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[2014] ZAGPJHC 140
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Mbambo v S (A532/2013) [2014] ZAGPJHC 140 (15 May 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT
JOHANNESBURG
CASE
NO:
A532/2013
In
the matter between:
MBAMBO,
SIBUSISO
.............................................................................................................
Appellant
and
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
LAMMINGA
AJ:
[1]
The Appellant, Mr Sibusiso Mbambo appeared in the Regional Court for
the Regional Division of Gauteng held at Randburg on a
charge of
robbery with aggravating circumstances as contemplated in Section 1
of Act 51 of 1977 read with sections 51 and 52 of
Act 105 of 1997. In
the charge sheet it was alleged that upon or about the 2
nd
July 2007 and at 37 S[…] Road, B[…], Randburg, in the
Regional Division of Gauteng, he unlawfully and intentionally
assaulted Peter Nyaboko, and did then and there and with force take
from him the following property which was his property to wit
one
brown leather jacket valued at R1000-00, four bank cards, cash in the
sum of R50-00, motor vehicle keys and a HTC cellular
phone, valued at
R8000-00 – Aggravating circumstances being that the accused and
or an accomplice whether before, during
or after the commission
thereof handled a firearm, or a dangerous weapon and who
inflicted a grievously injury or injuries
and/or threatened to
inflict a grievous bodily injury or injuries.
[2]
The Appellant, who had legal representation throughout the trial,
pleaded not guilty to the charge on 11 October 2007, but was
convicted and sentenced to 18(eighteen) years imprisonment on 15
October 2007.
[3]
On 29 July 2010 an application for condonation and leave to appeal
was heard and refused by the Regional Magistrate.
[4]
On 6 November 2013 the Appellant’s petition to the Judge
President for leave to appeal against the conviction was refused
but
he was granted the requisite leave to appeal against the sentence.
[5]
The facts of the case as regards the merits can be summarized as
follows:
The
Complainant arrived home, at 21h00 on the evening of 2 July 2007,
opened the electric gates to his driveway, entered and closed
the
gates again with a remote control. The premises are fully fenced. He
unlocked the security gate and front door and went in
to put down his
groceries. As he was on his way to close the front door, the Accused
entered through the open door, holding a knife
in a raised position
and gesturing to him to be quiet. The Accused whispered that he
should be quiet or will be killed. Three more
men entered behind the
Accused. Subsequently the Complainant was tied up, gagged and items
as listed in the charge sheet, taken
from him and/or his house. As
the Accused and his accomplices were busy in the house the
complainant managed to escape and flag
down a police vehicle in the
street. The Accused was apprehended in possession of the
complainant’s jacket and the bank cards,
which he tried to
discard shortly before he was apprehended.
[6]
After the conviction, the State proved a previous conviction of the
Accused. He was found guilty of theft committed on 31 May
2004 and
sentenced to five years imprisonment of which four years imprisonment
was suspended. Unfortunately there is no copy of
the SAP 69 included
in the record and no indication that the SAP69 was entered into
evidence as an exhibit. Therefore we do not
know when he was
convicted and sentenced on that case. Nor do we know what the
conditions of his suspension were. However, dispossessing
someone of
their property is common to both theft and robbery.
[7] The provisions
of the
Criminal Law Amendment Act 105 of 1997
, specifically
Section
51(2)
is applicable and states that:-
“
(2)
Notwithstanding any other law but subject to subsections (3) and (6),
a regional court or a High Court shall sentence a person
who has been
convicted of an offence referred to in-
(a)
Part II
of
Schedule 2, in the case of-
(i) a first
offender, to imprisonment for a period not less than 15 years;
…
Provided that the
maximum term of imprisonment that a regional court may impose in
terms of this subsection shall not exceed the
minimum term of
imprisonment that it must impose in terms of this subsection by more
than five years.”
And in
Part II
of
Schedule 2:-
“…
Robbery-
(a) when there
are aggravating circumstances; or
(b)
involving the taking of a motor vehicle.”
[8]
Although the charge sheet referred to
Sections 51
and
52
of Act 105
of 1997, there is no indication in the record that the said
provisions were explained to the Accused. In cases such
as
S
v Chowe
2010 (1) SACR 141
(GNP) and
S v Ngomane
2012 (2) SACR 474
(GNP) it was remarked that it is the task and
responsibility of the presiding officer to explain the fact that he
is exposed to
the minimum sentence legislation, since it is inherent
to the right to a fair trial. As stated, this point was not raised in
this
appeal, but the issue was raised during argument and counsel for
the Respondent conceded that, since this was not done, the court
was
restricted to its ordinary sentencing jurisdiction of 15 years. This
concession is incorrect in that in this case the Appellant
was
informed in the charge that it should be read with the provisions of
Sections 51 and 52 of Act 105 of 1997. In
S
v Nkadimeng
2008 (1) SACR 538
(T)
it was held that where the charge sheet makes a clear reference to
the fact that the prosecution will rely on the provisions
of Act 105
of 1997, and the Accused has legal representation, then there is no
duty on the trial court to explain the implications
of that
legislation to the Accused.
[9]
The Appellant’s submission is that the presiding officer
misdirected himself in finding that there were no substantial
and
compelling circumstances justifying a departure from the prescribed
minimum sentence and his finding that a more severe punishment
is
appropriate.
[10] The
circumstances referred to by the Appellant were that:-
10.1.
There was no gratuitous violence involved;
10.2.
The accused is a first offender in relation
to robbery;
10.3.
Not much was stolen;
In
my view, these do not amount to substantial and compelling
circumstances to justify a departure from the minimum sentence.
[11]
Another point not raised in this appeal is the fact that the
Presiding Officer did not inform the parties that he might consider
a
sentence of more than the prescribed minimum.
[12] In
S v
Mthembu
2012 (1) SACR 517
(SCA) the Supreme Court of Appeal
dealt with the question whether
S v Mbatha
2009 (2)
SACR 623
(KZP) was correctly decided. In
Mbatha,
Wallis
J (as he then was) held at paragraph [26] that the proper approach,
when a court considers imposing a sentence greater than
the
prescribed minimum sentence, is that the Accused must be warned by
the court, as failing to do so will constitute a defect
in the
proceedings. After due consideration of the motivation for the
finding in the
Mbatha
case, the Supreme Court of Appeal
in
Mthembu
(supra)
held at p 524 paragraph [18]
that Wallis J’s view that:-
“
[…]the
failure to apprise the defence of the fact that a higher sentence
than the minimum was in contemplation constitutes,
without more, a
defect in the proceedings, cannot be endorsed. In our view such
failure, in and of itself, will not result in a
failure of justice
which vitiates the sentence.”
[13]
In this regard, the court differed from the finding in
S
v Maake
2011 (1) SACR 263
(SCA),
stating that the court therein did not analyse the
Mbatha
(supra)
decision in arriving at its finding. It follows then that the mere
fact that the defence was not informed of the court’s
contemplation of imposing a higher sentence than what is the
prescribed minimum, is not, on its own, sufficient to vitiate the
sentence.
[14]
In the present case the learned magistrate did
set out various aggravating factors which led him to conclude that a
more severe
punishment other that the prescribed minimum sentence
would be appropriate. Thus he states that there was premeditation, an
ambush
of an individual by a group, prevalence of the offence, a
previous conviction on a charge of theft and lack of remorse. In
light
of the decision in
S v Mthembu
and specifically also that it was decided in
S
v Mokela
2012 (1) SACR 431
(SCA) at
p 439 paragraph [10] that a court of appeal will only be justified to
interfere in the sentencing court’s discretion
where it is
satisfied that the sentencing court misdirected itself, or did not
exercise its discretion properly or judicially,
the sentence must
stand.
Accordingly, I
propose the following order:-
The
appeal against the sentence is dismissed.
___________________
LAMMINGA
AJ
I
agree and it is so ordered:
___________________
WEINER
J
Counsel
for the Appellant: THLAKE
Counsel
for the State: MUSHWANA
Date
of Hearing: 12 May 2014
Date
of Judgment: 15 May 2014