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2015
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[2015] ZAGPJHC 308
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Tibane v S (A102/2014) [2015] ZAGPJHC 308 (11 December 2015)
THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NUMBER: A102/2014
DATE OF HEARING: 3
DECEMBER 2015
DATE OF JUDGMENT: 11
DECEMBER 2015
In the matter between:
TIBANE,
MARKUS
..................................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM: Avvakoumides AJ and
Hundermark AJ
J U D G M E N T
AVVAKOUMIDES, AJ
[1] The Appellant was charged with the
following charges in the Kempton Park Regional Court:
• Count 1 – possession of
suspected stolen property, contravention of section 36 of the General
Amendment Act 62 of 1955,
namely a Toyota Hilux bakkie.
• Count 2 – possession of
suspected stolen property, contravention of section 36 of the General
Amendment Act 62 of 1955,
namely a Toyota Siyaya micro bus.
• Count 3 – possession of
suspected stolen property, contravention of section 36 of the General
Amendment Act 62 of 1955,
namely a Toyota Dyna engine.
• Count 4 – possession of
suspected stolen property, contravention of section 36 of the General
Amendment Act 62 of 1955,
namely a credit card from Standard Bank.
• Count 5 – fraud in respect
of an identity document.
• Count 6 – fraud in respect
of a death certificate.
[2] The Appellant pleaded not guilty to
all the charges and was convicted of charges 1, 2, 5 and 6. The
Appellant was sentenced
as follows:
• In respect if count 1 – 6
years’ imprisonment.
• In respect if count 2 – 7
years’ imprisonment.
• In respect if count 5 – 10
years’ imprisonment.
• In respect if count 6 – 10
years’ imprisonment.
[3] The trail court ordered that the
sentences in respect of counts 5 and 6 are to run concurrently,
making the effective sentence
one of 23 years. The appeal lies only
against the sentence of the trial court.
[4] In S v Obisi
2005 (2) SACR 350
WLD,
S v Rabie
1975 (4) SA 855
(A) at 857 D-E and S v De Oliveira
1993 (2)
SACR 59
A at 667, it was held that the test on appeal is not whether
or not the court sitting on appeal would have imposed another form
of
punishment, but rather whether the trial court exercised its
discretion properly and reasonably when imposing sentence. I am
mindful of the decision in S V De Jager
1965 (2) SA 616
(A) at 628
where the discretion of the appeal court was described as not having
a general discretion to ameliorate the sentences
of trial courts but
that it is the trial court that has such discretion.
[5] It appears from the judgment of the
court below that the trial court did indeed take into account the so
called general factors
set out in S v Malgas
2001 (1) SACR 469
(SCA)
in sentencing. The question arises whether there are factors
justifying intervention by this court. The trial court, in my
view,
and in respect of count 5, overemphasized the crime by stating that
that Appellant had committed a series of transactions
whereas the
conviction was only in respect of one count. In respect of count 6
the trial court stated that the Appellant had done
nothing insofar as
the death certificate is concerned but that it might have been
presumably been handed to an insurer. There was
no evidence that the
Appellant had used the death certificate. In these two instances I am
of the view that the trial court erred
in its sentencing of the
Appellant and misdirected itself.
[6] Counsel for the Appellant submitted
that the cumulative effect of the sentences is shockingly harsh. I
have had regard to the
case of S v Robiyana & Others
2009 (1)
SACR 104
(Ck) in which the following was held:
“To the extent that the
cumulative effect of the sentence might appear to be ‘shocking’,
this result is the inevitable
consequence of the appellant’s
own criminal activities, purposefully executed with contemptuous
disregard for the law and
rights of others. When an accused commits a
number of criminal offences it is an inevitable consequence that the
aggregates of
the sentences that must accrue on each count will
result in a total sentence which appears ‘shocking’.
This, however,
does not mean that it is to be classified as shocking.
A sentence is only to be classified as
shocking if it is disproportionate to the crime in question. Whereas
a court is required
to be mindful of the cumulative effect of
sentences, it is precluded from reducing the sentence on each or any
one count to the
extent of trivialising the gravity of the count in
question.”
[7] Mindful of the Robiyana decision I
am of the view that the cumulative effect of the sentencing is
disproportionate to the crimes
in respect of counts 5 and 6. Under
the circumstances, I am of the view that, in respect of counts 5 and
6, an appropriate sentence
should be imprisonment for a period of 3
years on each of these counts. I find it unnecessary to interfere
with the sentences in
respect of counts 1 and 2.
[8] Accordingly the appeal is upheld
and the Appellant is sentenced as follows:
[8.1] In respect of counts 1 and 2 the
sentences are confirmed as 6 and 7 years respectively.
[8.2] In respect of counts 5 and 6 the
Appellant is sentenced to imprisonment of 3 years on each count.
[8.3 The sentences in respect of counts
5 and 6 are to run concurrently with the sentences in respect of
counts 1 and 2.
[8.4] The effective sentence of the
Appellant is thus 13 years.
[8.5] The sentence is antedated to 28
February 2012 in terms of section 282 of the Criminal Procedure Act
51 of 1977, being the
date upon which the sentences were imposed.
G. T. AVVAKOUMIDES
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
I agree:
P. R. HUNDERMARK
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
Representation for Appellant:
Counsel:E. Van der Merwe
Instructed by:K. Nel Attorneys
Representation for the Respondent:
Counsel:T. P. Mpekana
Instructed by:Director of Public
Prosecutions