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[2014] ZAGPJHC 38
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Mnisi v S (A136/2012) [2014] ZAGPJHC 38 (20 February 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION JOHANNESBURG)
CASE
NO: A136/2012
DATE:
20 FEBRUARY 2014
In
the matter between:-
MNISI
NICHOLAAS Appellant
And
THE
STATE Respondent
JUDGMENT
JULY
AJ
1.
This is an appeal against the conviction
and sentence of the applicant, by the Regional Court sitting at
Randfontein, which came
through a petition and was subsequently heard
by this court on 17 February 2014. On petition the applicant was
granted leave to
appeal against sentence only
2.
The appellant seeks two remedies:
a.
The setting aside of the convictions on two
counts of robbery with aggravating circumstances;
b.
alternatively, the reduction of the 15 year
prison sentence to 10 years as there are allegedly substantial and
compelling factors
justifying the reduction of the said sentence.
CONVICTIONS
3.
The question that needs to be answered is
whether this court has any power to deal with the conviction when the
leave to appeal
was only granted in respect of the sentence. This
court derives its powers from various sources, namely, the
legislation, constitution
and its inherent powers, to interfere if
there is if there is irregularity or misdirection which results in
injustice.
4.
It is common cause that the appellant has only been granted leave on
petition to appeal against the sentence only and not against
the
actual conviction. Notwithstanding that the leave to appeal is in
respect of the sentence, the appellant seeks this court to
interfere
with the conviction by the trial court.
5.
The appellant in his heads of argument
relies on
section 304
(4) of the
Criminal Procedure Act 51 of 1977
as
the basis upon which this court must set aside the convictions on the
two counts of robbery with aggravating circumstances.
6.
For completeness' sake,
section 304
(4)
provides that:
If in any criminal
case in which a magistrate’s court has imposed a sentence which
is not subject to review in the ordinary
course in terms of
section
302
or in which a regional court has imposed any sentence, it is
brought to the notice of the provincial or local division having
jurisdiction
or any judge thereof that the proceedings in which the
sentence was imposed were not in accordance with justice, such court
or
judge shall have the same powers in respect of such proceedings as
if the record thereof had been laid before such court or judge
in
terms of
section 303
or this section.
7.
The appellant's interpretation of this
section is misplaced. The section specifically deals with reviews and
thus does not apply
to appeals that have been considered for leave to
appeal by this court.
Section 309
specifically deals with
appeals.
8.
Although
section 309
does refer to
section
304
, this is only in relation to cases that are appealed directly
from the magistrate's court and not those that come before this court
by way of petition. Cases that come to this court by means of a
petition are dealt with in
section 309C.
Therefore, there is no
statutory power granted to this court to make such a finding in terms
of
section 309C.
0
.35in; line-height: 200%">
9.
T
his court, however, has inherent powers to
set aside any convictions and sentences which come before it, if it
finds that such a
conviction is not in accordance with justice.
Nevertheless, this court will not have the jurisdiction to exercise
its powers if
the decision taken by the two judges in dealing with
the petition is considered to be judicial in nature.
10.
In
the case of
S
v Van der Merwe
[1]
,
E Jssteyn AJ concluded that the high court did
"
not have jurisdiction to exercise its review powers if the decision
taken by the two judges in dealing with the petition
is considered
judicial in nature
"
and
further stated that,
"
in
S v Khoasasa
[2]
,
the court ruled that a decision in terms of
section 309C
of the Act
is a ruling or judgment of a Provincial Division as intended in ss 20
(1) or 21 (1) of the Supreme Court Act 59 of 1959,
meaning that the
decision is judicial in nature."
11.
Accordingly,
this court is bound by the decision of
Potland
Cement Co Ltd an Another v Competition Commission and Other
[3]
,
where
the court held that only proceedings of inferior courts could be
reviewed and that proceedings of the High Court are not reviewable.
In paragraph 3 , Schutz JA states that:
"And throughout
it has been the High Court, and only the High Court, acting through
its judges, that has enjoyed the general,
inherent jurisdiction to
entertain reviews. It is not itself the subject of review…"
In paragraph 42 , he
emphasises that :
"What I have said
about the non-reviewability of a judge does not, of course, apply to
a magistrate. A magistrate is subject
to review..."
12.
Further, for purposes of certainty and
uniformity, which are fundamental principles in our law, it is trite
that appeal judges not
arbitrarily surpass the scope of the leave
granted to appellants by petition. Petitions are decided on by
honourable judges, who
apply their minds as such and make findings as
to the matters on which they will grant a petition. It would
therefore cause unnecessary
confusion and uncertainty should appeal
judges make their own findings as to the matters upon which such a
petition should have
been granted and decide accordingly.
13.
Accordingly, the appeal against the
convictions on the two counts of robbery must fail for the reasons
set out above.
14.
However a perusal of the record and the
version put to some of the witnesses indicates that he was involved
in the robbery. The
gist of the appellant's argument was that he was
not part of the robbery that took place and that he was there looking
for a car
for his niece. He alleges that he was coerced to tie up the
victims of the crime by the so called robbers. However, when asked by
the police who responded to the alarm, about the whereabouts of the
owners, he responded and told the police that the owners had
left
with their
mercedes benz.
This was a lie. It begs the question why he had to lie when he was
not one of the robbers.
SENTENCE
15.
It is trite law that sentencing is
pre-eminently with the trial court and that 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.
16.
The
power of the court to interfere with the findings of the trial court
is limited. In the absence of demonstrable and material
misdirection
by the trial court, its findings of fact are presumed to be correct
and will only be disregarded if the recorded evidence
shows them to
be clearly wrong.
[4]
17.
The appellant raises the fact that he had
already been incarcerated for a period of 10 months before he was
convicted and thus the
sentence imposed on him is unfair
18.
In
the
S
v Vilakazi
[5]
case, Nugent JA stated that;
"…it would
be most unjust if the period of imprisonment while awaiting trial is
not then brought to account in any custodial
sentence that is
imposed. I intend ordering that the sentence- which for
purposes of considering parole is a sentence of
15 years imprisonment
commencing on the date that the appellant was sentenced- is to expire
two years earlier than would ordinarily
have been the case."
19.
Therefore in determining the sentence,
following this reasoning, the 15 year sentence against the appellant
would expire 10 months
earlier than would ordinarily have been the
case.
20.
However,
in the case of
S
v Radebe
[6]
the
court stated that in determining whether the period in detention
pre-sentencing is relevant in establishing the period of imprisonment
to be imposed, such a period should be taken into account and the
sentence must be proportionate to the crime committed. Lewis
JA
emphasises that;
"In determining,
in respect of the charge of robbery with aggravating circumstances,
whether substantial and compelling circumstances
warrant a lesser
sentence than that prescribed by the Criminal Law Amendment Act 105
of 1997 (15 years' imprisonment for robbery),
the test is not whether
on its own that period of detention constitutes a substantial and
compelling circumstance, but whether
the effective sentence proposed
is proportionate to the crime or crimes committed: whether the
sentence in all circumstances, including
the period spent in
detention prior to conviction and sentencing is a just one."
21.
It follows that the fact that the appellant
had been incarcerated for a period of 10 months, is not in itself a
substantial and
compelling factor but merely a factor to be
considered in determining whether the sentence is proportionate to
the crime and whether
the sentence is a just one.
22.
However, it is noted that the trial court
did not take the fact that the appellant had already been
incarcerated for a period of
10 months into account when determining
the sentence. This factor ought to have been taken into account in
determining whether
the sentence in all circumstances, including the
period spent in detention prior to conviction and sentencing is a
just one.
23.
Accordingly, I am of the view that the
sentence of 15 years' imprisonment from the date that he was
sentenced, taking into account
the period in detention
pre-sentencing, is to expire 10 months earlier than would ordinarily
have been the case.
24.
The appeal against the sentence is upheld. The sentence imposed upon
the appellant is set aside and is substituted with the
following:
The
accused is sentenced to 15 years imprisonment. The 10 months are to
be deducted when calculating the date upon which the sentence
is to
expire
.
______________
JULY AJ
JUDGE OF THE HIGH
COURT
I agree
_____________
FRANCIS J
JUDGE OF THE HIGH
COURT
FOR
APPELLANT
:
M
MILLER
FOR
RESPONDENT
:
M
RAMPYAPEDI
DATE
OF HEARING
:
17 FEBRUARY
2014
DATE
OF JUDGMENT :
20 FEBRUARY
2014
[1]
2009 (1) SACR 673
( C)
[2]
2003
(1) SACR 123 (SCA).
[3]
2003 (2) SA 385 (SCA).
[4]
S v Monyane and Others 2008 (1) SACR 543 (SCA).
[5]
2009 (1) SACR 552 (SCA).
[6]
2013 (2) SACR 165
(SCA).