THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case no:
515/04

In the matter between:

MEMORY MUSHANDO MAGIDA

Appellant

and

THE STATE
Respondent

_______________________________________________________

Coram:
Navsa, Ponnan JJA et Maya AJA

Date of hearing: 18 August 2005
Date of delivery: 26 August 2005

Summary:
Appellant’s AIDS status a factor to be considered in deciding an
appropriate sentence ─ magistrate not supplying reasons for sentence ─ no reasons
requested by court below ─ matter requiring expeditious decision by this Court ─ principle
of individualisation of sentence restated and applied.

_______________________________________________________
JUDGMENT
_______________________________________________________

NAVSA JA:

[1] The appellant pleaded guilty to and was convicted of 99 counts
of fraud in the Bellville Magistrates’ Court. On 30 July 2001 she was
sentenced to 60 days’ imprisonment on each count, of which 40 days’
imprisonment was suspended on condition that she was not
convicted of fraud or theft or any attempt thereto committed during
the period of suspension. The cumulative total sentence amounted to
16 years and 3 months’ imprisonment. The unsuspended term of
imprisonment amounted to 5 years, 5 months and 2 days.

[2] The appellant served part of her sentence but was released on
bail pending her appeal to the Cape High Court. That appeal was
dismissed (per Hlophe JP and Franks AJ). The court below granted
leave to appeal that decision and further extended bail pending the
outcome of the present appeal.

[3] Before us the appellant applied to have evidence by way of
affidavits admitted on appeal. The affidavits reveal that the appellant
discovered, after she was sentenced, that she had contracted the
Human Immunodeficiency Virus (HIV), which had caused her to
develop full-blown Acquired Immunodeficiency Syndrome (AIDS). As

a result her life expectancy has been drastically reduced. She and the
doctors treating her describe the treatment she is receiving which is
not available to her in prison.  This evidence is set out in greater
detail later in this judgment. The state did not oppose the admission
of the evidence and, for reasons that will become apparent, it was
admitted on appeal.

[4] The following are the appellant’s grounds of appeal:
(a) The magistrate did not supply reasons for the sentence
imposed by him and the Cape High Court was therefore not at
liberty to deal with the question of sentence as though it had
been properly imposed;
(b) The appellant’s legal representative before the court below did
not properly present her case on appeal and she could
therefore not be considered to have had a fair appeal as
envisaged by the Constitution;
(c) The appellant’s HIV/AIDS status entitled her to a lesser
sentence.

[5] The accused was represented at her trial and her legal
representative presented the following facts from the side-bar (the
appellant did not testify):
The appellant was 26 years old and was the mother of a 7-year old
daughter who had been placed in the father’s custody. She was a first
offender. The appellant completed matric and had been in several
jobs after that. When she committed the offences in question she had
been unemployed.  The appellant perpetrated the fraud of which she
had been convicted by paying for goods with cheques from
chequebooks obtained by false pretences. She committed the
offences in concert with others.

[6] A probation officer’s pre-sentencing report was handed in
during the trial before the magistrate. The following additional
relevant facts appear from the report. The appellant’s father
disappeared from her life when she was very young. Her mother
married another man and left her in the care and custody of her
maternal grandmother. Whilst growing up she moved from relative to
relative. During the period 1995 to 1999 the appellant worked for a
total of six employers.  She contracted tuberculosis in prison while
awaiting trial, for which she received treatment. The appellant

expressed remorse to the probation officer. The latter recorded that it
was difficult to confirm the information supplied by the appellant
because of lack of time and the absence of contactable family
members, but that some of the information supplied by the appellant
(other than that recorded above) was false.  It was, however,
recorded in the appellant’s favour that the head of the prison in which
the appellant had been detained described her as well-mannered and
co-operative. The probation officer considered the offence with which
the appellant had been charged as serious, but did not make any
recommendation in respect of sentence.

[7] That then was the sum total of the material available to the
magistrate in respect of sentencing. The magistrate supplied no
reasons for the sentence imposed by him. Reasons were not
requested and the court below proceeded without the benefit of the
magistrate’s reasons.

[8] The appellant’s former legal representative did not apply to
have the evidence referred to in para [3] admitted in the court below.
It appears that all that he did was to make a submission
(encompassed in three very brief paragraphs in heads of argument)

that the appellant’s HIV status entitled her to a lesser sentence as
any sentence of imprisonment imposed would affect her more harshly
than it would a healthy person.

[9] At this stage it is necessary to set out in some detail the
evidence presented to us: On applying for bail pending the present
appeal, the appellant described how, without the proper treatment for
AIDS, she would die within a few months ─ even with treatment, her
life expectancy has been drastically reduced. She described further
how, in a government-sponsored initiative, she is receiving
antiretroviral treatment at Groote Schuur hospital in Cape Town.
Whilst awaiting trial in prison she contracted tuberculosis very quickly
because she had been HIV positive. The treatment received at the
hospital was not available in prison. The appellant contracted
shingles and thrush flowing from her AIDS condition. She described
in her affidavit how her diet in prison and a lack of the range of
necessary vitamins are not conducive to combating her present
condition. Whilst in prison the appellant became sicker. In her words:
‘My immune system crashed.’. Her exposure to opportunistic infections in
prison increases the risk to her health.

[11] The doctors treating the appellant at Groote Schuur confirm
that her return to prison will have a serious impact on her health and
that, without proper treatment, she will die prematurely. They confirm
the effectiveness of highly active antiretroviral therapy in the
treatment of AIDS. The head of the prison in which the appellant
served part of her sentence confirmed by way of a letter that
nevirapine, a vital antiretroviral drug in the fight against AIDS, is
unavailable in any prison.

[12] The following is the essential part of a very brief judgment in the
court below:
‘The appellant who pleaded guilty knew exactly what she was doing. When she is
in prison she will still be entitled to receive her treatment. No case has been
made out or no suggestion has been made that she has been deprived of
treatment for her HIV status by relevant authorities. I am not aware of any good
authority for the view that if someone is HIV positive, he or she may get away
with murder. In my view the sentence fits the crime. She was very lucky to get
this kind of sentence for the crimes she committed.
I would dismiss the appeal against sentence as being altogether without merit.’

[13] In S v Calitz en ‘n Ander 2003 (1) SACR 116 (SCA) this Court

said the following at 121i-j:
‘Hoe dit ook al sy, dit moet beklemtoon word dat die behoorlike beskerming,
enersyds, van ‘n appellant se grondwetlike reg tot appèl en, andersyds, die
gemeenskap se belang dat oortreders behoorlik gestraf word, van ‘n regterlike
amptenaar vereis dat deeglike aandag gegee word aan die formulering en
verstrekking van vonnisredes. Daarsonder word gesonde strafregpleging
belemmer.’

[14] The notice of appeal in the court below consisted of a letter by
the appellant herself. The legal representative who appeared on her
behalf in the court below did not deem it necessary to improve on or
supplement it.

[15] As stated earlier, the appellant’s legal representative in the
court below appeared to have contented himself with a submission
from the Bar that the appellant’s AIDS status entitled her to a lesser
sentence. He did not consider it necessary to request the magistrate
prior to the hearing in the court below to supply reasons for the
sentence imposed. Neither did the court below.

[16] In my view, the court below erred: first, in not considering that it
was necessary to call on the magistrate to supply reasons for the

sentence imposed; and, second, in failing to appreciate that, on the
new issue raised, it did not have sufficient evidential material or an
adequate notice of appeal before it.

[17] Whilst it is correct that any illness does not per se entitle a
convicted person to escape imprisonment, the facts presented to us
by the appellant and the issue raised before the court below comprise
matter forming part of the totality of the circumstances of a convicted
person that ought to be considered in order to do justice both to the
person to be sentenced and to society. See S v Berliner 1967 (2) 193
(A) at 199F-G and S v C 1996 (2) SACR 503 (T) at 511g-h. This
Court has for decades emphasised the importance of the
individualisation of sentence. See in this regard S v Blank 1995 (1)
SACR 62 (A) at 70f-71c.

[18] In S v Cloete 1995 (1) SACR 367 (W) and S v C, supra, it was
held that a court, in considering an appropriate sentence, may take
into account a convicted person’s ill-health and how it may relate to
the effect of a contemplated sentence. Thus, for example, a particular
sentence may be rendered more burdensome by reason of an
offender’s state of health.

[19] In respect of treatment that may or may not be available in
particular prisons, an appropriate order - after an investigation of all
the facts - may address the needs of the person to be sentenced.

[20] In the present case, where a pertinent issue was raised on
appeal, it ought rightly to have been considered and explored further.
Ideally the matter ought to be remitted to the magistrate for a
reconsideration
of
the
appropriate
sentence.
However,
the
circumstances in the present case are such as to warrant an
expeditious decision. We have all the necessary facts at our disposal
and given the history of the matter and the misdirections alluded to,
we are at large in deciding an appropriate sentence.

[21] The appellant was arrested on 19 July 2000 and remained in
custody until she was sentenced on 30 July 2001. She remained in
prison until 24 November 2003 when she was released on bail
pending the outcome of her appeal in the court below. The appellant
thus spent slightly more than 40 months in detention. Having regard
to all the factors referred to above, including the fact that the
appellant may die soon, and considering the seriousness of the
offence, the interests of the appellant and of society, I agree with the

submission by counsel for the State and the appellant that further
imprisonment is unwarranted. In my view, a sentence of
imprisonment equal to the time spent in prison subsequent to the
date on which the appellant had been sentenced by the magistrate is
an appropriate one.

[22] The following order is made:
The appeal is upheld. The sentence imposed by the trial court is set
aside and the following sentence is substituted:
‘The accused is sentenced to imprisonment for a period of two years, three
months and 25 days.’
The substituted sentence is antedated to 30 July 2001.

[23] The effect of the substituted sentence is that the appellant is
not to undergo any further period of imprisonment.

_________________
M S NAVSA
JUDGE OF APPEAL

CONCUR:

PONNAN JA
MAYA
AJA