Ishmael Blessing Segwati v The State

The appellant was employed at Emperor's Palace Casino in Kempton Park when he was convicted in the regional court on charges of theft (R800,000) and attempted theft (R200,000), both offences committed on the same day. The appellant had previous petty convictions for theft and fraud committed more than 14 years prior. The trial court regarded the appellant as a third offender under s 51(2)(a)(iii) of the Criminal Law Amendment Act 105 of 1997 and imposed a prescribed minimum sentence of 25 years' imprisonment. The appellant's application for leave to appeal under s 309B of the CPA was refused by the regional court, and his petition under s 309C to the Gauteng Division of the High Court was dismissed on 21 October 2014. He then petitioned the Supreme Court of Appeal for special leave to appeal.

• Whether the trial court properly considered the appellant's previous convictions when imposing a prescribed minimum sentence
• Whether previous convictions older than 14 years could be taken into account for sentencing purposes in light of s 271A of the Criminal Procedure Act 51 of 1977
• Whether the high court erred in refusing leave to appeal against sentence
• Whether the Supreme Court of Appeal could interfere with the sentence itself or only with the refusal to grant leave to appeal

The appeal was upheld. The order of the court a quo was set aside and replaced with an order granting the applicant leave to appeal to the Gauteng Division of the High Court, Johannesburg, solely against the sentence imposed upon him for his convictions of theft and attempted theft.

Where an offender's previous convictions were committed more than 14 years before the current offences, and those previous convictions relate to offences contemplated in s 271A of the Criminal Procedure Act 51 of 1977, such previous convictions 'shall fall away as a previous conviction' in terms of that section and cannot be taken into account for sentencing purposes, including when determining whether the offender qualifies as a third offender subject to prescribed minimum sentences. When an appeal is brought to the Supreme Court of Appeal against a high court's refusal to grant leave to appeal under s 309C of the CPA, the SCA can only interfere with the order refusing leave to appeal; it cannot determine the merits of the appeal itself or impose a different sentence - that must be done by the high court to which leave to appeal has been granted.

The Court noted that both the magistrate and the high court had presumably overlooked the application of s 271A of the CPA. The Court referenced previous judgments (S v Matshona 2013 (2) SACR 126 (SCA) para 4 and S v Tonkin 2014 (1) SACR 583 (SCA)) confirming the limited jurisdiction of the SCA in such matters. The Court also observed that while the convictions themselves were indisputable, the sentence clearly warranted reconsideration in light of the improper consideration of previous convictions. The Court noted that the parties had attempted in written argument to persuade it to impose what they viewed as an appropriate sentence, but explained why it lacked jurisdiction to do so.

This case clarifies the operation of s 271A of the Criminal Procedure Act 51 of 1977 and its effect on sentencing, particularly regarding prescribed minimum sentences. It emphasizes that previous convictions that occurred more than 14 years before the current offences must fall away and cannot be considered for sentencing purposes. The judgment also reinforces the limited role of the Supreme Court of Appeal when dealing with petitions for leave to appeal under s 309C of the CPA - the SCA can only interfere with the refusal to grant leave to appeal but cannot determine the merits of the appeal itself or impose a different sentence. The case serves as a reminder to trial courts to properly apply s 271A when considering previous convictions for sentencing purposes, particularly when prescribed minimum sentences are being considered.