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 96
|
|
S v Motloung (182/15) [2016] ZASCA 96; 2016 (2) SACR 243 (SCA) (2 June 2016)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 182/15
DATE:
2 JUNE 2016
Reportable
In
the matter between:
THE
STATE
........................................................................................................................
APPELLANT
And
OUPA
MOTLOUNG
......................................................................................................
RESPONDENT
Neutral
Citation:
S v Motloung
(182/15)
[2016] ZASCA 96
(2 June 2016)
Coram:
Cachalia, Majiedt JJA and Victor AJA
Heard:
9 May 2016
Delivered:
2 June 2016
Summary:
Murder – second offender committing murder whilst on
parole – sentenced to 14 years of imprisonment of which six
years
suspended for five years – sentence startlingly
inappropriate having regard to the degree of violence involved in the
current
and previous offences.
Sentence
– s 280(2) Criminal Procedure Act 51 of 1977 (CPA) - court
cannot order the Parole Board to take into account the
overall impact
of the re-imposition of unexpired portion of an earlier sentence when
deciding the current sentence.
Firearms
Control Act 60 of 2000
– has not impliedly repealed
s 51(2)
of
the
Criminal Law Amendment Act 105 of 1997
− National Director
of Public Prosecutions can elect whether to prosecute under the
Firearms Control Act or
the
Criminal Law Amendment Act 105 of 1997
,
or both.
Costs
–
s 316B(3)
of CPA − such an order requires both parties
to argue the issue − no costs incurred where respondent
represented by
Legal Aid Board.
ORDER
On
appeal from:
Gauteng Local Division of
the High Court, Johannesburg (Spilg J sitting as court of first
instance).
1.
The appeal against the sentence on the
murder conviction on count 1 is upheld.
2.
The sentence in respect of the murder
charge on count 1 is set aside and a sentence of 15 years is imposed,
backdated to 9 February
2012.
3.
The order in respect of the concurrent
running of the sentence on count 1 and in respect of the
implementation of parole or any
other reduction in sentence is set
aside.
JUDGMENT
Victor
AJA (Cachalia and Majiedt JJA concurring)
[1]
The State appeals against a sentence imposed on the respondent, Mr
Oupa Motloung (Motloung), by the Gauteng Local Division,
Johannesburg
(Spilg J). The issues for determination are the sentence imposed for
murder, the order directing the parole board
how to deal with the
unexpired portion of a sentence in respect of a previous conviction,
the implied repeal of the sentencing
portion for unlawful possession
of firearms of the
Criminal Law Amendment Act 105 of 1997
by the
Firearms Control Act 60 of 2000
, and the costs order made in criminal
proceedings. The appeal is with the leave of this court.
[2]
Motloung was convicted of murder in terms of
s 51
(2) of the
Criminal
Law Amendment Act and
for the unlawful possession of a semi-automatic
firearm and ammunition. He was sentenced to 14 years’
imprisonment for the
murder, six years of which was suspended for a
period of 5 years. In respect of the unlawful possession of a firearm
and ammunition,
taken together for the purpose of a sentence of 6
years’ imprisonment, half of which was suspended for a period
of 5 years,
was imposed. These sentences were ordered to run
concurrently. He was thus sentenced to an effective period of 8
years. In addition,
the court a quo ordered that in respect of the
sentence on the murder charge ‘8 years… are to run
concurrently with
the existing sentence you are serving in relation
to your conviction which has already been mentioned and that any
parole that
may be implemented or any other reduction in relation to
the period to be served in relation to that conviction is to apply to
this as well’. As at date of this appeal Motloung was out on
parole for both the current and previous convictions.
[3]
The convictions arose in the following circumstances. An argument and
physical altercation had ensued between Motloung and the
deceased, Mr
Sandile Caleb Madalane, at a tavern in Thokoza township. The
disagreement concerned in the main the deceased’s
romantic
advances towards a companion of Motloung, Ms Alinah Mokoena. It was
not in dispute that the deceased was the aggressor
in both the verbal
and physical altercations. Afterwards Motloung went home and returned
with a firearm. When the deceased appeared
to be attempting to run
Motloung over in the street outside the tavern with his motor
vehicle, Motloung fired a shot at the deceased
causing him to fall
out of the vehicle. Motloung fired several further shots into the
deceased as the latter lay on the ground,
wounding him fatally.
[4]
At the time of the murder Motloung was on parole in respect of an
armed robbery conviction for which he had been sentenced to
10 years’
imprisonment, as well as several other convictions in terms of the
Arms and Ammunition Act 75 of 1969 for the unauthorized
possession of
firearms and ammunition, including an AK 47, for which he was
sentenced to 10 and two years respectively and which
were to run
concurrently with a sentence on armed robbery. He was also declared
unfit to possess a firearm in accordance with s
12(2) of that Act. He
was sentenced on 2 November 1998, when he was 21 years of age. He was
released on parole on 2 February 2008,
under parole conditions which,
inter alia, prohibited him from being outside his home except for
work, which at that time was to
manage a tuck shop owned by his
brother.
Interference
with a sentence on appeal
[5]
The State submitted that the sentence of eight years for murder was
so inappropriate that it induced a sense of shock.
[6]
The law is settled on when an appellate court may interfere with a
sentence imposed by a lower court. It can only do so when
there is a
material misdirection by the sentencing court. In
S v Malgas
[2001] ZASCA 30
;
2001 (1) SACR 469
(SCA) Marais JA, dealing with the
minimum sentence legislation, stated that when considering sentence,
the emphasis must shift
to the objective seriousness of the type of
crime and the public's need for effective sanction against it.
[7]
In
Malgas
para 12, Marais JA provided guidance as to when an
appellate court can interfere with a sentence as follows:
‘
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court.' But
an appellate court may interfere with the exercise by the
sentencing
court of its discretion, even in the absence of a material
misdirection, when the disparity between the sentence imposed
by the
trial court and the sentence which the appellate court would have
imposed, had it been the trial court, is 'so marked that
it can
properly be described as shocking, startling or disturbingly
inappropriate'.
[8]
An appellate court can also interfere when there is no misdirection
but the sentence is disproportionate to the crime. Marais
JA stated
the test in
S v Sadler
[2000] ZASCA 13
;
2000 (1) SACR 331
(SCA) para 10:
'[I]mportant
to emphasise that for interference to be justified, it is not enough
to conclude that one's own choice of penalty would
have been an
appropriate penalty. Something more is required; one must conclude
that one's own choice of penalty is the appropriate
penalty and that
the penalty chosen by the trial court is not. Sentencing
appropriately is one of the more difficult tasks which
faces courts
and it is not surprising that honest differences of opinion will
frequently exist. However, the hierarchical structure
of our courts
is such that where such differences exist it is the view of the
appellate Court which must prevail.'
See
also S v C
wele & another
[2012] ZASCA 155
;
2
013 (1)
SACR 478
(SCA) para 33, where Mpati P stated:
‘
It
is in my view unnecessary to consider the question whether the trial
court misdirected itself when it considered the existence
or
otherwise of substantial and compelling circumstances. This is
because I consider the disparity between the sentence imposed
by the
trial court and that which this court would have imposed, had it been
the trial court, to be so marked that it can properly
be described as
disturbingly inappropriate.’
[9]
The court a quo took into account the traditional factors in weighing
up the sentence; the crime, the offender and society and
also
included the purpose of sentencing. It weighed these with Motloung’s
moral blameworthiness. The court a quo also found
that the purpose of
Motloung fetching the firearm was to protect himself from the
deceased. In finding substantial and compelling
circumstances it
found that the deceased persistently humiliated, degraded and
provoked Motloung and this reduced his moral blameworthiness
and thus
justified not imposing the minimum sentence.
Misdirections
of the court a quo
[10]
There are several misdirections in the judgment of the court a quo.
First, the court drew an adverse conclusion from the fact
that the
deceased was not at home with his family, but at a tavern in the
early hours of the morning.
Secondly,
the learned Judge incorrectly found that Motloung had ‘snapped’
when the deceased appeared to be trying to
run him down in the
street.
[11]
The sentence is startlingly inappropriate, regard being had to the
following serious aggravating circumstances: Motloung went
to fetch a
firearm when the fight was over. He asked a friend to hold it. A
short while later he demanded the firearm back despite
his friend
trying to dissuade him. And he eventually used the firearm in
shooting the deceased. In addition, a considerable period
of time had
elapsed between the earlier altercations and the incident in the
street, during which time Motloung could have toned
down his
justified anger at the humiliating treatment afforded him by the
deceased.
[12]
As stated, Motloung was still on parole arising out of a previous
conviction for robbery involving the unlawful possession
of pistols
and an AK 47 and ammunition. Motloung served his parole under house
arrest except when at work. He breached his parole
conditions by
going to the tavern and committed the murder within the precinct of
the tavern where he was not supposed to be. The
undisputed limited
provocation by the deceased could never have justified Motloung
brutally executing the deceased who was defenseless
on the ground. He
acted with a callous and cruel indifference to what he had done. The
sentence reflects an overemphasis of Motloung’s
mitigating
personal circumstances at the expense of taking into account the
seriousness of the murder and the manner in which the
offence was
committed. Motloung's age at the time of his previous conviction was
correctly considered as a factor, but the court
a quo placed too
great an emphasis on this when it was clear from the report of Mrs
Wolmarans, the social worker, that Motloung
did not serve sufficient
time in prison as he had not reached the requisite level of
rehabilitation for his first crime at the
time of his release.
[13]
The sentence does not strike the correct balance between the relevant
factors. Interference on appeal is therefore warranted.
A proper
balancing of the relevant aggravating and mitigating circumstances
would justify a sentence of 15 years’ imprisonment.
Is
the direction to the parole board permissible?
[14]
The court a quo’s direction to the parole board suggested that
any parole provision for imprisonment for the previous
conviction
should coincide with parole for the current offence. This was an
interference with the parole board’s powers.
[15]
The court a quo furthermore considered it appropriate to deal with
the effect of the re-imposition of the unexpired portion
of the
previous sentence. The court a quo, in explaining its instruction to
the Parole Board, postulated that absent the murder
conviction the
incomplete period of imprisonment would not have had to be served.
The court a quo found that, because of certain
common intrinsic
features and since the previous and current offences are causally
connected to each other, this should result
in parole being granted
simultaneously for the two offences.
[16]
The court a quo relied for its direction on s 280(1) of the CPA which
provides that ‘when a person is at any trial convicted
of two
or more offences or when a person under sentence or undergoing
sentence is convicted of another offence, the court may sentence
him
to such several punishments for such offences or, as the case may be,
to the punishment for such other offence, as the court
is competent
to impose’. Section 280(2) empowers the court to order
sentences to run concurrently. Based on these provisions
the court a
quo found that if a parole board failed to recognize that the present
sentences run concurrently with the existing
one this would amount to
an interference with the exercise of the court's powers. The converse
is true: imposing a duty on the
parole board to implement the court’s
direction on concurrency of parole would effectively be an intrusion
on the parole
board’s realm of functioning. A court imposing a
sentence for one set of crimes cannot impose directions on the parole
board
where the complexities of the concurrence of sentences and
cumulative effect of the other multiple sets of crimes are not before
the sentencing court. The difficulties that arise are self-evident.
The problem becomes even more stark when a court seeks to assess
the
complex features arising from a breach of the parole conditions of
the previous offence and postulates how the unexpired portion
of the
sentence must be dealt with by the court to which Motloung must
return regarding the first offence.
[17]
In
S v Mhlakaza & another
[1997] ZASCA 7
;
1997 (1) SACR
515
(SCA) Harms JA cautioned as follows:
‘
The
lack of control of courts over the minimum sentence to be served can
lead to tension between the Judiciary and the Executive
because the
executive action may be interpreted as an infringement of the
independence of the Judiciary (cf Blom-Cooper & Morris
The
Penalty for Murder: A Myth Exploded [1996] Crim LR at 707, 716).
There are also other tensions, such as between sentencing
objectives
and public resources (see Walker & Padfield op cit at 378). This
question relating to the judiciary's true function
in this regard is
probably as old as civilisation (Windlesham 'Life Sentences: Law,
Practice and Release Decisions, 1989-93' [1993]
Crim LR at 644). Our
country is not unique. Nevertheless, sentencing jurisdiction is
statutory and courts are bound to limit themselves
to performing
their duties within the scope of that jurisdiction. Apart from the
fact that courts are not entitled to prescribe
to the executive
branch of government as to how and how long convicted persons should
be detained (see the clear exposition by
Kriegler J in S v Nkosi (1),
S v Nkosi (2), S v Mchunu
1984 (4) SA 94
(T)) courts should also
refrain from attempts, overtly or covertly, to usurp the functions of
the executive by imposing sentences
that would otherwise have been
inappropriate.’
[18]
These aspects were again emphasized in
S v Stander
[2011]
ZASCA 211
;
2012 (1) SACR 537
(SCA). In
S v Matlala
2003 (1)
SACR 80
(SCA) Howie JA stated:
‘
Unless
there is a particular purpose in having regard to the pre-parole
portion of an imprisonment sentence (as, for example, in
S v Bull and
Another; S v Chavulla & others
2001 (2) SACR 681
(SCA)) the Court
must disregard what might or might not be decided by the
administrative authorities as to parole. The court has
no control
over that. S v S
1987 (2) SA 307
(A) at 313H; S v Mhlakaza and
another
1997 (1) SACR 515
(SCA) at 521d - h. In the latter passage
there is the important Statement that the function of the sentencing
court is to determine
the maximum term of imprisonment the convicted
person may serve. In other words, the court imposes what it intends
should be served
and it imposes that on an assessment of all the
relevant factors before it. It does not grade the duration of its
sentences by
reference to their conceivable pre-parole components but
by reference to the fixed and finite maximum terms it considers
appropriate,
without any regard to possible parole.’
Did
the
Firearms Control Act of 2000
implicitly amend the
Criminal Law
Amendment Act 105 of 1997
?
[19]
The court a quo correctly did not utilize the
Criminal Law Amendment
Act’s
sentencing provisions. Motloung was not informed in the
charge sheet of the minimum sentence provision for the possession of
a
semi-automatic firearm and ammunition, nor was he warned about them
at the commencement of the trial. Motloung was charged with
the
unlawful possession of a semi-automatic Norinco pistol in terms of
the
Firearms Control Act which
determines a maximum sentence in
accordance with the relevant schedule 4 as 15 years, whereas
s 51(2)
of the
Criminal Law Amendment Act provides
for various minimum
sentences. In this case it would mean that Motloung as a second
offender would in terms of the minimum sentencing
regime qualify for
a higher sentence on the charge of the unlawful possession of a
semi-automatic weapon.
[20]
Notwithstanding the above the court went on to analyze the
distinctions between the
Firearms Control Act and
s 51(2)
of the
Criminal Law Amendment Act and
found that the former Act impliedly
repealed the latter Act. The
Criminal Law Amendment Act provides
:
'(2
)
Notwithstanding any other law
but subject to subsections (3) and
(6), a regional court or a Court a quo shall sentence a person who
has been convicted of an
offence referred to in − . . .’
(own emphasis.)
The
words ‘Notwithstanding any other law’ preserves other
existing laws and includes other laws that may be promulgated
into
the future provided there is no clear conflict or express repeal. It
follows that ‘any other law’ must be given
their plain
meaning which is this case must include the
Firearms Control Act.
[21
]
The two statutes must also be read in the context of Parliament’s
wish to increase sentences. The words ‘notwithstanding
any
other law’ has remained in place despite the amendment of the
Criminal Law Amendment Act on
13 November 2008. The
Firearms Control
Act, which
came into effect on 1 July 2004, introduced a distinction
between fully automatic semi-automatic firearms and the
contraventions
relating to these weapons. It is apparent that, in
passing this legislation, Parliament considered any offence relating
to the
possession of an automatic or semi-automatic firearm,
explosives or armament as being a serious offence. In providing for
enhanced
penal jurisdiction for particular forms of an already
existing offence, the legislature does not create a new type of
offence;
see
S v Legoa
[2002] ZASCA 112
;
2003 (1) SACR 13
(SCA) para 18.
[22]
Upon a proper construction of the two statutes there is no conflict
between the two sentencing regimes and they therefore do
not fall
into the exceptions where a later statute repeals an earlier one;
see:
Khumalo v Director-General of Co-Operation & Development
& others
[1990] ZASCA 118
;
1991 (1) SA 158
(A) where Van
Heerden JA stated at 165 that:
‘
The
true import of the exception therefore appears to be that, in the
absence of an express repeal, there is a presumption that
a later
general enactment was not intended to effect a repeal of a
conflicting earlier and special enactment. This presumption
falls
away, however, if there are clear indications that the legislature
nonetheless intended to repeal the earlier enactment.
This is the
case when it is evidence that the later enactment was meant to cover,
without exception, the whole field or subject
to which it relates.’
[23]
In relation to these two statutes there is no indication that the
Firearms Control Act intended
to repeal the earlier Act. Accordingly
the court a quo erred in its finding that the
Firearms Control Act
repealed
s 51
of
Criminal Law Amendment Act, as
is also the case with
the conclusion of the Full Bench of the Western Cape Division, Cape
Town, in
S v Baartman
2011 (2) SACR 79
(WCC). Baartman was
correctly overruled in the unreported decision of the Full Court of
that Division in
Bernard Swartz v The State
(A430/130
[2014]
ZAWCHC 113
(4 August 2014).
Costs
[24]
The court a quo found that it was unaware if Motloung had been
obliged to incur costs, but ordered that if costs had been incurred
the State was to pay same in terms of
s 316B(3)
of the CPA. The issue
of costs was not argued. This section provides that a court may order
the State to pay the whole or any part
of the costs incurred by an
accused person in opposing an appeal or an application. Costs orders
are generally not made in criminal
cases; see
Sanderson v Attorney
General, Eastern Cape
[1997] ZACC 18
;
1998 (2) SA 38
(CC) para
14. Clearly such an order at the very least required both the State
and Motloung to have argued the issue, which was
not done. In this
case Motloung was represented by the Legal Aid Board and no costs
were incurred. The costs order must accordingly
be set aside.
[25]
In the result, the following order is made:
1.
The appeal against the sentence on the
murder conviction on count 1 is upheld.
2.
The sentence in respect of the murder
charge on count 1 is set aside and a sentence of 15 years is imposed
backdated to 13 June
2014.
3.
The order in respect of the concurrent
running of the sentence on count 1 and in respect of the
implementation of parole or any
other reduction in sentence is set
aside.
M
Victor
Acting
Judge of Appeal
Appearances:
For
the Appellant: J M Serepo
Instructed
by: Director of Public Prosecutions, Johannesburg
Director
of Public Prosecutions, Bloemfontein
For
the Respondent: W A Karam
Instructed
by: Justice Centre, Johannesburg
Justice
Centre, Bloemfontein