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[2016] ZAGPJHC 137
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Stuurman and Others v S (A374/14) [2016] ZAGPJHC 137 (2 June 2016)
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Note: Certain personal/private details of parties or witnesses
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
A374/14
DATE:
2 JUNE 2016
In
the matter between:
DINZE,
JOSEPH
STUURMAN
.....................................................................................
First
Appellant
NONDWANGU,
LUWANDA
SIMON
......................................................................
Second
Appellant
MHLONGACALA,
MXOLISI
FLOID
......................................................................
Third
Appellant
And
THE
STATE
............................................................................................................................
Respondent
Coram:
Mabesele, Mudau JJ and Kolbe AJ
Judgments:
Kolbe AJ with Mudau J concurring [1-38]
Mabesele
J dissenting [39-53]
Date
of Hearing: 18 March 2016
Judgment
Delivered: 02 JUNE 2016
Court
a quo
Court
No. SS253/00
DPP
Ref: JPV2000/0216
ORDER
On
appeal from this Division of the High Court, against sentence imposed
by the Honourable Du Toit (J):
The
appellants’ appeal against their sentences are upheld. The
sentences are set aside and replaced with the following:
1.
Appellant No.1 is sentenced as follows:
1.1
Count 1: Life Imprisonment ;
1.2
Count 2: 10 years imprisonment ;
1.3
Count 3: 3 years imprisonment;
1.4
Count 4: 2 years imprisonment.
2.
Appellant No’s 2 and 3 are sentenced as
follows:
2.1
Count 1: 20 years imprisonment;
2.2
Count 2: 10 years imprisonment;
2.3
The sentences imposed in respect of Counts 1 and 2 are ordered to be
served concurrently.
3.
All of the above sentences are antedated to 5 June 2005 in terms of
the provisions of S 282 of the CPA;
JUDGMENT
KOLBE
AJ (MUDAU J Concurring)
[1]
This matter came before us as part of the
delayed appeals project
.
[2]
The Appellants were as long ago as 5 June
2005 convicted and sentenced by Du Toit AJ sitting with assessors
(“the Court
a quo”
)
and on 26 November 2010 granted leave to appeal against the sentences
imposed by Claassen J
[3]
We have been informed from the Bar that there are a number of pending
appeals in respect of which the records are defective
and cannot be
reconstructed. This is such a matter.
[4]
We are indebted to Mr Karam who appeared on
behalf of the Appellants for his assistance and helpful approach. As
the appeal is against
the sentences imposed only, we were requested
to dispose of the matter on the record as it stands.
[5]
The record is incomplete in that all evidence relating to the merits
as well as all exhibits are missing. The record placed
before us
consists of the indictment, the judgment of the Court
a quo
on
the merits and the record of the proceedings relating to sentence. We
accept that the remainder of the record is lost or destroyed
and
cannot be reconstructed.
[6]
It is trite that where a record has been lost, an accused is not
ipso
facto
entitled to an acquittal. See
S v Whitney and
Another
1975 (3) SA 453
(N). We are however, mindful of the
following remarks in
S v Marais
1966 (2) SA 514
(T) on page
517 A-B:
“
If
during a trial anything happens which results in prejudice to an
accused of such a nature that there has been a failure of justice,
the conviction cannot stand. It seems to me that if something
happens, affecting the appeal, as happened in this case, which
makes
a just hearing of the appeal impossible, through no fault on the part
of the Appellant, then likewise the Appellant is prejudiced,
and
there may be a failure of justice. If this failure cannot be
rectified, as in this case, it seems to me that the conviction
cannot
stand, because it cannot be said that there has not been a failure of
justice.”
[7]
In this matter, as already mentioned, leave
was granted to appeal against the sentences imposed only. The
Court
a quo
’
s
judgment on the merits is comprehensive, contains a detailed summary
of the evidence and fully reflects the Court’s reasoning
in
convicting the appellants. We agree with Mr Karam, that the matter
can and ought to, in the interests of justice, be disposed
of
on the existing record, provided of course that the appellants are
not prejudiced in any manner whatsoever by reason of the
incompleteness of the record.
[8]
The appellants were convicted on one count of murder, as well as one
count of robbery with aggravating circumstances as defined
in Section
1 of the Criminal Procedure Act 51 of 1977 (“the CPA”).
[9]
Appellant No. 1 was in addition convicted of unlicensed possession of
a firearm in contravention of Section 2 of Act 75 of 1969
as well as
the unlawful possession of ammunition in contravention of Section 36
of the same Act.
[10]
Appellant No. 1 was in addition convicted of unlicensed possession of
a firearm in contravention of Section 2 of Act 75 of
1969 as well as
the unlawful possession of ammunition in contravention of Section 36
of the same Act.
[11]
As far as Appellant No. 1 is concerned, there was an additional order
that as far as may be relevant, the sentences imposed
should run
concurrently. In view of the imposition of the sentence life
imprisonment, such an order was of course superfluous in
view of the
provisions of S 39(2)(a)(i) of the Correctional
Services Act, Act No. 111 0f 1998.
[12]
This brings us to the grounds of appeal which can be summarised as
follows:
[12.1]
In imposing sentence, the Court
a quo
invoked the mandatory
minimum sentences provided for in s. 51 of the Criminal Law Amendment
Act, Act No. 105 of 1997 (“the
minimum sentence legislation”)
in terms of which the Court was obliged, in respect of Count 1 to
impose life imprisonment
and in respect of Count 2, 15 years’
imprisonment unless satisfied that substantial and compelling
circumstances existed
which justified the imposition of lesser
sentences.
[13]
Mr Karam referred us to the judgments in
S v Legoa
2003 (1)
SACR 13
(SCA),
S v Ndlovu
2003 (1) SACR 331
(SCA),
S v
Makatu
2006 (2) SACR 582
(SCA),
S v Mashinini and Another
2012
(1) SACR 604
(SCA) and
S v Kolea
2013 (1) SACR 409
(SCA), in
which judgments the principle was laid down that a fair trial to
which every accused is entitled, will generally demand
that the
State’s intention to eventually request the Court to invoke the
provisions of the minimum sentence legislation,
should be brought to
the attention of the accused either by referring to the legislation
in the indictment or in some other way.
[14]
This principle was confirmed in the recent judgment of the Supreme
Court of Appeal
Zwane v The State
(700/15)
[2016] ZASCA 19
delivered on 17 March 2016.
[15]
On a perusal of the record as it stands, it is clear that there is no
reference to the minimum sentence legislation either
in the
indictment or the judgment by the Court
a quo
.
[16]
As the record of the proceedings on the
merits is lost it cannot be determined whether or not the appellants
had been made aware
thereof that the State would ask the Court to
invoke those provisions. In any event, had this happened, one would
have expected
a reference thereto in the judgment.
[17]
Be this as it may, as already mentioned, the appellants cannot be
prejudiced by the fact that the record is defective and we
therefore,
for purposes of this appeal, accept that the appellants had not been
forewarned of the possibility that they may be
sentenced in terms of
the minimum sentence legislation.
[18]
Consequently, the Court
a quo
’s sentencing of the
appellants in terms of the minimum sentence legislation, constitutes
a misdirection entitling this Court
to set aside the sentences
imposed by the Court
a quo
and to consider the imposition of
appropriate sentences afresh.
[19]
The personal circumstances of the Appellants are on record. All three
Appellants were first offenders and incarcerated for
a period of 2½
years pending finalisation of the matter.
[20]
Appellant No.1 has reached a standard 6 (grade 8) level of education
and engaged in temporary work at the time of the commission
of the
offences. Appellant No.2 had no fixed employment and engaged in
doing temporary manual work. Appellant No.3
has a matric and
was gainfully employed manufacturing power lines at the time of the
commission of the offences.
[21]
The offences were committed under the following circumstances:
On Monday morning, 31 January 2000 at 06:00, the appellants
together
with a fourth person, surrounded the deceased in the street and
robbed him of his cellphone whereafter Accused No. 1 shot
the
deceased from behind and killed him.
[22]
Not only was the robbery of a cell phone with the use of a fire arm
by a group of persons, an horrendous crime, and a cancer
in our
society, but the gratuitous killing of the deceased shocking to say
the least.
[23]
In our view the nature of the offences and the interests of society
call for sentences that would constitute punishment commensurate
with
the nature of the crimes and would serve as a deterrent for other
would be offenders. This requirement should of course be
balanced
with the appellants’ personal circumstances and blended with a
measure of mercy.
[24]
In our view, the appellants, as far as the murder charge is
concerned, ought to be treated differently. Although all three
appellants, by reason of having acted in furtherance of common
purpose, were correctly convicted of murder, appellant No. 1, the
actual shooter, was convicted on the basis of having had
dolus
directus
in respect of the death of the deceased and appellants
Nos 2 and 3 on the basis of having had
dolus eventualis
in
respect of his death.
[25]
In our view, the only appropriate sentence that can be imposed in
respect of appellant No1’s gruesome and gratuitous
killing of
the deceased is one of life imprisonment.
[26]
The question now arises whether it would be permissible to impose a
sentence of life imprisonment, having found that the Court
a quo’s
imposition of that sentence by invoking the provisions of the minimum
sentence legislation constituted a misdirection.
[27]
In our view, the fact that the provisions of the minimum legislation
cannot be invoked, does not detract from the general discretion
conferred upon a Court by the CPA with regards to the imposition of
appropriate punishment.
[28]
The nature of punishments that may be imposed by a Court are set out
in s 276(1) of the CPA, the relevant portion of which
reads as
follows:
“
(b)
Imprisonment, including imprisonment for life …...”
[29]
Ito s 283 of the CPA, a Court, in
sentencing an accused, retains a discretion to impose a lesser
sentence than the sentence for
which the accused may be liable save
insofar as the minimum sentence legislation may be applicable.
[30]
There is a clear a difference in a Court’s approach when
imposing life imprisonment in the exercise of its discretion
and
imposing life imprisonment by invoking the provisions of s 51 of the
minimum sentence legislation.
[31]
S 51(1) of the minimum sentence legislation reads as follows:
“
Notwithstanding
any other law but subject to sections (3) and (4) a regional court or
a high court
shall
sentence
a person it has convicted …
(emphasis
added)
to
the prescribed sentences”
.
[32]
The correct approach to be adopted by a Court in the event of the
minimum sentence legislation being applicable is summarised
as
follows in the judgment of
S v Malgas
2001 (1) SACR 469
(SCA)
on 480, paragraph [20]:
“
The
best one can do is to acknowledge that one is obliged to keep in the
forefront of one’s mind that the specified sentence
has been
prescribed by law as the sentence which must be regarded as
ordinarily appropriate and that personal distaste for such
legislative generalisation cannot justify an indulgent approach to
the characterisation of circumstances as substantial and compelling.”
[33]
And on page 482 G that:
“
The
ultimate impact of all the circumstances relevant to sentencing must
be measured against the composite yardstick (“substantial
and
compelling”) and must be such as cumulatively justify a
departure from the standardised response that the legislature
has
ordained.”
[34]
When the provisions of the minimum sentence legislation are invoked,
there is an onus on an accused to show substantial and
compelling
circumstances which would justify the imposition of a lesser sentence
than the relevant prescribed minimum sentence
which a Court is
obliged to impose should an accused fail to show such circumstances.
[35]
In the event of a Court considering an appropriate sentence in the
exercise of its discretion in the manner provided for in
sections
276(1)(b) and 283(1) of the CPA, no such onus rests on an accused and
the ordinary factors relevant to the imposition
of sentence are
considered.
[36]
We therefore find that the fact that the provisions of the minimum
sentence legislation may not be invoked, does not detract
from a
Court’s general discretion, conferred upon it by the CPA, to
impose an appropriate sentence.
[37]
Having carefully considered the personal circumstances of the
appellants, their roles in the commission of the crimes, the
nature
of the crimes committed, the prevalence thereof, the interests of the
community, where applicable the period spent in custody
awaiting
finalisation of the trial and the cumulative effect of the sentences
and showing a measure of mercy the following order
is made:
[38]
The appellants’ appeal against their sentences are upheld. The
sentences are set aside and replaced with the following:
3.
Appellant No.1 is sentenced as follows:
1.5
Count 1: Life Imprisonment ;
1.6
Count 2: 10 years imprisonment ;
1.7
Count 3: 3 years imprisonment;
1.8
Count 4: 2 years imprisonment.
4.
Appellant No’s 2 and 3 are sentenced as
follows:
2.1
Count 1: 20 years imprisonment;
2.2
Count 2: 10 years imprisonment;
2.3
The sentences imposed in respect of Counts 1 and 2 are ordered to be
served concurrently.
3.
All of the above sentences are antedated to 5 June 2005 in terms of
the provisions of s 282 of the CPA;
MABESELE
J
[39]
This appeal forms part of the Delayed Criminal Appeals Project
[40]
I had the opportunity to read the judgment and order made by Kolbe AJ
with Mudau J concurring. I respectfully disagree with
their judgement
and order.
[41]
The appellants appeal against the sentence of life imprisonment for
murder (count1) and fifteen years for robbery with aggravating
circumstances (count 2) imposed on each of them.
[42]
Each appellant raised the following issues:
(i)
They were not charged in terms of the minimum
sentences legislation and further that the learned acting judge did
not advise them
of the fact that they faced minimum sentences, if
convicted, or enquired from their respective counsel as to whether
counsel were
aware of same and had explained same to them.
(ii)
In the alternative, the appellants argue that the
personal circumstances of each of them, cumulatively considered,
constitute substantial
and compelling factors, warranting a departure
from the prescribed minimum sentences on counts 1 and 2.
[43]
On 31 January 2000 the appellants, acting in furtherance of a common
purpose, shot and killed the deceased and robbed him of
his cell
phone.
[44]
The indictment reads as follows:
“
Die
Direkteur van Openbare Vervolgings van die Witwatersandse Plaaslike
Afdeling van die Hoogeregshof van Suid Afrika, wat vir en
namens die
Staat vervolg stel die Agbare Hof hiermee in kennis dat:
1.
DINZE, JOSEPH STUURMAN
‘
n
22-jarige man, woonagtig te D….. t….. V…. T…..
2.
NONDWANGU, LUWANDA SIMON
‘
n
26-jarige man, woonagtig te A 5…. T…… V……,
T…..
3.
MHLONGACALA, MXOLISI FLOID
‘
n
28-jarigte man, woonagtig te D….. T….. V……
T…….
skuldig
is aan die volgende misdrywe:
1.
Moord
2.
Roof met verswarende omstandighede soos bedoel
in artikel 1 van Wet 41 van 1977.
3.
Oortreding van artikel 2 gelees met artikel 1
en 39 van Wet 75 van 1969 (slegs beskuldigde 1)
4.
Oortreding van artikel 36 gelees met artikels 1
and 39 van Wet 75 van 1969 (slegs beskuldigde1)
AANKLAG
1
Deurdat
op of omtrent 31 Januarie 2000 en te of naby Brackendowns in die
distrik van Alberton die beskuldiges wederregtelik en opsetlik
vir
Stephanus Francis Smit gedood het.
AANKLAG
2
Deurdat
op of omtrent die datum en te of naby die plek in aanklag 1 genoem,
die beskuldiges wederregtelik en opsetlik ver Stephanus
Francois Smit
aangerand het en toe daar met geweld ʼn sellulere foon, sy eiedom
of in sy regmatige besit van hom geneem het.
AANKLAG
3 (SLEG BESKULDIGDE 1)
DEURDAT
op of omtrent die datum en te of naby die plek in Aanklag 1 genoem,
die beskuldigde wederregtelik in besit was van ‘n
7.62 mm
pistol sonder dat hy die houer was van ‘n geldige lisensie om
genoemde wapen te besit
AANKLAG
4 (SLEGS BESKULDIGDE 1)
DEURDAT
op of omtrent die datum en te of naby die plek in Aanklag 1 genoem
die beskuldigde in besit was van ‘n onbekende aantal
rondtes
7.62 mm ammunsie sonder dat hy die wettige houer was van “n
vuurwapen waaruit genoemde ammunisie afgevuur kon word.
Ingeval
van skuldig bevinding versoek genoemde Direkteur van Openbare
Vervolgings vonnis teen die beskuldigdes ooreenkomstig die
reg
.”
[45]
It is apparent from the indictment that the appellants were not
charged in terms of the minimum sentences legislation is respect
of
counts 1 and 2. Secondly, there is no indication in the record
that the appellants were advised of the fact that they
faced minimum
sentences, if convicted of counts 1 and 2.
[46]
Each appellant has a clean record. The appellants were
incarcerated for a period of two and a half years pending
finalisation
of the matter.
[47]
The essential issue to be determined is whether it can be said that
the appellants had a fair trial as provided for in the
Constitution
despite the fact that minimum sentence legislation was not explained
to them.
[48]
Section 35(3) (a) of the Constitution provides that every accused
person has a right to a fair trial.
[49]
According to Mbha AJA, in S V Kolea 2013(1) SACR 409 (SCA) at 411,
the objective (behind the accused person’s right to
a fair
trial) is not only to avoid a trial by ambush, but also to enable the
accused to prepare adequately for the trial and to
decide,
inter
alia,
whether or not to engage legal
representation, how to plead to the charge and which witnesses to
call. The learned judge stated
further that, if the state
intends to rely on the minimum sentencing regime created in the Act,
this should be brought to the attention
of the accused at the outset
of the trial.
[50]
This approach had already been endorsed in SV Ndlovu 2003(1) SACR
331(SCA) wherein it was held that where the state intends
to rely
upon the sentencing regime created by the Act a fair trial will
generally demand that its intention be pertinently brought
to the
attention of the accused at the outset of the trial. Mpati JA, (on
page 337, par. 14) said the following:
“
In
the circumstances of this case it cannot be said that the
appellant suffered no prejudice from the magistrate’s failure
to warn him of the consequences of his findings, should he make such
as a finding…… By invoking the provisions of
the Act
without it having been brought pertinently to the appellant’s
attention that this would be done rendered the trial
in that respect
substantial and compelling reason why the prescribed sentence ought
not to have been imposed…..”
[51]
It was for that reason that the sentence of 15 years imprisonment
that was imposed on the appellant for possession of semi-automatic
firearm was set aside and replaced with a sentence of 3 years
imprisonment.
[52]
In the present case the appellants were not warned of the
consequences of the charges they were facing in counts 1 and 2. That,
in my view, rendered their trial unfair, thereby justifying a
departure from the prescribed sentences in the said counts. The
result is that I would alter sentences in counts 1 and 2 and take
into account, also, the record of each appellant and the period
they
spent in prison, awaiting trial.
[53]
For these reasons, I would make the following order:
1.
Each appellant is sentenced to a period of 20
years imprisonment on count1, 12 years imprisonment on count 2; 5
years of 12 years
imprisonment on count 2 in respect of each
appellant should run concurrently with the sentence of 20 years
imprisonment.
2.
The sentences in paragraph (1) above should be
backdated to 5 June 2005.
MABESELE
J
MUDAU
J
KOLBE
AJ
APPEARANCES
On
Behalf of the Appellants: W.A Karam
Instructed
By:
Legal Aid South Africa, Johannesburg
On
Behalf of the Respondent:
L.R Surendra
Instructed
By:
Director of Public Prosecutions,
Gauteng
Local Division, Johannesburg