THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case no:  318/06
REPORTABLE

In the matter between:

JOHANNES DE WET NEL                                              APPELLANT

and

THE STATE                                                                    RESPONDENT

Before:
Cameron et Mlambo JJA et Musi AJA

Heard:
20 March 2007

Delivered: 11 May 2007

Summary:
Sentence - substantial and compelling circumstances – financial pressures and drug addiction - and
other factors – on appeal - sentence of fifteen years set aside – S v Wasserman 2004 (1) SACR 251
(T) criticised.

Neutral citation:
This judgment may be referred to as Nel v The State [2007] SCA 51
(RSA)

MLAMBO JA

[1] On 2 March 1999 the regional court sitting in Port Elizabeth convicted the
appellant, pursuant to his guilty plea, of armed robbery with aggravating
circumstances. He had committed the robbery on 19 February 1999. On 13 August
1999 after hearing expert evidence in mitigation the regional court sentenced him to
15 years’ imprisonment in terms of s 51(2)(b) of the minimum sentencing legislation
(Criminal Law Amendment Act, Act 105 of 1997).

[2] The protracted delay in the appeal being heard eight years later deserves
explanation. The regional court refused appellant’s application for leave to appeal in
terms of s 309(1)(c) of the Criminal Procedure Act 51 of 1977. He then petitioned the
Eastern Cape division of the High Court for leave to appeal against sentence. This
also was refused on 28 September 2000. Four years later, on 3 November 2004, the
appellant lodged a review application in that division seeking an order to set aside the
refusal of his petition and an order granting him leave to appeal to that division
alternatively to this court. This was a strange step and obviously ill-conceived as
Froneman J (Erasmus and Plasket JJ concurring), pointed out when he dismissed that
application on 26 October 2005.

[3] No doubt having at last received correct advice, the appellant applied to the
Eastern Cape division for leave to appeal to this court against the decision refusing
his petition. That application was granted by Pickering J (Plasket J concurring). This
is therefore an appeal against the refusal of the appellant’s petition (see S v Khoasasa
2003 (1) SA 123 (SCA)).

[4] The undisputed facts are the following: on the morning of 19 February 1999,
the appellant, armed with a firearm, went to the Lorraine Entertainment Centre in
Port Elizabeth, held up the staff, locked them in the ladies’ toilet and robbed them of
an amount of R32 595. He was arrested on the same day and when he appeared in the
regional court on 2 March 1999 he pleaded guilty and was convicted.

[5] His guilty plea in terms of s 112 of Act 51 of 1977 states, inter alia, that he
‘committed this crime as a result of financial pressure from gambling and my
business enterprises’. It also states that he used his personal revolver, having removed
the bullets before the robbery. These facts were not disputed by the state when
accepting the plea.

[6] The appellant testified in mitigation of sentence and also called a clinical
psychologist, Mr Barend Christoffel Breedt. The appellant’s evidence was that he
was suffering from a gambling addiction which had started in 1994 and which he had
failed to kick despite stopping for a short while in 1995 but which flared up again in
1996. In 1998 he gambled away ±R400 000 (R300 000 at the Fish River Sun,
R40 000 at the Lorraine Entertainment Centre and R60 000 at the 777 Casino also in
Port Elizabeth). He stated that gambling had consumed him to such an extent that
gambling houses had recognised him as one of the top ten gamblers and rewarded
him with the status of ‘most valued guest’ (MVG). This status entitled him to free
accommodation, food and drinks whenever he visited the casinos. He testified that he
spent practically all his weekends and spare time gambling.

[7] He had been generating an income in the region of R117 000 per month from a
Telkom guarding contract and from his gardening contracts. Despite this income he
steadily sank into the red because of his penchant for gambling. He had a monthly
wage bill of some R87 000 and because of gambling he found himself in dire straits
from November 1998 when Telkom opted to pay him monthly instead of weekly. On
5 February 1999 Telkom cancelled his contract. In addition he was experiencing
problems with his gardening contracts – a situation that led to his overheads far
outstripping his income and rendering him unable to pay his staff their wages. He
started taking loans from money lenders but gambled the money away in the hope of
winning.

[8] On the morning of 19 February 1999, he told the court, he desperately needed
money to pay his guards who were camped at his house waiting for their wages. He
was able to source a loan of R1 200 early that morning from a money lender, and
proceeded to Lorraine Entertainment Centre to gamble – hoping to make more money
to be able to pay his guards. He hit a winning streak and at some stage had R4 500.
As this was not enough to pay his guards he continued gambling but then lost
everything. That was (he said) when he decided to rob the Lorraine Entertainment
Centre.

[9] He went to his house, took his firearm and emptied it of all live rounds, put on
a balaclava to cover his face, and put a falsified number plate at the front (though not
the back) of his car and drove to the Lorraine Entertainment Centre. On arrival he sat
in his car for some time contemplating whether to go ahead with his plan. He
eventually decided that he had no choice and went in. He proceeded to hold up the
manageress, rounded up all the staff, locked them inside the ladies’ toilet and then
took an amount of R32 595 and left. He went to his girlfriend’s house where he left
the loot and took R500 and went to the 777 Casino to gamble yet more. In a very
short time, that is where the long arm of the law caught up with him and he was
arrested followed by the recovery of the loot at his girlfriend’s residence the next day.
It appears from his evidence that his childhood was by no means happy, being
apparently dominated by feelings of inadequacy in relation to his father. This, too, he
and his expert witness linked to his gambling pathology.

[10] The essential features of the evidence of Mr Breedt were that: generally the
appellant was emotionally immature and compulsive, had feelings of inadequacy and
low esteem which drove him to live in a fantasy world, which enabled him to
compensate for those feelings and which affected his ability to take rational decisions
within the context of his circumstances; that he was a compulsive gambler with little
or no insight into that situation, that he suffered from a personality defect manifesting
in a pathological gambling problem and a narcissistic personality; that he had reached

the third and last phase of gambling addiction which was a disorganised phase where
gambling had completely taken over his life manifested by him completely losing
control over his life, and that he remained a danger to society unless he received
treatment for his addiction.

[11] Mr Breedt testified that the appellant needed long-term psychological
treatment to deal with his gambling addiction and that long-term imprisonment and
the appellant’s removal from gambling facilities without the necessary psychological
treatment would have no effect on him. He refuted the notion that the appellant was
driven merely by egocentricism and self-centredness when he committed the offence.
He stated that as far as he was concerned the stupidity of the appellant in robbing a
place in which he was well-known showed that he had become desperate in his
specific gambling situation, a direct indication that his ability to take rational
decisions had become impaired.
[12] In imposing the sentence of 15 years the regional magistrate treated the
appellant as a first offender, and stated that he was enjoined to apply s 51(2)(b) of Act
105 of 1997 and further that, as robbery with aggravating circumstances was a very
serious offence, he was obliged to impose a minimum sentence of 15 years unless it
was shown that there were substantial and compelling circumstances justifying the
imposition of a lesser sentence. The regional magistrate found that the fact that the
appellant had emptied his firearm before he committed the robbery was irrelevant
because his victims had no way of knowing that he had done so, that the fact that the
money he robbed had been recovered was not due to his cooperation but was due to
the diligence of the police and therefore this did not lower the moral blameworthiness
of his deed. The regional magistrate reasoned that the fact that the appellant derived
no benefit from the robbery, that he had led an exemplary life and was, in his middle
age, a first offender and had showed remorse by pleading guilty, that there was no
harm occasioned to his victims and his unfortunate childhood were all factors which
any court would take into account in the normal course in mitigation of sentence. In
his view however the minimum sentencing legislation required something more to

qualify as substantial and compelling circumstances: the mere absence of aggravating
circumstances did not imply there were substantial and compelling circumstances. He
found that in the appellant’s personal circumstances he could find nothing
exceptional save that his personal situation was a lot better than the average robber.
He found that the appellant committed the offence to maintain a certain lifestyle
which could never be an acceptable reason. He concluded that even if he were to
accept that the appellant was a compulsive gambler he could not accept that it was a
valid excuse.

[13] In this court counsel for the appellant criticised the regional court’s reasoning
as rigid and incorrect. Counsel submitted that the regional magistrate was clearly
wrong in the light of S v Malgas 2001 (1) SACR 469 (SCA). Counsel submitted that
the appellant’s pathological gambling had made drastic inroads into his ability to
make rational decisions and should have been viewed on its own as a mitigating
factor and was in the nature of things a substantial and compelling circumstance
justifying the imposition of a sentence less than the ordained minimum.

[14] Counsel relied for these submissions on the decision in S v Wasserman 2004
(1) SACR 251 (T). In that case the Pretoria High Court (Patel J, Fourie AJ
concurring) imposed a sentence of correctional supervision in terms of s 276(1)(i) on
a person who had stolen more than R1 million to finance a gambling addiction. The
Court arrived at this sentence by relying, firstly, on an academic article which
apparently suggests that pathological gambling is a disease. The Court also referred
to the Canadian decision in R v Daniel S Bambury 2001 NSSC 73 and the Australian
decision in R v Petrovic [1998] VSCA 95 and concluded that pathological gambling
was on its own a mitigating factor and qualified as a substantial and compelling
circumstance justifying the imposition of a sentence less than the ordained minimum.

[15] In my view the reasoning in Wasserman was unnecessarily overbroad, and it is
not surprising that the Court was unable to find support for its views in the South

African jurisprudence. In my view the Court's approach was so broadly expressed as
to amount to an undue relegation of the retributive and deterrent elements in
sentencing in favour of the rehabilitative and reformative elements. Indeed it could
open the door to undue reliance by gambling addicts on their addiction to escape an
appropriate sentence in the form of direct imprisonment.

[16] A gambling addiction, like alcohol or drug addiction, can never operate as an
excuse for the commission of an offence. In S v Sithole 2003 (1) SACR 326 (SCA)
this court found that alcohol addiction can not be an excuse for driving under the
influence of alcohol. Conradie JA stated at 329g–h:

‘[7]
Courts in this country have long acknowledged that alcohol addiction is a disease and that it
would be to the benefit of society and of the offender if the condition can be cured. But it is
necessary to make the obvious point that drunken driving is not a disease. One is distressingly
familiar with maudlin pleas in mitigation that the drunken driver in the dock is an alcoholic, as if
the disease excused the crime. It does not.’

What is more, a reading of R v Petrovic [1998] (supra) reveals that it does not support
the approach in Wasserman. That case, like Wasserman and this case, had to do with
a pathological gambler who had committed crimes actuated by the addiction (the
offences in Petrovic ranged from theft to fraud). Delivering the main judgment,
Charles JA stated:

‘20.
The fact that an offender was motivated to the commission of the crimes in question by an
addiction to gambling will, no doubt, usually be a relevant, and may be an important consideration
for a judge sentencing the offender for these crimes. But as Tagdell, J.A. said in R. v Cavallin (…)
“It is . . . important that the public does not assume that a crime which is to some extent generated
by a gambling addiction, even if it is pathological, will, on that count, necessarily be immune from
punishment by imprisonment.”

21.
It is considerations such as these which have led this Court to say more than once that it will
be a rare case indeed where an offender can properly call for mitigation of penalty on the ground

that the crime was committed to feed a gambling addiction;. . .’

The ratio is thus clear. Whilst a gambling addiction may be found to cause the
commission of an offence, even if it is pathological (as in this case), it cannot on its
own immunise an offender from direct imprisonment.  Nor indeed can it on its own
‘be a mitigating factor, let alone a substantial and compelling circumstance justifying
a departure from the prescribed sentence’, in the words of Stephan Terblanche in
South African Journal of Criminal Justice (2004) 17 at 443 who, correctly in my
view, criticises the approach in Wasserman.

[17] To find substantial and compelling circumstances, we must thus look more
broadly. I turn therefore to consider the alternative submission advanced by the
appellant’s counsel that the appellant’s addiction viewed with the other factors
amounted to substantial and compelling circumstances. Counsel for the state, whilst
lamenting the reliance on Malgas, which was not available when the regional
magistrate passed sentence and when the Eastern Cape High Court refused the
petition, submitted in this court that none of the other factors advanced amounted to
substantial and compelling circumstances, that in fact the appellant was driven by
egocentricism and the desire to maintain a certain lifestyle when he committed the
robbery. For these reasons she submitted that the 15-year sentence was justified.

[18] The plain fact is that when the regional magistrate imposed the sentence, and
the Eastern Cape High Court refused the petition, the decision in S v Malgas (supra)
had not yet been handed down. There this court settled the issue regarding the correct
meaning of ‘substantial and compelling circumstances’ and the approach to be
followed in applying it. It was not and cannot be contended that the decision is not
applicable. This court stated at 477j–478b:

‘To the extent therefore that there are dicta in the previously decided cases that suggest that there
are such factors which fall to be eliminated entirely either at the outset of the enquiry or at any
subsequent stage (eg age or the absence of previous convictions), I consider them to be erroneous.

Equally erroneous, so it seems to me, are dicta which suggest that for circumstances to qualify as
substantial and compelling they must be “exceptional” in the sense of seldom encountered or rare.
The frequency or infrequency of the existence of a set of circumstances is logically irrelevant to the
question of whether or not they are substantial and compelling.’

[19] It is apparent therefore, with the hindsight of the Malgas decision, that the
regional magistrate was incorrect in his approach. Clearly all factors are relevant; the
essential question is whether any or some or all of them amount to substantial and
compelling circumstances within the contemplation of the legislation.

[20] As previously mentioned, in his written guilty plea the appellant stated that he
‘committed this crime as a result of financial pressure from gambling and my
business activities’. These facts were accepted by the state and in convicting him the
regional magistrate stated that the appellant was found guilty ‘ooreenkomstig u pleit
van skuldig’. Clearly this entails that the state is bound by those facts (compare S v
Groenewald 2005 (2) SACR 597 (SCA)). Those facts show that the appellant’s
financial pressures and his gambling addiction were inextricably linked to the other
relevant factors, such as that he was a first offender and showed remorse by his guilty
plea. They certainly should not have been found to be irrelevant but deserved
appropriate consideration and effect in the sentencing process. The financial
pressures caused by the gambling addiction were clearly pivotal in the appellant’s
decision to commit the robbery. His objective, in that skewed state of mind, attested
to by Mr Breedt, was to rob to have access to money to ease his financial burdens
which in turn would enable him to continue gambling. In this regard Breedt testified,
and he was not seriously challenged in this, that the appellant was at the third and last
phase of gambling addiction and that he was in an almost panic condition illustrated
by the absurdity and improbability of how he went about committing the robbery.
These factors and others – such as that he ultimately derived no benefit from the
offence, emptied his firearm, did not physically injure the victims, that the robbery
was amateurish to say the least, involving a place where he was so well known – are
demonstrably weighty in assessing whether there are substantial and compelling

circumstances.

[21] In my view all these factors show that there were indeed substantial and
compelling circumstances that permitted the regional court to impose a sentence less
than the ordained minimum of 15 years. In my view, instead of the 15 year sentence a
sentence of 10 years was appropriate in the circumstances.

[22] In the circumstances the appeal succeeds and the sentence imposed by the
regional court is set aside and replaced with a sentence of 10 years’ imprisonment.
___________
D MLAMBO
JUDGE OF APPEAL
CONCUR:
CAMERON JA
MUSI AJA

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
11 May 2007

Status:
Immediate

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

JOHANNES DE WET NEL v  THE STATE

1.
The Supreme Court of Appeal today upheld an appeal by the appellant
against a sentence of 15 years’ imprisonment. The sentence was
imposed by the Port Elizabeth regional court and upheld by the Eastern
Cape Division of the High Court on one count of robbery with aggravating
circumstances. The appellant armed with a firearm, robbed the Lorraine
Entertainment Centre Casino in Port Elizabeth, where he was a regular
gambler, of an amount of R32 595.

2.
In imposing the sentence of 15 years the regional court found that the
appellant’s pathological gambling addiction coupled with other factors did
not amount to substantial and compelling circumstances within the
contemplation of the minimum sentencing legislation. The Supreme
Court of Appeal found that the regional court had erred in interpreting the
minimum legislation as it did and concluding that there were no
substantial and compelling circumstances. The Supreme Court of Appeal
found that the appellant’s pathological gambling coupled with other
factors amounted to substantial and compelling circumstances which
justified a sentence of less than the 15 years’ imposed. The Supreme
Court of Appeal set aside the sentence of 15 years’ imprisonment and
replaced it with a sentence of 10 years’ imprisonment.