About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2015
>>
[2015] ZAGPJHC 153
|
|
Mtshali and Another v S (A319/2014) [2015] ZAGPJHC 153 (19 March 2015)
REPUBLIC
OF SOUTH AFRICA
GAUTENG
HIGH COURT
JOHANNESBURG
LOCAL DIVISION
CASE
NO: A319/2014
DPP
REF: 9/2/5/1 – 2014/0397
DATE: 19 MARCH 2015
In the matter
between:
Sakhile
Mtshali
.................................................................................................................
First
Appellant
Irvin
Zwane
...................................................................................................................
Second
Appellant
And
The
State
.................................................................................................................................
Respondent
Judgment
Vally J
1.
The
appellants were indicted in the Regional Court, Orlando, on 8 May
2012 on charges of Robbery with aggravating circumstances
in that
they: unlawfully and intentionally assaulted Siphiwe Mphakana
(Mphakana) and/or Sibongile Molefe (Molefe) on 7 November
2010 had
taken the following property belonging to either or both of them:
1. R150.00 in cash
2. R100.00 in cash
3. One X1 Nokia handset.
The aggravating circumstance was the fact that they pointed a firearm
at both Mphakana and Molefe.
2.
They
were duly informed that s 51, as well as Schedule 2 of the Criminal
Law Amendment Act 105 of 1997 (the CLAA), provided that
minimum
sentences, would be applicable to them should they be found guilty.
3.
They
pleaded not guilty and did not take advantage of their right to a
provide a plea explanation in terms of s 115 of the Criminal
Procedure Act of 1971 (the CPA). The trial commenced and ran until 8
October 2012 when judgment on the issue of their guilt was
handed
down. They were both convicted of the offences referred to in the
indictment. On 21 January 2013 they were each sentenced
as follows:
Appellant 1 was sentenced to spend fifteen years in prison;
Appellant 2 was sentenced to spend eighteen years in prison.
4.
They
both appeal against their respective convictions and sentences.
On conviction they both claim that the State had failed
to prove
their guilt beyond reasonable doubt. They further contend that in any
event the sentence meted out to each of them is
shockingly
inappropriate.
Conviction
5.
The
State led the evidence of two witnesses: Mphakana and Molefe. They
were both witnesses to the robbery. They were also the victims
of the
robbery. Their testimonies, read cumulatively, established the
following facts:
5.1.
They
are in a relationship with each other. Late at night on 7 November
2010, which was a Sunday, they were walking towards the
home of
Molefe in Noordgesig when they realised that they were being followed
by two young men, who it turned out were the two
appellants. Molefe
looked back at both appellants and discovered that she knew them
both. She had never spoken to them but knew
them, and in particular
had come to regard appellant 2 as a troublesome person.
5.2.
As
they crossed the road, they were accosted by the two appellants.
Appellant 2 brandished a firearm and pointed it at them. Appellant
1
searched them both and found R150.00 on Mphakana and R100.00 on
Molefe which he took from them. In the meantime appellant 1 also
took
a cell phone handset - a Nokia from one of them. After taking their
possessions, the two appellants left them and proceeded
on their way.
5.3.
Mphakana
told Molefe to proceed home on her own, while he surreptitiously
followed the two appellants. He saw them enter a certain
house.
Thereafter he retreated to his own home. The next day he visited the
police station where he laid a charge of armed robbery
against the
appellants. Molefe on the other hand had returned home, and did not
go to work the next day. The money taken from her
was the only money
she had, which she had intended to use as taxi fare to get to work
the next day. She met Mphakana the next day
and he told her that he
had laid a charge of armed robbery against the appellants. She did
not lay a charge against the two appellants.
6.
The
appellants both testified in their respective defences.
7.
The
facts established as a result of the evidence presented by the State
witnesses show that:
7.1.
Mphakana
and Molefe were robbed at gunpoint by two young men on the night of 7
November 2010;
7.2.
The
two appellants were known to Mphakana and Molefe;
7.3.
Both
Mphakana and Molefe identified the appellants as the two young men
that accosted them that night and robbed them at gun point
of R250.00
and a Nokia handset.
8.
Appellant
1 claimed that he was not in Noordgesig on the night of 7 November
2010. He was many kilometres away in Randfontein, where
he was
employed by a company operating under the name and style of Erbacon
Construction Company. He knew both Mphakana and Molefe.
He claimed
that they both had a “
vendetta
”
against him and had therefore falsely accused him of robbing them. In
support of this statement he said that a long time
ago he was
romantically involved with Molefe’s friend but had terminated
that relationship, which gave her cause to be angry
with him. Her
anger eventually led her to become vengeful towards him. Mphakana on
the other hand merely acted upon orders of Molefe
by laying the
charge against him.
9.
Appellant
2 too, maintained that Molefe had a
vendetta
against him. He claimed that he had had an argument with her “
before
2002
”,
when they were “
children
”,
and that at the time she had falsely laid a charge against him. He
could not specify what the charge was however nothing
came of it.
Since then she had acted “strangely” towards him and much
so that for the next ten years they did not speak
to each other.
He, however, was unable to locate this
vendetta
in any actual event. Finally, he claimed that on the night in
question he was at home asleep.
10.
Both
their versions are lacking in detail as well as substance. They are
also devoid of rational explanation. They provide no basis
for their
claim that Molefe would falsely implicate them in something as
serious as an armed robbery with aggravating circumstances,
and would
influence Mr Mphakana to lay the charge on her behalf. On their own
versions, there was nothing that occurred between
each of them and
Molefe in recent times for her to suddenly decide to influence
Mphakana to lay a charge against each of them.
She would have had to
bear so much dislike that would falsely implicate them in a very
serious crime, one that will place them
in serious jeopardy: facing
an indictment so serious that they could lose their freedom for many
years should she succeed in her
design to falsely implicate them. She
would also have had to be very cunning and imaginative to devise a
scheme that falsely alleged
that she and her lover, Mphakana, were
the victims of a robbery with aggravating circumstances, which took
place late on a Sunday
night. The scheme would also have required her
to succeed in getting Mphakana to falsely lay a charge against them.
This last part
would have been absolutely necessary for she herself
was not prepared to lay any charge against the appellants. There was
nothing
in the evidence to support any suggestion to this effect and
any such suggestion would be fanciful in the extreme.
11.
In
the circumstances, I hold that their respective versions are not
reasonably possibly true.
12.
In
my judgment the State had, therefore, proven beyond any shadow of
doubt that the appellants were guilty of committing the offence
of
robbery with aggravating circumstances. For this reason, I hold that
their respective appeals against their convictions are
without merit.
Sentence
13.
It
is now settled law that an appeal court can only interfere with the
sentence imposed if it finds that the trial court misdirected
itself
in a material manner.
[1]
The appellate court is not entitled to usurp the discretion of the
trial court and impose a sentence of its own choosing simply
because
it prefers its own sentence to that of the trial court. However, it
can interfere in a situation where it finds the sentence
imposed by
the trial court is so different from the one it would impose that it
can be said that the sentence imposed by the trial
court “
induces
a sense of shock
”.
Important to note is that it can only interfere if it finds the
difference between the sentence it would impose and the
one imposed
by the trial court is of a significant magnitude. As Marais JA
observed:
“
Where
a material misdirection by the trial court vitiates its exercise of
that discretion, an appellate Court is of course entitled
to consider
the question of sentence afresh. In doing so, it assesses sentence as
if it were a court of first instance and the
sentence imposed by the
trial court has no relevance. As it is said, an appellate court is at
large. However, even in the absence
of material misdirection, an
appellate court may yet be justified in interfering with the sentence
imposed by the trial court.
It may do so when the disparity between
the sentence of the trial court and the sentence which the appellate
court would have imposed
had it been the trial court is so marked
that it can properly be described as “shocking”,
“startling” or
“disturbingly inappropriate”.
It must be emphasised that in the latter situation the appellate
court is not at large
in the sense in which it is at large in the
former. In the latter situation it may not substitute the sentence
which it thinks
appropriate merely because it does not accord with
the sentence imposed by the trial court or because it prefers it to
that sentence.
It may do so only where the difference is so
substantial that it attracts epithets of the kind I have mentioned.
No such limitation
exists in the former situation.”
[2]
14.
At
the commencement of the trial the magistrate informed them of the
applicability of the minimum sentence legislation applicable
to their
case and they both indicated that they comprehended the consequence
of being found guilty of so serious a charge.
15.
In
the case of appellant 1 the
court
a quo
applied s 51(2) read with Schedule 2 of the CLAA and imposed a
sentence of 15 years imprisonment. Section 51(2) provides:
“
51
Discretionary minimum sentences for certain serious offences
(1)
Notwithstanding
any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person
it has convicted of an
offence referred to in Part I of Schedule 2 to imprisonment for life.
(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;
(ii) a second offender of any
such offence, to imprisonment for a period not less than 20 years;
and
(iii) a third
or subsequent offender of any such offence, to imprisonment for a
period not less than 25 years;
(b)
...
”
16.
The
relevant portions of Schedule 2 Part 2 provide:
“
Murder
in circumstances other than those referred to in Part I.
Robbery-
(a)
when there are aggravating circumstances; or
(b)
involving the taking of a motor vehicle.
”
17.
That
the provisions of s 51(2) of the CLAA have application in this case
is not disputed, and their application bears the consequence
of
imposing a minimum sentence of 15 years on the first appellant unless
the court found compelling and substantial circumstances
to detract
from such a sentence. In casu the court
a
quo
indicated that even if s 51(2) of the CLAA was not applicable it
would have imposed a sentence of 15 years on appellant 1. This,
the
court
a
quo
said, was based on the fact that the offence for which the two
appellants were convicted is rife within its jurisdiction causing
a
great deal of pain and suffering for members of the community
affected thereby. There is no doubt in my mind that the court
a
quo
was correct to take these factors into account, for they address the
issues of the gravity of the offence and the interests of
society.
The court
a
quo,
however, did not give any consideration to the interests of appellant
1. It also failed to take note of the fact that he spent
more than
one year in prison awaiting trial; that he was a first offender who
was gainfully employed and had two minor children
that he was
providing for. On the other hand it has to be noted that appellant 1
showed no remorse for what he had done.
18.
Nevertheless
balancing these factors, I come to the conclusion that there are
compelling circumstances warranting a reduction in
the minimum
sentence prescribed by s 51(2) of the CLAA with regard to Appellant
1. In my view an appropriate sentence would be
that of 12 years
imprisonment. As this sentence is substantially different from the
one meted out by the court
a
quo
,
I believe this court should intervene by setting aside the sentence
imposed by the court
a
quo
and replace it with one of 12 years imprisonment.
19.
During
the process of considering an appropriate sentence, the court
a
quo
was afforded the benefit of evidence showing that the second
appellant had accumulated a number of previous convictions. These
are:
19.1.
On
24 January 2005 he was convicted of
19.1.1 Count 1: robbery and sentenced to 3 years, the whole of which
was suspended for a period of 5 years on condition that he
was not
found guilty of the same offence during the period of suspension;
19.1.2
Count
2: possession of a weapon without a licence
19.1.3
Count
3: possession of unlicensed ammunition.
He was sentenced to 6 months for counts 2 and 3
(taken together), the whole of which was suspended for a period of 3
years.
19.2
On
6 June 2006 he was convicted of possession of a weapon without a
licence and sentenced to six years imprisonment.
20
The
provisions of s 51(2) of the CLAA have application in the case of
appellant 2 as well.
21
In
his case, because of his previous convictions, he was liable to be
sentenced to 20 years imprisonment. However, the court
a
quo
found substantial and compelling circumstances to depart from this
prescribed minimum sentence. It found that as he was in custody
for
over a year, together with the fact the he was a father of a minor
child, as compelling facts warranting a reduction of his
sentence to
18 years imprisonment. Strangely, the court
a
quo
refused to take precisely the same factors into account when
considering an appropriate sentence for appellant 1. In my view the
court
a
quo
committed a misdirection when it came to appellant 2. I am unable to
find any circumstances, let alone compelling and substantial
ones, to
justify a departure from the prescribed minimum sentence. He has a
previous conviction for the same or a very similar
offences, added to
that he was declared unfit to possess a firearm, yet he was convicted
in this case of being in possession of
an unlicensed firearm. His
conduct demonstrates contempt for the previous court order. Further
it evidences an unwillingness on
his part to abide by the law. In my
view a fair balance of the interests of society, the gravity of the
crime and the interest
of Appellant 2 should result in a sentence of
20 years imprisonment, that is the sentence I would have imposed.
Bearing in mind
that there is no cross-appeal before us and since we
have not given appellant 2 notice of an intention to increase his
sentence,
I believe that this court is unable to interfere with the
sentence of the court
a
quo
.
22
In
conclusion, I would dismiss his appeal against his sentence.
Order
23
The
following order is made:
23.1
The
appeals of the appellants against their convictions are dismissed.
23.2
The
appeal of appellant 2 against his sentence is dismissed.
23.3
The
appeal of appellant 1 against his sentence succeeds. The sentence of
fifteen (15) years imposed by the court
a
quo
is set aside and replaced with a sentence of twelve (12) years
imprisonment.
Vally J
Gauteng High Court, Johannesburg Local Division
I agree.
Mahalelo AJ
Gauteng High Court, Johannesburg Local Division
Appearances:
For the appellants : Adv Ms M Botha from Legal Aid South Africa
For the State Adv S H Rubin from Office of Director of Public
Prosecutions
Date of hearing : 19 March 2015
Date
of judgment : 19 March 2015
[1]
S
v Cornick and Another
2007
(2) SACR 115
(SCA) at [46]
[2]
S
v Malgas
2001
(1) SACR 469
(SCA) at [12]