THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case no: 636/02

In the matter between:

ANDRé VAN ECK

Appellant

and

THE STATE
Respondent
_____________________________________________________

Coram:

SCOTT, HEHER JJA et  MLAMBO AJA

Date of hearing: 16 SEPTEMBER 2003
Date of delivery:  23 SEPTEMBER 2003
Summary:  Sentence – habitual criminal in terms of s 286(1) of Act
51 of 1977
____________________________________________________

JUDGMENT

_____________________________________________________

SCOTT JA/…

SCOTT JA:

[1] Following a plea of guilty, the appellant was duly convicted
on 19 February 1999 in the Port Elizabeth Regional court on one
count of theft and 14 counts of fraud. At the time of his trial he was
37 years of age. He had no fewer than 43 previous convictions, all
of which, save one, involved dishonesty. After hearing evidence in
mitigation the Regional Court declared him an habitual criminal in
terms  of s 286(1)  of  the  Criminal  Procedure Act, 51 of 1977
(‘the Act’). His appeal against sentence to the Eastern Cape
Provincial Division was unsuccessful.  The present appeal is with
the leave of that Court.
[2] The count of  theft  related  to  the  theft of a cheque book on
12 August 1997. Thereafter, and during the period 1 to 6
September 1997, the appellant on 14 occasions used forged
cheques either to obtain cash at banks or to purchase goods at
various retailers. Each occasion constituted the subject of one of
the 14 counts of fraud. The appellant’s purchases included luxuries
such as a camera and a watch. Apart from the cost of the cheque
book, the total amount involved was, however, the relatively
modest sum of R3 172,02.
[3] The appellant’s record of previous convictions makes
distressing reading. His first brush with the law occurred in May

1984 at the age of 22 years. During the period May to November
1984 he was convicted on no fewer than 21 counts of offences
involving dishonesty in the course of six separate appearances in
court. The offences in question comprised one count of
housebreaking with intent to steal and theft, four of theft of
cheques and 16 counts of fraud relating to cheques. Once again
the amounts involved were relatively modest and no doubt for this
reason the sentences imposed were lenient. On one occasion he
was cautioned and discharged. On the other occasions he was
either fined or sentenced to periods of imprisonment which were
wholly suspended.
[4] On 6 February 1985 the appellant was again convicted of
housebreaking with intent to steal and theft. The value of the
goods stolen is stated in the police record (the SAP69 form) to
have been R860. On this occasion the appellant was finally sent to
prison. He was then just 23 years of age. The sentence was two
years imprisonment. Furthermore, on 19 September 1985 a
suspended sentence of 4 months imprisonment previously
imposed was put into operation. In the meantime, on 28 March
1985, the appellant was back in Court on charges relating to
crimes committed prior to his imprisonment. On this occasion he
was convicted of the theft of a cheque as well as on one count of

forgery and one count of uttering.  The three counts were taken
together for the purpose of sentence and the period of six months
imprisonment which was imposed was ordered to run concurrently
with the sentence he was then serving. On 24 May 1986, after
serving just short of 16 months imprisonment, the appellant was
released on parole.
[5] It appears that for a period of some four years the appellant
kept out of trouble. On 25 October 1991 he was again convicted of
stealing a cheque book and fraud. He was sentenced to 12 months
imprisonment. Two months later on 12 December 1991 he faced a
further charge of theft of a cheque book and one count of forgery
and one of uttering. He was sentenced to a further period of 12
months for these offences which were committed either during or
before May 1990, ie some four years after his release on parole.
[6] On 31 March 1992 he was convicted of fraud relating to the
failure to pay an account. The offence appears not to have been
serious and he was cautioned and discharged. On 22 July 1992 he
was convicted on two counts of fraud committed prior to his
imprisonment in October 1991 and sentenced to five years
imprisonment. Once again the offences related to cheques. On this
occasion he was warned of the provisions of s 286 of the Act. A
month later on 25 August 1992 he was back in court facing further

charges relating to offences committed prior to his imprisonment in
October 1991. These comprised a total of seven counts of fraud,
once again involving cheques, one count of theft of a cheque book
and one count of driving a motor vehicle without the owner’s
permission. On the counts of fraud and theft he was sentenced to
a total of nine years imprisonment of which four years were
conditionally suspended. On the count of driving a motor vehicle
without the owner’s permission he was sentenced to six months
imprisonment. However, the sentence was ordered to run
concurrently with the sentence imposed on the other counts. The
effective period of imprisonment imposed on 22 July and 25
August 1992, therefore, amounted in total to ten years.
[7] On 20 June 1997 the appellant escaped from Pollsmoor
prison in the Western Cape where he was being detained. It
appears that three years previously he had become a monitor.
This enabled him simply to ‘walk out’ of prison after being refused
permission to make a phone-call. At the time, his date of parole
had been fixed at 23 March 1998. He remained on the run until 28
November 1997 when he gave himself up to the police at Kempton
Park. He explained in evidence that he realised that he could not
remain a fugitive for the rest of his life. He was subsequently
sentenced to five months imprisonment for escaping. The offences

which are the subject matter of the present case were committed
shortly before the appellant gave himself up.
[8] Section 286(1) reads:
‘(1)
Subject to the provisions of subsection (2), a superior court or a
regional court which convicts a person of one or more offences, may, if it is
satisfied that the said person habitually commits offences and that the
community should be protected against him, declare him an habitual criminal,
in lieu of the imposition of any other punishment for the offence or offences of
which he is convicted.’
Section 286(2) provides that no person shall be declared an
habitual criminal if under the age of 18 years or if in the opinion of
the court the offence by itself or together with any offence in
respect of which the accused is simultaneously convicted,
warrants imprisonment for a period exceeding 15 years. In terms
of s 286(3) a person declared an habitual criminal is to be dealt
with in accordance with the laws relating to prisons. Section
65(4)(b)(iv) of the Correctional Services Act 8 of 1959 provides, in
turn, that such a person ‘shall be detained in prison until, after a
period of at least seven years, he is placed on parole’.
[9] The requirements for a declaration under s 286(1) of the Act
are therefore: (i) the Court must be ‘satisfied’ (in the sense of
convinced; see S v Makoula 1978 (4) SA 763 (supra) at 768B-E)

both that the accused habitually commits crimes and that those
crimes are of such a nature that the community should be
protected from the accused for at least a period of seven years; (ii)
the accused must not be under the age of 18 years, and (iii) a
punishment is warranted which does not exceed 15 years
imprisonment. However, even if all these requirements are
satisfied the court retains a discretion whether or not to make a
declaration under s 286(1); it may in the exercise of its discretion
impose some other appropriate sentence. The discretion is to be
exercised in the light of all the relevant circumstances and in
accordance with the ordinary principles governing the sentencing
of offenders. A court will not ordinarily make a declaration in the
absence of a prior warning to the accused of the provisions of s
286.
[10] Notwithstanding the amelioratory effect of the discretion,
s 286 remains a far reaching provision which emphasises the
preventative aspect of punishment and is aimed at punishing an
offender for a persistent tendency to commit crime rather than for
the crime or crimes of which he or she stands convicted. It has
been described, not without justification, as a drastic and
exceptional punishment. See S v Masisi 1996 (1) SACR 147 (O) at

152d. However, in S v Niemand 2001(2) SACR 654 (CC) the
section was held to serve a useful sentencing purpose and,
subject to the reading-in of a proviso in s 65(4)(b)(iv) to ensure that
the sentence does not exceed 15 years, to be consistent with the
provisions of the Constitution.
[11] Counsel for the appellant conceded that she was unable to
contend that the trial Court had erred in finding that the appellant
committed crimes habitually or that the crimes were such that the
community should be protected from him. In my view, the
concession was properly made. The appellant is a qualified
panelbeater who was undoubtedly capable of earning an honest
living. Indeed, he did not contend the contrary; nor did he suggest
that he was compelled by necessity to commit his previous
offences. It appears from his police record that at least some of
these involved the theft of items of no great value, such as books,
clothing and music cassettes, usually from a family member or
friend. His typical modus operandi, however, was to steal a cheque
or cheque book, more often than not from a member of his family
or a friend, and then to use the cheques either to draw cash or to
make sundry purchases. Even when a fugitive from justice his
purchases with stolen cheques included items such as a watch, a

camera and clothing from retailers who could fairly be described as
up-market. The inference is overwhelming that he habitually
resorted to crime whenever the occasion presented itself or
whenever he found himself financially hard pressed or unable to
afford something he wanted. Admittedly, the amounts involved
were relatively modest. But cheque fraud is a serious and
prevalent offence. It harms not only its immediate victims but
causes prejudice to the community at large. Because of its
prevalence many retailers and other persons dealing with the
public have become reluctant to receive payment by cheque and
refuse to do so. The offences committed by the appellant are,
undoubtedly serious enough to require the community to be
protected from him.
[12] The thrust of counsel’s argument was that the trial Court
erred in not exercising its discretion to impose a sentence other
than a declaration in terms of s 286(1) of the Act. As has been said
time without measure, the power of a court of appeal to interfere
with the sentence imposed by the trial court is limited. It may do so
only when the exercise of the trial court’s discretion is vitiated by
misdirection or the sentence imposed is so inappropriate as to
indicate that the discretion was not properly exercised. In the

instant case the trial Court had regard to the personal
circumstances of the appellant and other considerations relevant
to sentence. It also, and quite correctly, took into account that the
appellant had previously been warned of the provisions of s 286,
that he had once again resorted to his old ways in the face of a
suspended sentence of four years hanging over his head and that
he had done so while a fugitive from justice and to purchase items
which included luxury goods. It is true that after serving a period of
just short of 16 months in prison the appellant had previously
succeeded in keeping out of trouble for some four years. This was
commendable. But his return to crime was not an isolated incident.
Had this been the case some significance could have been
attached to the four-year gap in his criminal activities. Instead, he
returned to his old ways with a vengeance, typically adopting the
same modus operandi as before. Between the period from about
May 1990 to October 1991 when the appellant was again
imprisoned, he committed theft on two occasions and fraud
involving a cheque on no fewer than 11 occasions. As I have said,
after escaping from prison he again adopted the same modus
operandi and was in due course convicted on one count of theft
and 14 counts of cheque fraud.  Counsel was unable to point to

any misdirection on the part of the trial Court and I can see no
reason for interfering with the sentence imposed.

[13] The appeal is accordingly dismissed.

D G SCOTT

JUDGE OF APEAL

CONCUR:
HEHER
JA
MLAMBO   AJA