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[2015] ZASCA 140
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Tlhako v The State (129/2015) [2015] ZASCA 140 (30 September 2015)
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SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE
NO: 129/2015
Not
Reportable
In
the matter between:
GILBERT
NGWAKO TLHAKO
APPELLANT
and
THE STATE
RESPONDENT
Neutral
citation:
Tlhako v The State
(129/15)
[2015] ZASCA 140
(30 September 2015).
Coram:
Bosielo,
Pillay, Dambuza JJA et Van der Merwe, Gorven AJJA
Heard:
26
August 2015
Delivered:
30 September 2015
Summary:
Sentence – Imposition in terms of
Criminal Law Amendment Act 105 of 1997
– where State intends to
rely on sentencing regime created by Act, constitutional right to a
fair trial will generally call
for such intention to be brought to
the attention of accused timeously to enable proper conduct of
defence – failure to do
so a misdirection
ORDER
On appeal
from:
Gauteng
Division
,
Pretoria (Jordaan J et De Vos AJ sitting as court of appeal)
The
appeal is allowed and the order of the court below is set aside and
substituted with the following:
‘
The
appeal succeeds and the sentences imposed by the trial court are set
aside and replaced with the following:
“
(a)
The accused is sentenced to serve a period of 10 years’
imprisonment in respect of count 5 and 10 years’ imprisonment
in respect of count 8.
(b)
The accused is declared incompetent to be in possession of a firearm.
(c)
The imposition of the sentences is ante-dated to 15 December 2003”’
JUDGMENT
Pillay JA
(Bosielo, Dambuza JJA and Van der Merwe, Gorven AJJA
concurring)
[1]
The appellant was convicted on two counts, (counts 5 and 8) of
robbery with aggravating circumstances as defined in
s 1
of the
Criminal Procedure Act 51 of 1977
on 19 November 2003 in the
Polokwane Regional Court. He was acquitted on six other counts. He
was then sentenced to 15 years’
imprisonment on each count in
terms of
s 51(2)
(a)(i)
of the Criminal Law Amendment Act 105
of 1997 (the Act). He appealed against both convictions and the
sentences to the North Gauteng
Division, Pretoria. The appeal against
convictions was dismissed, but the court below granted leave to
appeal to this court in
respect of the sentences only.
[2]
The background to the commission of count 5, is that on 18 July 2001
at about 18h55, the appellant and another, armed with a
firearm,
confronted Mr Manamela and his wife who were at their vehicle outside
their home at Seshego. They were ordered into the
back seat of the
motor vehicle and driven by the appellant and his associate to the
Seshego cemetery where they were robbed of
a cellular phone, wallet,
credit card, R50 cash and the motor vehicle. The appellant and his
fellow robber then fled the scene
with their loot. They left their
victims at the Seshego cemetery. The motor vehicle was recovered a
day later.
[3]
Regarding count 8, on 11 August 2001 at about 21h00, Mr Sebola was
sitting in his motor vehicle and talking to Ms Madiba in
front of her
house also at Seshego. A gang consisting of the appellant and two
others, armed with firearms, confronted them. Mr
Sebola and Ms Madiba
submitted to the obvious threat and were taken in his motor vehicle
by the gang to the Bloodriver Cemetery.
There the gang robbed them of
a number of items valued in excess of R6 500 as well as Mr Sebola’s
motor vehicle. They left
their victims at the cemetery and drove off
in the motor vehicle, which was recovered with some of the other
items a few weeks
later.
[4]
After conviction the magistrate sentenced the appellant to an
effective 30 years’ imprisonment having applied the Act.
When
he appeared in the magistrates’ court, the appellant was not
charged on the basis that in the event of him being convicted,
the
provisions of the Act would be invoked. Neither was he at any time
during the course of the trial informed or alerted to that
possibility. The court below did not make anything of this but
granted leave to appeal to this court on the basis that the
cumulative
effect of the sentences might be found to be too harsh.
[5]
It was contended on behalf of the appellant that the magistrate
should not have sentenced the appellant in terms of the Act
since the
appellant was not warned, at any stage of the proceedings, of any
intention to invoke the Act nor did the charge sheet
make any mention
thereof. It was submitted that this rendered the trial unfair and the
court below ought to have reconsidered the
sentence, which it failed
to do.
[6]
It was conceded on behalf of the State that the application of the
provisions of the Act was indeed a misdirection in the circumstances.
It was however submitted that this was insignificant since the
effective sentence of 30 years’ imprisonment was in any event
appropriate. The State therefore supported the sentence and submitted
that this court should confirm it.
[7]
In
S v Legoa
(33/2002)
[2002] ZASCA 122
;
2003 (1) SACR
13
at 22G-H, Cameron JA pointed out that:
‘
The
Constitutional Court has emphasised that under the new constitutional
dispensation, the criterion for a just criminal trial
is “a
concept of substantive fairness which is not to be equated with what
might have passed muster in our criminal court
before the
Constitution of the Republic of South Africa Act 108 of 1996 came
into force”. The Bill of Rights specifies that
every accused
has a right to a fair trial. This right, the Constitutional Court has
said, is broader than the specific rights set
out in the sub-sections
of the Bill of Rights’ criminal trial provision. One of those
specific rights is “to be informed
of the charge with
sufficient detail to answer it”. What the ability to “answer”
a charge encompasses this case
does not require us to determine. But
under the constitutional dispensation it can certainly be no less
desirable than under the
common law that the facts the State intends
to prove to increase sentencing jurisdiction under the 1997 statute
should be clearly
set out in the charge-sheet.’
He
was reluctant to lay down any general rule that where the State
intended to rely on the Act in the event of a conviction on a
charge
listed in Schedule 2 of the Act, specific reference to it must be
incorporated into the charge sheet. He furthermore cited
[1]
with approval the following translation from the Afrikaans text in
S
v Seleke en andere
1976 (1) SA 675
(T) at
682H:
“
To
ensure a fair trial it is advisable and desirable, highly desirable
in the case of an undefended accused, that the charge sheet
should
refer to the penalty provision. In this way it is ensured that the
accused is informed at the outset of the trial, not only
of the
charge against him, but also of the State’s intention at
conviction and after compliance with specified requirements
to ask
that the minimum sentence in question at least be imposed.”
See:
S v Ndlovu
(75/2002)
[2002] ZASCA 144
;
2003 (1) SACR 331
at
337A-B;
S v Makutu
2006 (2) SACR 582
(SCA))
[8]
The rationale behind this passage as I understand it, is this: The
accused person has a constitutionally protected right to
a fair
trial, which includes the sentencing process. When he or she is
confronted with a charge(s), he or she must be placed in
a position
to understand exactly the case he/she has to meet so that the
defence, if any, can be conducted properly. Implicit herein
is also
the option of pleading guilty. The failure to alert the accused of
the sentencing regime intended to be relied upon, precludes
the use
of the Act. Applying the Act in such circumstances would, in my view,
constitute a misdirection.
[9]
While Cameron JA alluded to an unfair trial, it is clear that he was
referring only to
is
the sentencing process.
Consequently substantial unfairness in this regard would render the
sentencing process and therefore the
sentence unfair. As a result it
is not the whole trial which is rendered unfair but only sentence.
Absent any notice, the Act could
not and should not have been
applied. By doing so, the sentencing process was rendered
substantially unfair and the magistrate
thereby misdirected himself.
[10]
The effective period of 30 years’ imprisonment is extremely
harsh, shocking and disturbing. Where it is necessary
to punish an
offender for multiple crimes, the aggregate of the effective
punishment imposed should always be borne in mind and
where
appropriate, ameliorated. This is especially so where the punishment
imposed is one of imprisonment. There is generally a
threshold beyond
which further incarceration serves no purpose. This is one such
instance. The court below was therefore entitled
to and should have
intervened on that ground alone. It failed to do so. It therefore
leaves this court at large to consider the
sentences afresh.
[11]
At the time of sentence, the appellant was 35 years old. He admitted
to one previous conviction involving possession
of stolen property in
1995. At that time, he was married and had fathered two children aged
ten and three years old respectively.
His wife was unemployed and he
supported his family. At the time of his arrest, he was gainfully
employed at Midway Bricks earning
R1 200 per month. So much for his
personal circumstances. The victims did not sustain any serious
bodily harm during their ordeals.
Aside from this, nothing else which
could be regarded as remotely mitigating was submitted. Being over 10
years old, I do not propose
to attach too much weight to his previous
conviction.
[12]
On the other hand he was part of a gang of robbers who in the two
aforementioned episodes of his criminal life,
kidnapped innocent
people and on each occasion took them to a cemetery at night - in
itself a traumatic experience for most people.
There the appellant
and his fellow robbers looted their victims of various items and
their respective motor vehicles – on
both occasions at gun
point. This is precisely what the legislature, guided by the input of
society, had in mind when it ordained
specific sentences for this
type of offence. It illustrates quite clearly, society’s
abhorrence for such conduct and the
seriousness with which it is
viewed.
[13]
It is well established that in assessing an appropriate sentence, the
interests of the accused, the interest of
society and the nature of
the offence need to be balanced as against each other. The
appellant’s personal circumstances do
not constitute special or
outstanding qualities. On the other hand, the frequency with which
this type of crime occurs and the
repugnance that society has
continuously expressed in this regard call for the interests of the
appellant to yield to the interest
of society which includes the
deterrence component. In this case, the aggravating circumstances far
outweigh the mitigation and
overall, emphasising the interests of
society would indeed be in order so that any would-be offender is
deterred from committing
such crimes. While the sentences must be
blended with some mercy, they must also reflect the seriousness of
the crimes involved.
Indeed these crimes and the way they were
executed demand stern and decisive sanction but not so harsh so as to
destroy the appellant.
As is clear from the above, the appeal must
succeed.
[14]
It was submitted that the sentences which I intended to impose should
be ordered to run concurrently. Having considered
this, I have come
to the conclusion that it would be inappropriate to do so in these
circumstances. First because the two offences
are quite distinct from
each other having been committed at different places, against
different victims, and on different dates.
Second as can be seen
above, the appellant has already benefitted from reductions of the
sentences and any further decrease would
render the effective
sentence too lenient and therefore inappropriate.
[15]
In the result the following order is made:
The
appeal is allowed and the order of the court below is set aside and
substituted with the following:
‘
The
appeal succeeds and the sentences imposed by the trial court are set
aside and replaced with the following:
“
(a)
The accused is sentenced to serve a period of 10 years’
imprisonment in respect of count 5 and 10 years’ imprisonment
in respect of count 8.
(b)
The accused is declared incompetent to be in possession of a firearm.
(c)
The imposition of the sentences is ante-dated to 15 December 2003”’
R Pillay
Judge of Appeal
Appearances
:
For
Appellant:
L M Manzini
Instructed by:
Pretoria Justice Centre, Pretoria
Bloemfontein Justice Centre, Bloemfontein
For
Respondent:
P
W Coetzer
Instructed by:
The
Director of Public Prosecutions, Pretoria
The
Director of Public Prosecutions, Bloemfontein
[1]
At 24c.