About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2016
>>
[2016] ZASCA 51
|
|
Nndanduleni and Another v S (84/14) [2016] ZASCA 51 (1 April 2016)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 84/14
In
the matter between:
KHANGALE
MARSHALL NNDANDULENI
FIRST APPELLANT
MANYAGA
PAUL RATSHILUMELA
SECOND APPELLANT
and
THE
STATE
RESPONDENT
Neutral
Citation
:
Nndanduleni v The
State
(84/2014)
[2016] ZASCA 51
(1 April 2016)
Coram:
Leach, Zondi JJA
and Plasket AJA
Heard:
17 February 2016
Delivered:
1 April
2016
Summary:
Criminal Procedure
– court a quo granted leave to appeal against conviction on
some charges and refused leave on others –
appellant applying
for leave to appeal against conviction on those charges in respect of
which leave was refused – appellants
found guilty on the basis
of common purpose – sentence – cumulative effect.
ORDER
On
appeal from:
Limpopo
Local Division of the High Court, Thohoyandou, (Hetisani J sitting as
court of first instance):
1.
Leave to appeal is granted to the appellants in regard to the
convictions in
respect of which leave was refused in the court below.
1.1
The first appellant’s appeal against conviction on count 1 and
count 3 succeeds and
his convictions on those counts and the
sentences imposed pursuant thereto are set aside;
1.2
The first appellant’s appeal against conviction on count 2
(attempted murder), counts
4 and 5 (robbery with aggravating
circumstances) is dismissed.
1.3
The first appellant’s appeal against sentence on count 2 (9
years’ imprisonment)
and count 4 (12 years’ imprisonment)
is dismissed;
1.4
The appeal against sentence on count 5 succeeds and the sentence
imposed on that count is
set aside and replaced with the sentence of
15 years’ imprisonment.
1.5
It is ordered that the sentence on count 2 and 7 years of the12
years’ imprisonment
on count 4 are to run concurrently with the
sentence of 15 years’ imprisonment on count 5.
2.1
The second appellant’s appeal against conviction on count 3 and
count 5 succeeds and
his convictions on those counts and the
sentences imposed pursuant thereto are set aside.
2.2
The second appellant’s appeal against conviction on count 1
(murder), count 2 (attempted
murder) and count 4 (robbery with
aggravating circumstances) is dismissed.
2.3
The second appellant’s appeal against the sentences on counts
1, 2 and 4 succeeds
and those sentences are set aside and replaced
with the following:
2.3.1
Count 1: 20 years’ imprisonment;
2.3.2
Count 2: 10 years’ imprisonment;
2.3.3
Count 4: 15 years’ imprisonment.
2.4
It is ordered that the sentences on count 2 and 10 years of the 15
years’ imprisonment
on count 4 are to run concurrently with the
sentence imposed on count 1.
3.
Under
s 282
of the
Criminal Procedure Act 51 of 1977
, the above
sentences are antedated to 17 March 2009, being the date sentence was
imposed in the court a quo.
JUDGMENT
Zondi
JA (Leach JA and Plasket AJA concurring):
[1]
The two appellants were indicted in the Limpopo Local Division of the
High Court, Thohoyandou (Hetisani J) on five counts, namely
one count
of murder (count 1), two counts of attempted murder (counts 2 and 3)
and two counts of robbery with aggravating circumstances
as defined
by s 1 of the Criminal Procedure Act 51 of 1977 (counts 4 and 5)
arising from the incidents which occurred on 22 and
23 February 2007
at Tshapasha-Uncle Taki’s Eating House and Murengisa-Zwothe
Eating House respectively. In relation to counts
1 to 4 it was
alleged by the State that in committing the offences concerned, the
appellants acted in furtherance of a common purpose.
[2]
The first appellant pleaded not guilty to all of the charges and
raised an alibi defence. He alleged that after his arrest he
was
assaulted by the police at Mutale police station resulting in him
making a confession before a magistrate. In that event a
trial-within-a-trial was held to determine the admissibility of his
confession. Various police officers who were involved in his
arrest,
detention and interrogation and the magistrate who took down his
confession testified. At the conclusion of the trial-within-a-trial
the confession was ruled admissible whereafter the main trial
proceeded. He was convicted of all of the charges and was sentenced
as follows: 11 years’ imprisonment on count 1; 9 years’
imprisonment on count 2; 8 years’ imprisonment on count
3; 12
years’ imprisonment on count 4; and 22 years’
imprisonment on count 5. Sentences on counts 1 - 4 were ordered
to
run concurrently with the result that effectively the first appellant
would be required to serve 34 years’ imprisonment.
[3]
The second appellant also pleaded not guilty to all of the charges
and raised an alibi defence. He was convicted and sentenced
as
follows: 37 years’ imprisonment on count 1; 14 years’
imprisonment on count 2; 15 years’ imprisonment on count
3; 20
years’ imprisonment on count 4; and 17 years’
imprisonment on count 5. Sentences on counts 1 - 4 were ordered
to
run concurrently with the effect that the effective sentence was 54
years’ imprisonment.
[4]
Thereafter the appellants applied to the court a quo for leave to
appeal against conviction and sentences. The court a quo granted
them
leave to appeal against conviction on some of the charges and refused
them leave on others. It, however, granted each appellant
leave to
appeal against all the sentences imposed. In view of the fact that
the incidents giving rise to the charges concerned
were intertwined
and evidence interrelated, in order to facilitate the proper hearing
of the appeal and in the exercise of its
powers under s 17(1)(
b
)
of the
Superior Courts Act 10 of 2013
, this court invited the
appellants at the hearing of the appeal to apply for leave to appeal
against conviction on those charges
in respect of which leave was
refused. They accepted the invitation. The State did not object
thereto. It opposed the application
for leave only on the basis that
it had no reasonable prospect of success. The matter was then argued
on the basis that an application
for leave to appeal had been made
and the court permitted argument on grounds of appeal on which leave
was refused.
[1]
[5]
One further aspect requires mention. For reasons not stated in the
record the second appellant was not charged with count 5
(robbery
with aggravating circumstances) yet he was convicted and sentenced on
that charge. This was a serious misdirection on
the part of the court
a quo. The second appellant’s conviction and the sentence
imposed pursuant thereto are irregular and
must be set aside.
[6]
It is common cause that on 22 February 2007 at about 20h30 two
persons robbed Abel Takalani, an employee of Uncle Taki’s
Eating Place (the tavern) at gunpoint of R1000 in cash and a
Motorolla cellular phone. Takalani identified the two
appellants
as the persons who robbed him. According to Takalani’s
evidence, on the day in question, the two appellants came to the
tavern
and bought a beer from him, which they drank at the veranda.
The tavern was illuminated by an electric light and it was thus
possible
for him to identify them. He observed them for not less than
16 minutes while they were sitting at the veranda. Thereafter the
second appellant walked in again and bought some more beer. He
produced a R10 note for that purpose. As Takalani was busy preparing
change for him, the second appellant pulled out a firearm and pointed
it at him, demanding money from him. Takalani gave him all
the cash
he had in the till. At the same time, the first appellant who was
also armed with a firearm joined the second appellant.
The first
appellant pointed a firearm at the two customers in the tavern and
walked them to the storeroom. Takalani was similarly
pushed into the
storeroom. There the second appellant demanded more money from him.
Takalani thereupon opened the safe and gave
him all the money that
was there. The two appellants locked Takalani and the two customers
inside the storeroom and fled the scene.
[7]
It is further common cause that in the early hours of 23 February
2007, three occurrences took place at Murengisa-Zwothe Eating
Place
in Mutale. Two armed suspects arrived there, one of whom fired a shot
at the vehicle in which Oscar Tshikhomo and his two
friends were
sitting. The keys of the car were demanded from him before he was
shot. According to Tshikhomo the same suspect who
shot him proceeded
to the bar lounge and fired shots. According to Reckson Tshivhase,
who observed the occurrences at the bottle
store while sitting under
a Marula tree, the person who fired shots at the bar lounge was the
second appellant. Tshivhase testified
that Rudzani Mphephu (the
deceased) and one Lutendo were playing cards at the veranda of the
bar lounge when the two appellants
arrived. The second appellant
asked the deceased to come to him. When the deceased refused, the
second appellant threatened to
kill him. The second appellant fired
shots at the wall. The deceased remonstrated with him and, addressing
him by his nickname,
Seven, said: ‘Seven, do not kill other
people’. The second appellant however fired two shots at the
deceased and killed
him. After the shooting the second appellant
approached Tshivhase and told him to leave. According to Tshivhase
the first appellant,
who was also armed with a firearm, was inside
the bar lounge when the shooting incident at the veranda took place.
Tshivhase’s
evidence regarding the occurrences at the veranda
of the bar lounge is corroborated by that of Lutendo. Lutendo had
been sitting
with the deceased when the second appellant terrorised
them. He knew the second appellant as Seven and had known him for two
months
before the shooting incident.
[8]
The third occurrence happened inside the bar lounge. Mr Phusuphusu
Kwinda, the bar attendant testified that when he heard gunfire,
he
hurried to lock the main entrance security door. As he did so, the
second appellant unexpectedly emerged and pointed a firearm
at him.
Kwinda ran back into the building and locked himself and his wife in
one of the rooms while the appellants helped themselves
to cash and
liquor. When he later checked the till, he discovered that R1000 in
cash was missing.
[9]
The appellants were arrested on the strength of the information
furnished by a police informer some two weeks after the offences
had
been committed. The first appellant was arrested by a team of
detectives including Inspector Netshaulu, the investigating officer,
Inspector Nemukula and Netshiavha on 12 March 2007 at Paradise Lounge
in Thohoyandou. According to Netshaulu the first appellant
was warned
at the time of his arrest of the allegation against him and informed
of his rights in terms of s 35 of the Constitution.
After his arrest
he travelled in a police vehicle with Nemukula and Netshiavha to
Mutale police station where he was handed over
to Captain
Tshivhulungi for interrogation. During the interview, the first
appellant indicated to Tshivhulungi that he was involved
in the
commission of the offences concerned and that he wished to make a
confession. Netshaulu arranged for the first appellant
to be taken
for a confession to the magistrate, Mr Rambuda. Inspector
Netshitongwe who was unconnected with the investigation of
the case,
took him to Mr Rambuda on 13 March 2007 at about 07h00. After
introducing the first appellant to Mr Rambuda, Netshitongwe
left him
with Mr Rambuda and waited for him outside Mr Rambuda’s office.
Ms Siala interpreted for the first appellant from
Venda to English
and vice versa when a statement was taken from him. In that statement
the first appellant implicated the second
appellant. He alleged that
a plan to rob Uncle Taki’s Eating Place on 22 February 2007 and
Murengisa-Zwothe Eating Place
on 23 February 2007 was the idea of the
second appellant and a certain Ndivhuwo. During the robbery at Uncle
Taki’s Eating
House, he stood guard outside the premises while
the second appellant robbed the place of cash. Some few minutes later
the second
appellant emerged from the building with money. Ndivhuwo
joined them at the gate and they fled the scene.
[10]
According to the first appellant’s statement, after the
commission of the first robbery, at the suggestion of Ndivhuwo,
he
and the second appellant went to rob Murengisa-Zwothe Eating Place.
At the latter place the second appellant pulled out a firearm
and
fired a shot on the wall. The second appellant had a verbal
altercation with one of the customers sitting at the veranda. He
shot
him execution style. Thereafter the three of them got inside the bar
lounge and helped themselves to liquor and cash. The
second appellant
gave the first appellant R300 in cash for his participation. As set
out at the outset, the confession was ruled
admissible.
[11]
Counsel for the appellants submitted that the court a quo erred in
ruling that the first appellant’s confession was admissible
in
circumstances where it was clear from paragraph 5 of the standard
form of the confession that the first appellant had wanted
to consult
with an attorney before making a statement. That request, the
argument continued, was not honoured. He contended that
the
magistrate should have afforded the first appellant an opportunity to
consult with his legal representative before taking down
his
confession and such failure, he argued, violated the first
appellant’s constitutional right and in consequence rendered
his confession inadmissible. In support of this proposition he relied
on
S v Soci
1998
(2) SACR 275
(E);
S
v Marx & another
1996
(2) SACR 140
(W);
Director
of Public Prosecutions, Transvaal v Viljoen
[2004]
ZASCA 145
;
2005 (1) SACR 505
;
R
v Wong Kam-Ming
[1979]
1 All ER 939
;
S v De
Vries
1989 (1) SA
228
(A);
R v Dunga
1934 AD 223
at 226.
[12]
I disagree. In the standard form which served as Exhibit A in the
court a quo, Mr Rambuda recorded that the first appellant
was brought
before him by Inspector Netshitongwe on 13 March 2007. Ms Siala
interpreted for the first appellant from Venda to English
and vice
versa. The first appellant was inter alia asked the following
questions:
‘
3.
Are you aware that you have the right to be represented by a legal
representative of
your own choice or one paid at state expense at the
time of making a statement?
Answer
Yes
4.
Do you know that you are entitled to consult with an attorney before
deciding to make
a statement?
Answer
Yes
5.
Do you now wish to make a statement on your own free will or would
you like to be afforded
an opportunity to go and engage or consult a
legal representative before making a statement?
Answer
Yes
6.
Do you want to make a statement despite the fact that anything you
say might
be used against you at a subsequent trial?
Answer
Yes.
’
[13]
In my view, the court a quo’s ruling that the confession was
admissible, was correct. The contents of paragraph 5 should
not be
read in isolation. They should be read together with the contents of
paragraphs 3, 4 and 6 of the standard form and in light
of Mr
Rambuda’s evidence. Mr Rambuda denied that the first appellant
indicated to him that he wanted to first consult with
his legal
representative before making a statement. On a proper reading of the
relevant paragraphs in the standard form it is clear
that the first
appellant was made aware that he was entitled to consult with an
attorney before deciding to make a statement. He
elected to do so on
his own without the assistance of a legal representative. Thus
understood, there is no basis for the contention
that the admission
into evidence of the first appellant’s confession violated his
constitutional right.
[14]
At the conclusion of the main trial the appellants were found guilty
on the basis that, in committing the offences concerned,
they had
acted in common purpose. The question that arises is whether this
finding was correct. C R Snyman
Criminal Law
6 ed (2014) at
257 points out that:
‘
The
essence of the [common purpose] doctrine is that if two or more
people, having a common purpose to commit a crime, act together
in
order to achieve that purpose, then the conduct of each of them in
the execution of that purpose is imputed to the others.’
It
can be inferred from Kwinda’s evidence that the appellants’
common purpose was to commit robbery at Murengisa-Zwothe
Eating
Place. In this regard Kwinda, a bar attendant testified as follows:
‘
Yes
I heard them talking while inside going from one place to the other
saying that their purpose to be there was not to kill and
therefore
they should just take liquor and go away.’
[15]
The question is whether the first appellant should be held liable for
the killing by the second appellant of Rudzani. In my
view, he should
not. The court a quo erred in finding the first appellant guilty of
murder. The shooting and killing by the second
appellant of Rudzani,
who was sitting and playing cards at the veranda and with whom the
second appellant had a verbal altercation,
is not conduct which may
be imputed to the first appellant. In my view, it differs from what
he and the second appellant had envisaged
in their common purpose. A
finding cannot be inferred from the evidence and especially from the
first appellant’s confession
that the first appellant
associated himself in the murder of Rudzani,
[2]
or
that he knew that the second appellant would kill someone, or foresaw
the possibility that someone might be killed and reconciled
himself
to that possibility. Moreover, according to Tshivhase’s
evidence the first appellant was inside the bar lounge when
the
second appellant shot Rudzani at the veranda. In the circumstances
the first appellant’s appeal against conviction on
count 1
should succeed.
[16]
As far as the second appellant is concerned, he was correctly
convicted of murder. The evidence of various witnesses placed
him at
the scene. He shot the deceased execution style. He had a direct
intention to kill him.
[17]
As regards the conviction of the appellants on count 2 (attempted
murder of Tshikomo), the first appellant in his confession
exculpated
himself. He appeared to suggest in his confession that a third
suspect, Ndivhuwo, may have been responsible for the
shooting of
Tshikomo because according to him when he (the first appellant) and
the second appellant proceeded to the bar lounge,
Ndivhuwo remained
behind at Tshikomo’s vehicle. This version is inconsistent with
Tshikomo’s evidence, which was that
a suspect armed with a
firearm confronted him and demanded the car keys from him before
shooting him at point-blank range. Tshikomo
further testified that
the very same person moved ‘towards the Bottle Store’s
gate. It was there . . . where he started
shooting at the other
person.’ According to Tshivhase, the person who fired the shots
at the veranda, was the second appellant
– not an unknown
person.
[18]
To the extent that there is a discrepancy between Tshikomo’s
evidence and that of the first appellant regarding the identity
of
the person who shot him, I accept Tshikomo’s evidence and
reject that of the first appellant. Tshikomo was a truthful
witness.
Unlike the first appellant who may have had a motive to minimise his
role and that of the second appellant in the commission
of the
offences, Tshikomo did not have such motive. He testified about the
events as they unfolded around him. Tshikomo’s
evidence that
the person who shot him was the same person who fired shots at the
veranda, is also consistent with the evidence
of Tshivhase. Tshivhase
identified the second appellant as the person who fired shots at the
veranda. The conclusion is therefore
ineluctable that the person who
shot Tshikomo is the second appellant and he did so with an intention
to kill him. The first appellant’s
suggestion that Ndivhuwo was
responsible for the shooting, is rejected.
[19]
Tshikomo was shot at point-blank range on the right hip and the
bullet got lodged on the pelvic wall. It can be inferred from
this
fact that the second appellant had the requisite intent to kill him.
He was therefore correctly convicted of attempted murder
of
Tshikomo.
[20]
The question is whether the conduct of the second appellant can be
imputed to the first appellant. In my view, there exist
sufficient
objective facts from which an inference for the motive for the
shooting of Tshikomo can be drawn. The appellants needed
a get-away
vehicle to use after the robbery. Tshikomo’s vehicle happened
to be at the scene. When the robbery of the bar
lounge was carried
out it would seem, based on Tshikomo’s evidence, the second
appellant was already in possession of Tshikomo’s
car keys.
This is so, because after the robbery of the bar lounge, both the
appellants ran to Tshikomo’s vehicle to drive
away from the
scene. When the vehicle would not start, they left it and fled the
scene on foot. The only reasonable inference is
that the first
appellant must have foreseen, and in fact did foresee, that they may
have to get a vehicle to enable them to get
away from the scene, and
it was likely that they may have to use force, including a weapon, in
the process. Tshikomo’s evidence
does provide the motive for
the shooting. He testified as follows: ‘What happened is that
he opened the door of the driver’s
seat where I was seated, . .
. . Having opened the door as such . . . it was then indicated that
he wanted the key and he then
shot me . . . on my waist yes’.
The shooting of Tshikomo by the second appellant was conduct which
was foreseen as a possibility
by the first appellant. In my view, the
State established that the first appellant was guilty of attempted
murder on the basis
of the furtherance of a common purpose with the
second appellant.
[21]
With regard to the charge of attempted murder of Isaac Ndou (count
3), I am not satisfied that the evidence adduced was sufficient
to
sustain a conviction on that charge. Prior to the shooting of
Tshikomo someone ─ probably the second appellant ─
fired
a shot through the back window of Tshikomo’s car while Ndou was
lying on the back seat. It is not clear from
the evidence
whether the second appellant had aimed at Ndou or for that matter,
whether he was aware of his presence in the vehicle
when he fired a
shot at the vehicle. The appellants were entitled to the benefit of
doubt and they should have been acquitted on
count 3.
[22]
As regards the conviction on count 4 (armed robbery at
Murengisa-Zwothe) the first appellant was correctly convicted.
Besides
his own confession which formed the basis of his conviction,
there is also the evidence of Tshivhase which placed him at the
scene.
In relation to the second appellant he is placed at the scene
by Tshivase and Lutendo. Lutendo had seen him before. These two
witnesses
had sufficient opportunity to observe the second appellant.
The place was illuminated with an electric light. The witnesses were
found by the court a quo to have been truthful and reliable. Their
identification evidence was reliable. The appellants’
conviction on count 4 is accordingly confirmed.
[23]
As far as the first appellant’s conviction on count 5 is
concerned, I have no doubt on my mind that he was properly convicted.
His conviction was based not only on his own confession which was
ruled admissible by the court a quo, but also on the identification
evidence of Takalani, the bar attendant at Uncle Taki’s Eating
Place, from whom the appellants bought some beer. Though they
were
not his regular customers, he had sufficient time to observe them
while they were sitting at the veranda. They sat there for
approximately 16 minutes before the second appellant came in again to
buy some more beer. The area was illuminated with an electric
light.
Takalani’s identification evidence was therefore reliable and
his reliability as a witness, was unquestionable. It
is unfortunate
that the second appellant was not charged on count 5 as the evidence
clearly demonstrated that both appellants in
committing robbery acted
in furtherance of a common purpose. In relation to the first
appellant, the conviction is accordingly
confirmed but, as I have
already mentioned, in regards to the second appellant’s appeal
on this count must succeed.
[24]
To sum up, as regards the murder charge (count 1), the court a quo
erred in convicting the first appellant on this count. He
should have
been acquitted. It follows therefore that the sentence imposed
pursuant thereto should be set aside. The second appellant
was
correctly convicted. With regards to the conviction on the
charge of attempted murder (count 2) the appellants were correctly
convicted.
[25]
As regards the conviction on the charge of attempted murder (count 3)
the court a quo erred in convicting the appellants. The
evidence
adduced was insufficient to sustain the conviction on that charge and
the appellants should have been entitled to the
benefit of the doubt
and should have been acquitted. The sentences imposed on this count
should be set aside. As far as the conviction
on a charge of robbery
with aggravating circumstances is concerned, (count 4), the
appellants were properly convicted. As regards
the first appellant
the evidence adduced in the form of his confession and by the
eyewitnesses sufficiently established the conviction.
With regard to
the second appellant the evidence of the eyewitnesses placed him at
the scene and his alibi defence was correctly
rejected as being not
reasonably possibly true.
[26]
In relation to the conviction on the charge of robbery with
aggravating circumstances (count 5), the first appellant was
convicted
on the basis of his confession and the evidence of
Takalani, the eyewitness. He was correctly convicted. As regards the
second
appellant, the court a quo erred in convicting him on the
charge to which he was not asked to plead. This constituted a gross
misdirection
on the part of the court a quo. Therefore the sentence
imposed by the court a quo on the second appellant on this count,
should
be set aside.
[27]
I turn to consider the appellants’ appeal against the
sentences. In the light of the conclusion I have reached regarding
the first appellant’s conviction on counts 1 and 3 it follows
that the sentences imposed by the court a quo on those counts
should
be set aside. It therefore follows that the sentences which fall to
be considered in this appeal are the following: 9 years’
imprisonment on count 2; 12 years’ imprisonment on count 4; and
22 years’ imprisonment on count 5. It is not clear
from the
record whether the appellants were sentenced on the basis that the
provisions of the
Criminal Law Amendment Act 105 of 1997
were
applicable to the charges concerned. There is no reference in the
indictment to the provisions of that Act, nor is there any
indication
in the record that the appellants were forewarned that its provisions
would apply upon their conviction. In the result
in considering the
appeal against sentences, I would do so on the basis that the
sentences imposed were not subject to the provisions
of that Act,
which means that the court a quo had a discretion to impose any
sentence it considered appropriate. The sentences
were attacked on
the grounds that they were shockingly harsh and disproportionate to
the offences which the appellants were charged
with and convicted of.
[28]
The imposition of sentence is a matter falling pre-eminently within
the judicial discretion of the trial court. The test for
interference
by an appeal court is whether the sentence imposed by the trial court
is vitiated by irregularity or misdirection
or is disturbingly
inappropriate.
[3]
The
question is not whether the sentence was right or wrong, but whether
the trial court in imposing the sentence exercised its
discretion
properly and judicially. As was correctly pointed out by this court
in
S
v Pillay
1977
(4) SA 531
(A) at 535E-F:
‘
As
the essential inquiry in an appeal against sentence, however, is not
whether the sentence was right or wrong, but whether the
Court in
imposing it exercised its discretion properly and judicially, a mere
misdirection is not by itself sufficient to entitle
the Appeal Court
to interfere with the sentence; it must be of such a nature, degree,
or seriousness that it shows, directly or
inferentially, that the
Court did not exercise its discretion at all or exercised it
improperly or unreasonably.’
[29]
In sentencing the first appellant the court a quo took into account
his personal circumstances, namely that he was 23 years
old, single
and had one previous conviction of assault with intent to do grievous
bodily harm. It also took account of the fact
that the offences, of
which he was convicted, were very serious and therefore called for
severe punishment. With regard to the
sentences of 9 years’
imprisonment and 12 years’ imprisonment imposed on counts 2 and
4 respectively, I cannot find
any misdirection on the part of the
court a quo. Firearms were used in the commission of the offences
concerned. The offences were
well planned and specific establishments
were targeted. But be that as it may, it is the sentence of 22 years’
imprisonment
that was imposed on count 5 which raises concern. It is
not clear from the record why a sentence of 22 years’
imprisonment
was imposed for the robbery committed on 22 February
2007, yet a sentence of 12 years’ imprisonment was imposed for
the robbery
that occurred on 23 February 2007 having regard to their
substantial similarity. In my view, the court a quo misdirected
itself
in that regard. A sentence of 15 years’ imprisonment on
each count of robbery should have been imposed. But since there is
no
appeal by the State against the sentence of 12 years’
imprisonment on count 4, there is no reason to interfere with it.
In
the circumstances, the sentence of 22 years’ imprisonment on
count 5 should be set aside and be replaced with one of 15
years’
imprisonment. The cumulative effect of these sentences is 36 years’
imprisonment, but as reprehensible as the
offences may have been,
such a sentence is far too severe. Consequently, I would order that
the sentences on count 2 and seven
years of the 12 years’
imprisonment imposed on count 4 should run concurrently with the
sentence on count 5. What this means
is that effectively the first
appellant will serve 20 years’ imprisonment.
[30]
As regards the second appellant the only sentences which still merit
consideration are those that were imposed on count 1 (37
years’
imprisonment); count 2 (14 years’ imprisonment); and count 4
(20 years’ imprisonment).
[31]
The second appellant was 32 years old, single with two dependants. He
was self-employed. He had one unrelated previous conviction.
Although
the offences of which he was convicted are serious, I do not think
the sentences imposed pursuant thereto were appropriate.
Individually
and cumulatively, the sentences are too severe. There does not appear
that the court a quo considered that the offences
were interrelated.
This shows that the court a quo failed to exercise its discretion
properly, which therefore justifies this court’s
interference
with the sentence. I would reduce the sentences on count 1 to 20
years’ imprisonment; on count 2 to 10 years’
imprisonment
and on count 4 to 15 years’ imprisonment. To reduce their
cumulative effect I would order that sentence on count
2 and 10 of
the 15 years’ imprisonment on count 4 should run concurrently,
with the sentence on count 1. Accordingly, the
second appellant will
serve effectively 25 years’ imprisonment.
[32]
As mentioned above, this court allowed the appellants to apply for
leave to appeal against the convictions in respect of which
the court
below had refused leave to appeal. The matter was then argued before
us as if such leave had been granted, with counsel
addressing the
merits of all the convictions. In the light of this it is somewhat
artificial to now refuse leave to appeal in respect
of those
convictions which lack merit. From a practical point of view it is
best to grant leave to appeal in respect of those convictions.
[33]
In the result I make the following order:
1.
Leave to appeal is granted to the appellants in regard to the
convictions in
respect of which leave was refused in the court below.
1.1
The first appellant’s appeal against conviction on count 1 and
count 3 succeeds and
his convictions on those counts and the
sentences imposed pursuant thereto are set aside;
1.2
The first appellant’s appeal against conviction on count 2
(attempted murder), counts
4 and 5 (robbery with aggravating
circumstances) is dismissed.
1.3
The first appellant’s appeal against sentence on count 2 (9
years’ imprisonment)
and count 4 (12 years’ imprisonment)
is dismissed;
1.4
The appeal against sentence on count 5 succeeds and the sentence
imposed on that count is
set aside and replaced with the sentence of
15 years’ imprisonment.
1.5
It is ordered that the sentence on count 2 and 7 years of the12
years’ imprisonment
on count 4 are to run concurrently with the
sentence of 15 years’ imprisonment on count 5.
2.1
The second appellant’s appeal against conviction on count 3 and
count 5 succeeds and
his convictions on those counts and the
sentences imposed pursuant thereto are set aside.
2.2
The second appellant’s appeal against conviction on count 1
(murder), count 2 (attempted
murder) and count 4 (robbery with
aggravating circumstances) is dismissed.
2.3
The second appellant’s appeal against the sentences on counts
1, 2 and 4 succeeds
and those sentences are set aside and replaced
with the following:
2.3.1
Count 1: 20 years’ imprisonment;
2.3.2
Count 2: 10 years’ imprisonment;
2.3.3
Count 4: 15 years’ imprisonment.
2.4
It is ordered that the sentences on count 2 and 10 years of the 15
years’ imprisonment
on count 4 are to run concurrently with the
sentence imposed on count 1.
3.
Under
s 282
of the
Criminal Procedure Act 51 of 1977
, the above
sentences are antedated to 17 March 2009, being the date sentence was
imposed in the court a quo.
_________________
D H
Zondi
Judge
of Appeal
Appearances
For
the First and Second Appellant:
L M Manzini (Attorney)
Instructed by:
Thohoyandou Justice
Centre, Thohoyandou
Bloemfontein
Justice Centre, Bloemfontein
For
the Respondent:
A Madzhuta
Instructed by:
The Director of Public Prosecutions,
Thohoyandou
The Director of Public Prosecutions,
Bloemfontein
[1]
Harlech-Jones Treasure Architects
CC and Others v University of Fort Hare
2002
(5) SA 32
(E) para 56;
S v
Sefatsa & others
[1987]
ZASCA 150
;
1988 (1) SA 868
(A) at 877A-E.
[2]
S v Thebus & another
[2003]
ZASCA 12
;
2003 (2) SACR 319
(CC) at 341 para 34.
[3]
Coetzee v S
[2009]
ZASCA 134
;
[2010] 2 All SA 1
(SCA) para 13.