crimes of which the appellant had been convicted, comprised but a fraction of the criminal activity the United Nations Convention against Transnational Organised Crime and its protocol aimed to address. The transport of the complainants to and from South Africa further demonstrated the involvement of corrupt government officials. These circumstances created a climate that lent itself to the commission of the crimes and collectively constituted compelling reasons for imposing harsh sentences in appropriate cases such as the present. (See [11].) The appeal was dismissed.

REVIEWABILITY OF PLEA

S v MM 2018 (1) SACR 18 (GP)

 

Plea— Plea of guilty — Written statement in terms of s 112(2) of Criminal Procedure Act 51 of 1977 — Court establishing after conviction that not all necessary elements of liability admitted — Powers of trial court — Court entitled to proceed in terms of s 113(1) of Act and not necessary to have matter reviewed by High Court.

 

The accused was a boy under the age of 14 years who had pleaded guilty in a regional magistrates’ court to a charge of contravening s 51(3) of the Criminal Law Amendment Act 105 of 1997, in that he had inserted his fingers into the anus of a 6-year-old complainant. His legal representative handed in a statement in terms of s 112 of the Criminal Procedure Act 51 of1977 and he was convicted on the basis of that statement. The magistrate only became aware after conviction that the accused was under the age of 14 at the time of the offence and that there was nothing on record to prove that the accused had criminal capacity. The conviction had to be set aside and the magistrate sent the matter on special review where differences emerged as to the proper procedure to be followed.

The court held that it was appropriate to act in terms of s 304(2)(c)(v) of the Criminal Procedure Act 51 of 1977. As the regional magistrate was empowered under s 113(1) to correct the error, there was no need for the court itself to make any such order. (See [7].)

TEST FOR CHILDREN’S EVIDENCE

S v HAUPT 2018 (1) SACR 12 (GP)

 

Evidence — Witnesses — Children — As complainants in sexual offences — Required to respond to and answer all questions — In light of inadequate responses, it could not be said that evidence clear and reliable in all material respects.

 

The appellant appealed against his conviction in a regional magistrates’ court of a count of attempted rape and one count of sexual assault. The record of the proceedings showed that the complainant, a girl who was 12 years old at the time of the offences and was testifying three years later, was unable to respond to some questions under cross-examination or gave replies to the effect that she would prefer not to respond to a particular question. The court appeared not to attach any weight to the inadequate responses.

Held

The state relied on the complainant’s evidence and it was accordingly imperative for her to respond and answer all questions put to her. In light of the inadequate responses it could not be said that her evidence was clear and reliable in all material respects. The trial court had therefore not applied the cautionary rules adequately in evaluating her evidence and this constituted a misdirection (see [18]). In the circumstances, the state had not proven its case beyond reasonable doubt and the appeal had to be upheld (see [26]).

DETENTION AT PSYCHIATRIC HOSPITAL NOT REVIEWABLE UNDER SECTION 302 OF CPA

S v CACAMBILE 2018 (1) SACR 8 (ECB)

 

Review— Of detention at psychiatric hospital pending decision by judge in chambers — Not subject to review in terms of s 302 of Criminal Procedure Act 51 of 1977.

Trial — Mental state of accused — Order in terms of s 47 of Mental Health Act 17 of 2002 — Reviewability under s 302 of Criminal Procedure Act 51 of1977.

Trial — Mental state of accused — Order in terms of s 47 of Mental Health Act 17 of 2002 — Lawyers encouraged to use term ‘psychiatric hospital’ or ‘institution’ for ‘mental hospital’.

 

A magistrate had found the accused guilty of assault with intent to do grievous bodily harm, and, applying the provisions of s 77(6)(a)(i) of the Criminal Procedure Act 51 of 1977 (the Act), ordered that he be detained at a ‘mental hospital’ pending a decision by a judge in chambers in terms of s 47 of the Mental Health Care Act 17 of 2002. The magistrate recorded that the matter was subject to automatic review, as provided for in s 302 of the Act.

Held, that an order for the detention of an accused person pending a judge’s decision was not a sentence and as such was not automatically reviewable. (See [2].)

Held, further, that the court had not been informed of the nature and extent of any admissible evidence against the accused, and this was fatal to the proceedings. (See [10].)

Semble: The magistrate made reference to the accused being detained at a ‘mental’ hospital pending a judge’s decision in terms of s 47 of the Mental Health Care Act or until a further lawful order was given for the accused’s ‘disposal’. Lawyers were encouraged to use the term ‘psychiatric hospital ‘or ‘institution’ instead. It was unclear what the word ‘disposal’ was intended to convey, but it was simply offensive. (See 15].)

COMBINED SENTENCES UNDESIRABLE

S v RANTLAI 2018 (1) SACR 1 (SCA)

Sentence — Combined sentence — Undesirability of reiterated.

On conviction in a regional magistrates’ court of three counts of robbery, the court imposed a globular sentence of 20 years’ imprisonment for the three counts taken as one for the purposes of sentence. On appeal to the High Court against the conviction and sentence, the court set aside the conviction on one of the counts but left the sentence intact. In a further appeal, the appellant contended that, having had one of the convictions set aside, he deserved to get the benefit of that conviction falling away reflected in his sentence.

Held, that although there was no bar to imposing a globular sentence, it was imperative for judicial officers to consider the desirability of such a sentence carefully before imposing it, bearing in mind the kind of problems it might cause. The present case was a classic example of the kind of serious, if not intractable, problems which would occur on appeal where some counts were set aside and there was a need to alter the globular sentence imposed. Although useful at times, such a sentence had to be imposed in exceptional circumstances only. (See [15].)

Held, further, that what had happened in the present case amounted to an injustice and the sentence had to be altered. An appropriate method of doing this would be to sentence the appellant to 15 years’ imprisonment on each of the remaining two counts, such sentences being ordered to run concurrently.

PERMANENT STAY OF PROSECUTION MAY BE GRANTED

Van Heerden and another v National Director of Public Prosecutions and others [2017] 4 All SA 322 (SCA)

Criminal law and procedure – Permanent stay of prosecution – Lengthy delays in finalisation of criminal trial – Infringement of constitutional right to a fair trial entrenched in section 35(3) of the Constitution of the Republic of South Africa, 1996, which includes the right to have trial begin and conclude without unreasonable delay – While an application for a permanent stay of prosecution is an extraordinary remedy, that does not mean that such relief cannot be granted in appropriate circumstances.