About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 239
|
|
Hali v S (A202/21) [2021] ZAWCHC 239 (19 November 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: A202/21
In
the matter between
SHAWN
HALI
APPELLANT
AND
THE
STATE
RESPONDENT
CORAM:
BINNS-WARD J and THULARE AJ
Heard:
12 November 2021 (in terms of s 19(a) of the Superior Courts
Act)
JUDGMENT
Delivered
by email to the parties’ legal representatives and release to
SAFLII.
The
judgment shall be deemed to have been handed down at 10h00
on
19 November 2021
THULARE
AJ (BINNS-WARD J concurring);
[1]
The appellant was granted leave, on petition, to appeal against
sentence only. He had been convicted in the Regional Court on
a
charge of robbery with aggravating circumstances, read with the
provisions of
section 51(2)
of the
Criminal Law Amendment Act 105 of
1997
. The magistrate found that there were no substantial and
compelling circumstances to warrant a deviation from the prescribed
minimum
sentence and sentenced the appellant to 15 years’
imprisonment. He was sentenced on 5 March 2021.
[2]
The complainant was a young female Cape Town College student who was
in Plein street in the city centre on the afternoon of
16 September
2018. She had a backpack on her back. She spoke to her mother on the
phone as she received her order at a takeaway
restaurant. As she left
Fry King, she unzipped her jacket, placed her phone in the pocket and
zipped up and continued walking.
She realized that someone was
following her and the person was walking faster than her. She then
moved closer to the Woolworths
building which she was passing to make
way for the person behind her.
[3]
The person did not walk past, and she looked at him. It was the
appellant. The appellant instructed her to give him her phone.
Before
she answered, she felt that something was pressing against her pocket
where she had put the phone. The appellant was using
a knife to press
against the phone whilst it was still in her pocket. The appellant
then said she must unzip the jacket and hand
over her phone. The
appellant moved the knife slightly to make way for the removal of the
phone. He still held the knife against
her tummy. She unzipped the
jacket and as the phone hung out the appellant took it.
[4]
The appellant then demanded money and she told him that she did not
have any. The appellant also demanded that she remove her
backpack
and hand it to him. As she removed the backpack, the appellant helped
her remove it from her back. After he had taken
her belongings, he
then withdrew the knife. He put the backpack over his shoulder and
told her that if she followed him, he would
use the knife on her. He
then walked back in the direction from which he had approached her.
At all times that he was talking to
her, from the moment he demanded
her phone, the appellant held the knife against her.
[5]
The complainant’s phone was an HI Pulse Mobicell valued at
around R1400. It was inside a pouch. In that pouch, she also
kept her
bank, library, medical and student cards. As she continued down the
street after the robbery she saw a law enforcement
vehicle and
approached it. She reported the incident to the officer, Inspector
Siyabulela Nomvula (Nomvula). He asked her
to get into the
vehicle and they drove around the building. They noticed the
appellant with two other persons about to cross at
a traffic light.
The appellant was walking between the other two. He still had
her backpack over his shoulder on his back.
She pointed him out
to Nomvula.
[6]
Nomvula parked the vehicle and approached the three. When the
appellant realized that Nomvula was approaching him he tried to
run
away but Nomvula chased and apprehended him and brought him back to
the marked enforcement vehicle. Nomvula took the bag and
handed it
over to the complainant. It still had all its contents and nothing
was missing from it. Nomvula searched the appellant.
Although a phone
was found hidden in his underwear, it was not the complainant’s.
The pouch and all its contents were never
found. Nomvula found an
okapi knife in the appellant’s left-hand pocket.
[7]
The appellant is 33 years old, unmarried and has no children. His
mother is deceased and his father lives in the Eastern Cape.
He
is the third child of six siblings. He completed standard 5. He
stayed with his sisters in Khayelitsha. He worked as a car guard
daily and made on average between R350-00 and R400-00 per day. He had
been in custody since his arrest. He had several previous
convictions. In 1988 he was convicted for theft and cautioned and
discharged. In 2002 he was convicted of housebreaking with intent
to
steal and theft and the passing of sentence was postponed for four
years. In 2003 he was convicted of unlawful possession of
suspected
stolen property and the passing of sentence was postponed for three
years on condition that he submitted himself if called
upon to do so
during the period.
[8]
In 2004 he was convicted, on two different dates, of housebreaking
with intent to steal and theft and sentenced as regards the
first
conviction, to 2 years’ imprisonment wholly suspended for five
years and as regards the second conviction to eighteen
months’
imprisonment wholly suspended for 5 years, both on condition that he
was not convicted of housebreaking and theft
committed during the
period of suspension. In the same year he was convicted for unlawful
possession of a firearm and unlawful
possession of ammunition. He was
sentenced to one year’s imprisonment in terms of
section
276(1)((i)
Act 51 of 1977 in respect of the former and to 6 months’
imprisonment suspended for five years on condition that he is not
convicted of unlawful possession of ammunition committed during the
period of suspension.
[9]
In 2006 he was convicted of theft and fined R300 or 30 days
imprisonment wholly suspended for three years on condition that
he
was not convicted of theft committed during the period of suspension.
In 2007 he was convicted of failure to appear in court
after being
granted to bail and was fined R200 or ten days’ imprisonment.
In the same year he was convicted of theft and
sentenced to 24
months’ imprisonment in terms of section 276(1)(i) of Act 51 of
1977. In 2015 he was convicted of unlawful
possession of
dependence-producing substances and fined R100-00 or 5 days’
imprisonment.
[10]
The issue is whether the trial court in imposing sentence, exercised
its discretion judicially and properly.
[11]
In
S v Dodo
[2001] ZACC 16
;
2001 (3) SA 382
(CC) at para 37 it was said:
“
The
concept of proportionality goes to the heart of the enquiry as to
whether punishment is cruel, inhuman or degrading, particularly
where, as here, it is almost exclusively the length of time for which
an offender is sentenced that is in issue.”
In
S v Malgas
2001 (1) SACR 469
(SCA) at para 25 it was said:
“
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society so that an injustice would
be done
by imposing that sentence, it is entitled to impose a lesser
sentence.”
In
S v Vilakazi
2012 (6) SA 353
(SCA) at para 14, referring to
this comments in
S v Malgas
it was said:
“
It
is clear from the terms in which the test was framed in
Malgas
and endorsed in
Dodo
that it is incumbent upon a court in
every case, before it imposes a prescribed sentence, to assess, upon
a consideration of all
the circumstances of the particular case,
whether the prescribed sentence is indeed proportionate to the
particular offence. The
Constitutional Court made it clear that what
is meant by the “offence” in that context (and that is
the sense in which
I will use the term throughout this judgment
unless the context indicates otherwise) consists of all the factors
relevant to the
nature and seriousness of the criminal act itself, as
well as all relevant personal and other circumstances relating to the
offender
which could have a bearing on the seriousness of the offence
and culpability of the offender.
If
a court is indeed satisfied that a lesser sentence is called for in a
particular case, thus justifying a departure from the prescribed
sentence, then it hardly needs saying that the court is bound to
impose that lesser sentence. That was also made clear in
Malgas,
which said that the relevant provisions in the Act
vests the sentencing court with the power, indeed the obligation, to
consider
whether the particular circumstances of the case require a
different sentence to be imposed. And a different sentence must be
imposed
if the court is satisfied that substantial and compelling
circumstances exist which ‘
justify’ …
it.”
[12]
The offence was committed in broad daylight in the city centre. A
young, innocent, vulnerable and defenceless female student
was
walking to the student residence alone and became a soft target. In
recent times a cellphone is not only a means of communication
between
a student and its parents for example. It is a necessary tool for
studies and research. The right to privacy, freedom of
movement as
well as personal property were violated. A knife was pressed against
her stomach to threaten her life and induce fear.
It was a traumatic
experience for a young woman. The city is home to a great
number of students, not only from other provinces
but also from other
countries, most of whom are in Cape Town primarily for their
education. The sentence should reflect that their
safety is a concern
for the court and that the justice system will respond swiftly and
appropriately. The close proximity
of law enforcement and the
alertness and quick reaction of both the complainant and the law
enforcement officer led to the arrest
of the appellant. The backpack
containing the lunch box and text books were found but the pouch was
never recovered. A cellphone,
identity document, bank card, library
and student cards which were in the pouch are necessaries in the life
of a student. Their
loss occasioned a major disruption in the life of
the complainant, who had to relive the trauma every time that she had
to apply
for the re-issue at every issuing authority for all these
necessaries.
[13]
The appellant is a mature man who worked as a car guard and earned an
income. His actions were motivated by simple greed. His
previous
convictions present a man who had a history of not respecting other
people and their property. Greed and the use of force
have
characterized his previous offences. No doubt a long term of
imprisonment was called for under the circumstances. The appellant
has been for a long period a beneficiary of non-custodial sentences
and this did not help him in any way. On the two occasions
that he
was imprisoned, it was for a short period and it did not have the
desired effect as regards rehabilitation.
[14]
The crime is indeed a serious one. The circumstances, however, are
that the degree of physical violence was minimal. The level
of
violence, for all intents and purposes, amounted only to a threat of
violence by wielding and pressing a knife against the body
of the
victim. The complainant suffered no physical injuries. Some of the
stolen items were recovered. These facts in my view distinguishes
this case. In my view they should have been accorded due weight,
which the trial court failed to do. This in no way seeks to undermine
the trauma that such threats induced on the victim.
[15]
The failure to accord due weight to the distinguishing circumstances
of the case was a misdirection which warrants an inference
that the
trial court did not exercise its discretion properly and reasonably
[
S v Pillay
1977 (4) SA 531
(A) at 5353E-F]. The appellant was
arrested on 16 September 2018 and was sentenced on 5 March 2021. He
had been in custody for
about two years and six months awaiting
trial. This pre-conviction period of imprisonment was a relevant
factor as well for the
trial court to consider in relation to the
proportionality of the sentence [
Ngcobo v S
[1344/2016]
2018
ZASCA 06
(23 February 2016) at para 14]. The impact of the period on
the sentence was not explored.
[16]
In my view, had the magistrate accorded due weight to the
circumstances of this case and due regard to the pre-conviction
period, he would have found that the minimum prescribed sentence was
disproportionate and unjust. The magistrate would have found
substantial and compelling reasons to deviate from the prescribed
sentence. I would make the following order:
(a)
The appeal on sentence is upheld.
(b)
The sentence of the trial court is set aside and replaced with the
following:
The
accused is sentenced to 10 years’ imprisonment.
(c)
The substituted sentence is antedated to 5 March 2021 in terms of
section 282
of the
Criminal Procedure Act 51 of 1977
.
D.M.
THULARE
Acting
Judge of the High Court
A.G.
BINNS-WARD
Judge
of the High Court