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[2016] ZASCA 207
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Zulu v S (226/2016) [2016] ZASCA 207 (21 December 2016)
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 226/2016
In
the matter between:
ZULUBOY
ZULU APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Zulu v S
(226/2016)
[2017] ZASCA 207
(21 December 2016)
Coram:
Theron, Wallis, Willis and Mbha JJA and Coppin AJA
Heard
:
No oral hearing in terms of
s 19(a)
of the
Superior Courts Act
10
of 2013
.
Delivered
:
21 December 2016
Summary:
Sentence – leave to appeal –
misdirections by trial court – failure to take account of time
in prison awaiting
trial – failure to make allowance for the
fact that both offences constituted a single criminal occurrence.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Ledwaba J and Tuchten J sitting as court of
first instance).
1
The appeal is upheld.
2
The order of the high court dismissing the
applicant’s petition for leave to appeal is set aside and
replaced by the following
order:
‘
The
applicant is granted leave to appeal against sentence to the Full
Court of the Gauteng Division, Pretoria of the High Court.’
JUDGMENT
Wallis
JA (Theron, Willis and Mbha JJA and Coppin AJA concurring)
[1]
On 5 January 2006 in Arcadia, Pretoria, Mr Zulu,
the appellant, and a confederate hijacked a motor vehicle belonging
to a Mr Ngungweni.
At the time of the hijacking, the vehicle was
parked in the street. The two robbers, armed with fire-arms,
compelled Mr Ngungweni,
and a lady who was with him, Ms Mtombeni, to
alight. Apart from stealing the motorcar they also threatened Ms
Mtombeni and stole
her handbag with its contents. What they did not
realise was that the vehicle was fitted with a tracker alarm and they
were arrested
approximately an hour later in Yeoville, Johannesburg.
Both the car and the handbag were recovered.
[2]
Mr Zulu and his confederate were charged in the
Regional Court, Pretoria with two counts of robbery, namely the
robbery of Mr Mgungweni’s
motor vehicle and the robbery of Ms
Mtombeni’s handbag. They were also charged with offences
arising from their possession
of unlicensed firearms and ammunition.
On 18 September 2008 they were convicted and on 19 September 2008
they were sentenced. On
each count of robbery they were sentenced to
15 years imprisonment in accordance with the provisions of the
minimum sentencing
legislation, the magistrate having found that
there were no substantial and compelling circumstances justifying a
lesser sentence.
Their sentences on the firearms charges were made to
run concurrently with the two sentences for robbery and for present
purposes
they can be disregarded. The total effective sentence was
accordingly 30 years imprisonment.
[3]
The
magistrate refused Mr Zulu’s application for leave to appeal
against sentence. A petition to the high court in terms of
s 309C
of the
Criminal Procedure Act 51 of 1977
was dismissed by Ledwaba J
and Tuchten AJ. An application for leave to appeal against that
dismissal was likewise dismissed. The
matter comes before us
consequent upon the grant of special leave to appeal by this court
against that refusal. The only question
is whether Mr Zulu has
reasonable prospects of succeeding in his appeal against sentence if
he is permitted to pursue such an appeal.
[1]
If he has, then his appeal must be upheld, the order dismissing his
petition must be set aside and the matter remitted to the Gauteng
Division, Pretoria of the high court to hear and determine his appeal
against the sentences imposed upon him.
[4]
The appeal was set down for hearing on 16 February
2017. A reading of the record and the heads of argument made it clear
to all
the members of the court allocated to sit in the appeal that
the appeal had to succeed. The court has accordingly exercised the
power it now has in terms of
s 19(a)
of the
Superior Courts Act
10 of 2013
– one that the Constitutional Court has and has on a
number of occasions exercised – to dispose of the appeal
without
the need to hear oral argument. It is appropriate for us to
exercise that power in the interests of the expeditious disposal of
the appeal. It will be an appropriate use of judicial resources and
will both speed the process of setting down Mr Zulu’s
appeal
for hearing and save costs that would otherwise have been incurred
from the public purse.
[5]
In holding that there were no substantial and
compelling circumstances warranting a departure from the prescribed
minimum sentences,
the magistrate attached no weight to the fact that
while Mr Zulu faced and was properly convicted of two counts of
robbery, the
two counts arose out of a single criminal enterprise.
The problem to which this gave rise when they were treated separately
for
the purposes of sentence is readily apparent. Had Mr Ngungweni’s
wallet, cellphone, watch and other valuables been stolen,
but the
robbers had heeded Ms Mtombeni’s plea and let her keep her
handbag, they could only have been convicted of one count
of robbery.
That would have attracted a sentence of 15 years imprisonment. Even
had the magistrate wished to impose a sentence
of 30 years
imprisonment she could not have done so. The upper level of her
sentencing powers was 20 years.
[6]
The result was that the chance fact that Ms
Mtombeni was present and had her handbag stolen, was the only reason
for an increase
in sentence from 15 years to 30 years imprisonment.
It should have been plain to the magistrate that this was irrational
and resulted
in a manifestly excessive sentence being imposed for a
single criminal enterprise. The theft of the handbag added nothing to
the
moral culpability of Mr Zulu and did not justify any significant
increase in the sentence to be imposed upon him. The problem could
have been overcome by treating the two robbery counts as one for the
purposes of sentence or making the two sentences run concurrently.
[7]
Apart from this there was also the fact that,
although the two men were arrested the same night as the hijacking,
the trial dragged
on for nearly three years before they were finally
sentenced. The magistrate was alive to this but gave it no weight in
the sentencing
exercise. She should have done so.
[8]
For those reasons there were clearly reasonable
prospects of success in an appeal against sentence and leave to
appeal should have
been granted. In the result the following order is
made:
1
The appeal is upheld.
2
The order of the high court dismissing the
applicant’s petition for leave to appeal is set aside and
replaced by the following
order:
‘
The
applicant is granted leave to appeal against sentence to the Full
Court of the Gauteng Division, Pretoria of the High Court.’
M J D WALLIS
JUDGE OF APPEAL
Appearances
For
appellants:
P D Pistorius
Instructed
by:
Johan van Zyl Attorneys, Pretoria
Symington
& De Kok, Bloemfontein.
For
respondents:
P Vorster
Instructed
by:
Director of Public Prosecutions, Johannesburg and Bloemfontein.
[1]
Smith
v S
[2011]
ZASCA 15
;
2012 (1) SACR 567
(SCA).