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[2014] ZAGPJHC 416
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Radebe v S (A398/2013) [2014] ZAGPJHC 416 (16 May 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE GAUTENG HIGH
COURT
(LOCAL DIVISION
JOHANNESBURG)
CASE NO: A398/2013
DATE: 16 MAY 2014
In the matter between
RADEBE, ENOCH
MANDLA
.........................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
J U D G M E N T
CORAM: RE MONAMA J et MOSIKATSANA
AJ:
[1] The appellant was charged in the
Protea Regional Magistrate’s court with two counts:
Count 1: Robbery with aggravating
circumstances read with the provisions of Act 51 of 1977 and s 51(2)
of Act 105 of 1997;
Count 2: Attempted murder.
[2] On 17 November, 2010 he pleaded not
guilty to both counts. On 02 December, 2010 he was convicted on count
1 and acquitted on
count 2 to obviate a splitting of charges and a
concomitant duplication of conviction. He was sentenced to eighteen
years imprisonment.
Leave to appeal conviction and sentence was
denied on 30 March, 2011. Leave to appeal sentence only was granted
on petition on
23 August, 2013.
[3] The incident from which the charges
arose occurred on 28 August, 2010 at approximately 23h30. The first
complainant arrived
home. He found his wife, the second complainant
home, waiting for him. The first complainant entered the house, he
closed the door
but he did not lock it. He sat down. Immediately
thereafter, three men entered the house without knocking. The
appellant was amongst
them. He had a gun. The other assailant was
holding an iron rod. The first person to enter the house was the
assailant with the
iron rod, followed by the appellant and the third
assailant.
[4] The appellant accosted the first
complainant. He swore at him and demanded cell-phones and money from
him. The Appellant and
the other two assailants ordered the first and
second complainants to face down and not to look at them. Each time
the appellant
demanded money from the first complainant, he whipped
him with the firearm on the head. In total he whipped him on the head
three
times with the firearm. The first complainant was bleeding from
the injuries he sustained from being hit with a firearm on the head.
The appellant and his accomplices eventually robbed the first and
second complainants of their two cell-phones.
[5] The appellant and his two
accomplices continued to demand money from the complainants. The
second complainant informed them
that they had no money except for
the R5.50 that was placed on the sofa. The assailant who was carrying
an iron rod called the
second complainant a bitch and asked her what
she expected him to do with R5.50. The appellant threatened to shoot
the first complainant.
At the same time the assailant with an iron
rod went into the bedroom. At this point, the second complainant
stood up. She pleaded
with them not to shoot her husband. She told
them that they didn’t have money but that they could take the
TV, DSTV decoder
and the DVD player because that was all they had.
[6] Instantaneously, the second
complainant grabbed the appellant. They struggled for the firearm.
She pushed the appellant to the
kitchen next to the stove. During the
struggle, the firearm that was already cocked went off, shooting the
second complainant on
her right breast. The second complainant and
the appellant continued to fight for control of the firearm. She
pushed the appellant
outside the house and started screaming for
help. The assailant with an iron rod who was in the bedroom at the
time came to the
appellant’s assistance. He hit the second
complainant on the left side of both her head and her hip. She
continued to scream
asking the neighbours for help. Appellant and the
assailant with an iron rod fled the scene.
[7] Both complainants were taken to
hospital. The first complainant was released after receiving stitches
to the head due to the
injuries he sustained from being
pistol-whipped. The second complainant went through surgery. She was
hospitalised for seven days.
Three of those days she spent in the
intensive care unit. None of the items stolen during the robbery were
recovered.
[8] Both complainants identified the
appellant by means of a scar on the left side of his upper lip. Both
complainants were also
able to pick out the appellant in an
identification parade line-up. The line-up consisted of seven
persons. The regional magistrate
commented that ideally the line -up
should have consisted of ten persons, but he found a parade of seven
persons to be sufficient
for the purpose.
[9] The Appellant’s defence was a
total denial of all the allegations against him. He argued that he
was incorrectly identified.
He stated that the investigating officer
had taken pictures of him on his cell-phone and shown them to the
complainants to enable
them to identify him as the perpetrator at the
parade. He stated that after the arrest he was taken to the home of
the complainants
to be shown to the complainants but they were not
home. At the time the complainants were still in hospital.
[10] The regional magistrate found that
the complainants’ evidence was reliable and that the scar on
the appellant’s
lip by which he was identified, made it easy
for the complainants to identify him.
[11] On the issue of sentence, counsel
for the appellant argued that a sentence of eighteen years for
aggravated robbery resulting
in the victims being injured is
shockingly inappropriate as it is not proportionate to the offence
committed, the interests of
society or those of the appellant (S v
Vilakazi
2009 (1) SACR 552
(SCA) 574-575 par58-60). She argued that
the regional magistrate misdirected himself in reasoning that the use
of a firearm in
a robbery is far more aggravating than if a knife is
used.
[12] Appellant’s counsel further
argued that even though the charge of attempted murder was dropped as
it amounted to a splitting
of charges it appeared that the eighteen
year sentence was intended to punish the appellant for shooting the
second complainant.
Appellant’s counsel submitted that the
statutory minimum sentence of fifteen years would have been
appropriate in the circumstance,
as it would have the desired effect
of making the appellant appreciate the blameworthiness of his actions
while tampered with mercy
(S v Rabie 1975(4) SA 855 (A)).
[13] The respondent has reminded this
court that sentence is a matter for the sentencing court (S v
Kgosimore
1992 (2) SACR 238
(SCA) and that the court of appeal is not
to interfere with the sentence imposed merely because it would have
imposed a different
sentence or even a lighter sentence. The appeal
court it is argued can only interfere with the sentence if it is
convinced that
the regional magistrate did not exercise his
discretion judiciously (S v Skenjana
1985 (3) SA 51
(A)).
[14] In the heads of argument,
respondent argued that the appellant was legally represented
throughout the trial and that his counsel
addressed the sentencing
court on mitigation. Respondent further submits in its heads, that
the regional magistrate carefully weighed
all the factors including
the aggravating factors in imposing a sentence of eighteen years.
[15] The regional magistrate in passing
sentence took into account as mitigating factors, that the appellant
has a child to maintain,
that he has no prior convictions and that he
spent some time in jail awaiting trial. These factors were balanced
against the fact
that the crime was premeditated and that the second
complainant was wounded with a firearm and almost killed in the
robbery. The
regional magistrate having found no compelling and
substantial reasons to impose a lesser sentence than the prescribed
minimum
of fifteen years also found sufficient facts to exceed the
minimum.
[16] The difficulty that this court
encounters is that the regional magistrate did not sufficiently
articulate the considerations
which justified a sentence in excess of
the prescribed minimum of fifteen years. In our view, the regional
magistrate did not exercise
his discretion judiciously in imposing a
sentence of eighteen years which is in excess of the prescribed
minimum of fifteen years.
[17] In oral argument on 11 March, 2014
despite earlier written submissions by the respondent, arguing for
the 18year sentence not
to be disturbed, both counsel conceded that a
sentence of eighteen years is shockingly inappropriate even when
taking into account
the fact that the second complainant sustained
gun wounds in the robbery.
[18] This court accepts the oral
arguments of both counsel on the severity of the sentence. It is the
finding of this court that
the regional magistrate was misdirected in
imposing a heavier sentence than the statutorily prescribed minimum
of fifteen years
without giving adequate reasons to justify a heavier
sentence.
IN THE RESULT
[19] The sentence of the court a quo is
set aside and is replaced with the following:
19.1 15yrs imprisonment antedated to
the date of sentence 02 December, 2012.
TL MOSIKATSANA
ACTING JUDGE OF THE HIGH COURT
I agree.
RE MONAMA
JUDGE OF THE HIGH COURT
COUNSEL FOR APPELLANTS MS M BOTHA
COUNSEL FOR RESPONDENT ADV E
DUPLOOY
DATE OF HEARING 11 MARCH 2014
DATE OF JUDGMENT 16 MAY 2014