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[2014] ZAGPJHC 37
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Dlamini v S (A374/13) [2014] ZAGPJHC 37 (20 February 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION JOHANNESBURG)
CASE
NO: A374/13
DATE:
20 FEBRUARY 2014
IN
THE HIGH COURT OF SOUTH
In
the matter between:-
NKOSI
VUKILE
DLAMINI Appellant
And
THE
STATE Respondent
JUDGMENT
JULY
AJ
1.
This is an appeal brought by the appellant
through a petition that was granted by this court. This court granted
leave to appeal
in respect of the sentence. For purposes of this
judgment, this court will concern itself with only those facts that
are relevant
to sentencing.
2.
The appellant was charged for robbery with
aggravating circumstances. The complainants version of events was
that the appellant,
with his two friends, robbed her of her cell
phone and she was hit with a brick and stabbed in the process.
According to the complainant,
it was the appellant who hit her with a
brick while the friend stabbed her.
3.
Although a contrary version was put to the
witnesses who testified on behalf of the state, the appellant refused
to testify. Only
during the determination of a sentence did the
appellant testify. He testified that he has two children.
SENTENCE
4.
It is trite law that sentencing is the
discretion of the trial court. This court may not interfere
with such discretion on
the basis that it is wrong. Only
in the case of demonstrable material misdirection that this court may
be justified
to interfere. Absent the material misdirection
this court has limited powers to interfere with the sentence imposed
by the
trial court. Also in cases where sentence imposed by the
trial court induces a sense of shock will this court be justified
to
interfere with the sentence.
5.
In imposing a sentence the trial court is
enjoined to take personal circumstances of the accused.
6.
In this matter the trial court took into
account that he had two children as well as his personal
circumstances.
7.
In paragraph 20, on page 81 of the
judgment, the court state :
"I
have… having considered all the factors the only mitigating
factors in this are the age of the accused and the fact
that he is a
first offender
…
"
8.
The nature of the offence committed by the
appellant for which he was found guilty attracts a minimum sentence
of 15 years. The
sentence cannot be deviated from, unless there are
substantial and compelling reasons for such deviation.
9.
The trial court, rightly so, considered age
to be a substantial and compelling factor, justifying deviation and
sentenced the appellant
to 12 years imprisonment. It, however, found
the fact that the appellant had children not to be compelling because
he was not in
any way responsible for them. The appellant is
appealing to this court for the further reduction of the minimum
sentence.
10.
The powers of this court to interfere with
the sentencing of the trial court are limited. This court may only
interfere with the
sentence imposed by the trial court when there has
been demonstrable and material misdirection by such a trial court in
imposing
such a sentence, or that court's discretion has not been
exercised properly or judicially. In the absence of such proof, the
appeal
court has no right to interfere with the exercise of such
discretion.
11.
The
court in
S
v Kekane
[1]
stated that:
"It
is trite that this court will not interfere with the sentence imposed
by the court a quo unless it is satisfied that the
sentence has been
vitiated by a material misdirection or is disturbingly inappropriate.
No misdirection has been alluded to, nor
can it be said that the
sentence induces a sense of shock. It has been submitted on behalf of
the appellant that the sentence is
out of proportion to the gravity
of the offence and that, in the circumstances of this case, a
non-custodial sentence was appropriate.
It is true that the appellant
has an unblemished record and that he was a useful member of society
in gainful employment at the
relevant time. Those circumstances,
however, have to be weighed against the nature and severity of the
offence and the requirements
of society. Notwithstanding those
mitigating factors being present, the seriousness of the offence
makes it necessary to send out
a clear message that behaviour of the
kind encountered in this case cannot be countenanced
."
12.
In
S
v Barnard
[2]
,
the court held that:
"A court sitting
on appeal on sentence should always guard against eroding
the trial court's discretion in this regard and should
interfere only where the discretion was not exercised judicially or
properly.
A misdirection that would justify interference by an appeal
court should not be trivial but should be of such a nature, degree or
seriousness that it shows that the court did not exercise its
discretion at all or exercised it improperly or unreasonably."
13.
If there is no clear misdirection that is
not the end of the enquiry, the appeal court will have to look at the
reasonableness of
the sentence.
14.
In
S
v Truyens
[3]
,
the court referred to
S
v Whitehead
[4]
with approval that where there is no misdirection by the trial court,
the remaining question is:
"Whether there
exists such a striking disparity between the sentences passed by the
learned trial Judge and the sentences which
this Court would have
passed – or, to pose the enquiry in the phraseology employed in
other cases, whether the sentences
appealed against appear to this
Court to be so startlingly or disturbingly inappropriate- as to
warrant interference with the exercise
of the learned Judge's
discretion regarding sentence."
15.
I do not think the circumstances of
this case warrant the interference with the sentence imposed by the
trial court.
16.
Accordingly the following order is
made:
1.
The appeal by the appellant is dismissed.
______________
JULY
AJ
JUDGE
OF THE HIGH COURT
I
agree
_____________
FRANCIS
J
JUDGE
OF THE HIGH COURT
FOR
APPELLANT
: E.
TLAKE
FOR
RESPONDENT
: V.H
MONGWANE
DATE
OF HEARING
: 20 FEBRUARY
2014
DATE
OF JUDGMENT
: 20 FEBRUARY
2014
[1]
2013 (1) SACR 101(SCA).
[2]
2004(1) SACR 191 (SCA).
[3]
2012 (1) SACR 79 (SCA).
[4]
1970 (4) SA 424
(A).