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[2015] ZASCA 194
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Kekana v The State (498/2015) [2015] ZASCA 194 (1 December 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 498/2015
In
the matter between:
BUSHY
VINCENT KEKANA
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
Citation:
Kekana
v The State
(498/2015)
[2015] ZASCA 194
(1 December 2015)
Coram:
Navsa,
Cachalia, Shongwe, Tshiqi and Dambuza JJA
Heard:
11 November
2015
Delivered:
1 December 2015
Summary:
Sentencing –
Criminal Law Amendment Act 105 of 1997
– appellant aged between
16 and 18 years – sentence of life imprisonment imposed in
relation to a conviction on each
of two counts of murder – the
fact that appellant was a child at the time of the commission of the
offence ignored –
material misdirection – sentence of 20
years’ imprisonment substituted.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Polson AJ, Ranchod J and
Msimang AJ concurring, sitting as court of appeal):
(a)
The appeal against each of the two life sentences is upheld.
(b)
The order of the full court is set aside and the following order is
substituted in its place:
‘
(i)
the appeal against sentence by the first appellant is upheld only in
relation to the
sentences of life imprisonment imposed in respect of
his conviction on counts 1 and 2.
(ii)
the sentences of life imprisonment in respect of counts 1 and 2 are
set aside and
substituted with a sentence of 20 years’
imprisonment, both counts being taken together for purposes of
sentence.
(iii)
all the other sentences are confirmed.
(iv)
the order of the court below in respect of the first appellant is
consequently substituted
to read as follows:
“
1.
Accused 1 is sentenced as follows:
(a)
On counts 1 and 2, taken together for the purposes of sentence, to
20 years’
imprisonment.
(b)
On count 3, to 15 years’ imprisonment.
(c)
On count 5, to 3 years’ imprisonment.
(d)
On count 6, to imprisonment for one year.”
(e)
It is ordered that the sentences on counts 3, 5 and 6 shall run
concurrently with the sentence
of 20 years’ imprisonment in
respect of counts 1 and 2.
(f)
The effective sentence is thus one of 20 years’ imprisonment.”’
JUDGMENT
Tshiqi
JA (Navsa, Cachalia, Shongwe and Dambuza JJA concurring)
[1]
On
14 January 2005 Mr Aslam Muhamad and Mr Foster Mashimbye were gunned
down during a robbery at their business, the Ga-Raoleka
supermarket,
Thabamoopo, Lebowakgomo. They died at the scene. During the robbery
an undisclosed amount of cash was stolen. As the
four suspects fled
from the supermarket, they continued shooting indiscriminately. Mrs
Raesibe Madimetja, who resided in the neighbourhood,
was shot and
wounded on her right thigh while she stood outside her home. The
appellant, who was one of the four robbers, and Mr
Brian Poho, who
later became a state witness at the trial, were apprehended by
members of the community on the scene, and handed
over to the police.
Two other suspects, who were accused 2 and 3, at the trial, were
arrested afterwards.
[2]
The
three accused were arraigned in the circuit court of the Transvaal
Provincial Division, Polokwane on two counts of murder, one
of
robbery with aggravating circumstances, attempted murder, and the
unlawful possession of a firearm and ammunition. They were
found
guilty on all, except the attempted murder, charges.
[3]
The two murder charges fell under
Part 1
Schedule 1 of the Criminal
Law Amendment Act 105 of 1997 (the Act), in view of the fact that
they were perpetrated during the course
of a robbery with aggravating
circumstances. The three accused were sentenced to life imprisonment
on each of the two murder charges,
15 years’ imprisonment for
the robbery with aggravating circumstances, and three years’
imprisonment for the unlawful
possession of a firearm, and one years’
imprisonment for the unlawful possession of ammunition. It was
ordered that the sentences
in respect of the other counts run
concurrently with the sentences imposed in respect of counts one and
two. They were thus sentenced
to an effective sentence of life
imprisonment. Subsequently, they applied for and were granted leave
to appeal to the full court
of the Gauteng Provincial Division of the
High Court against their sentences.
[4]
That court dismissed their appeals. The appellant, whose appeal is
the only one before us, now appeals to this court against
the full
court’s confirmation of his life sentence.
[5]
Sentencing rests pre-eminently in the discretion of the trial court
and an appeal court cannot, in the absence of a material
misdirection
by the trial court, interfere with the sentence only because it is
not one that the court itself would have imposed.
[1]
To do so would amount to usurping the trial court’s
discretion
[2]
and it would erode
the discretion entrusted to the trial court.
[3]
However, notwithstanding the absence of a material misdirection, an
appeal court may be justified in interfering with the sentence
imposed by the trial court when the disparity between the sentence of
the trial court and that which the appellate court would
have imposed
is so marked that it can properly be described as shockingly,
startlingly or disturbingly inappropriate.
[4]
[6]
The only issue in this appeal is whether the effective life sentence
imposed on the appellant, despite his youthfulness, is
liable to be
set aside. In this regard it appears that both the trial court and
the full court were under the mistaken impression
that the appellant
had turned eighteen when the crimes were committed. They thus assumed
that they were obliged to impose the maximum
penalty of life
imprisonment, unless there were substantial and compelling
circumstances justifying the imposition of a lesser
sentence. They
held that there were no substantial and compelling circumstances.
[7]
The record shows that appellant was 17 years and some 10 months
old at the time, having been born in March 1987.He thus
had to be
sentenced in terms of s 51(1) read with s 51(3)
(b)
of the Act. Section 51(3)
(b)
,
which is applicable to children between the ages of 16 and 18. In
sentencing the appellant as if he had already attained the age
of
eighteen at the time of the commission of the offence, both courts
ignored the provisions of the subsection and thus misdirected
themselves materially. This court must therefore consider the
sentence afresh.
[8]
The seriousness of the crimes cannot be understated. The
appellant and his co-accused committed two callous murders during
a
daring robbery. After shooting the two deceased the appellant and his
co-accused fled, shooting indiscriminately in total disregard
for the
safety of people in the vicinity. Ms Madimetja was seriously
injured during the incident.
[9]
The appellant played a leading and active role before and during the
commission of the offence. The group met at his home to
plan the
robbery before departing to the crime scene. He was in possession of
a firearm, was first to enter the supermarket, and
fired shots whilst
fleeing the scene. But for the fact that he ran out of ammunition,
more people could have been injured or killed.
He was still in
possession of the firearm when he was arrested. I accept the trial
court’s observation that his actions could
not be described as
those of someone who was under the influence of his older co-accused.
[10]
But our courts are enjoined by the Constitution to take the
youthfulness of an accused as a factor in mitigation of sentence.
[5]
They are required to always bear in mind that such offenders are in
fact young and may be rehabilitated and become responsible
members of
the community in future.
[6]
Their participation in crimes may well stem from immature judgment,
from as yet unformed character, from youthful vulnerability
to error
and impulse.
[7]
[11]
It is of course worrisome that some of the most gruesome and horrific
crimes are perpetrated by youth, but in spite of that
reality, a
presiding officer faced with the sentencing of a young offender must
be guided by certain principles including
the
principle
of proportionality, the best interests of the child, adherence to
recognised international law principles, the least possible
restrictive deprivation of the child’s liberty, which should be
a measure of last resort and restricted to the shortest possible
period of time
[8]
having a
greater emphasis on the rehabilitation as mentioned above. These
principles have now been incorporated in the
Child Justice Act 25 of
2008
, which came into operation on 1 April 2010. For child offenders
between the ages of 14 and 18, the maximum term of imprisonment
is
now 25 years.
[12]
In addition to his age the appellant had spent two years and eight
months in custody before he was sentenced. This must be
taken into
account in arriving at an appropriate sentence. In all the
circumstances a term of 20 years’ imprisonment is appropriate.
[13]
In the result:
(a)
The appeal against each of the two life sentences is upheld.
(b)
The order of the full court is set aside and the following order is
substituted in its place:
‘
(i)
the appeal against sentence by the first appellant is upheld only in
relation to the
sentences of life imprisonment imposed in respect of
his conviction on counts 1 and 2.
(ii)
the sentences of life imprisonment in respect of counts 1 and 2 are
set aside and
substituted with a sentence of 20 years’
imprisonment, both counts being taken together for purposes of
sentence.
(iii)
all the other sentences are confirmed.
(iv)
the order of the court below in respect of the first appellant is
consequently substituted
to read as follows:
“
1.
Accused 1 is sentenced as follows:
(a)
On counts 1 and 2, taken together for the purposes of sentence, to
20 years’
imprisonment.
(b)
On count 3, to 15 years’ imprisonment.
(c)
On count 5, to 3 years’ imprisonment.
(d)
On count 6, to imprisonment for one year.”
(e)
It is ordered that the sentences on counts 3, 5 and 6 shall run
concurrently with the sentence
of 20 years’ imprisonment in
respect of counts 1 and 2.
(f)
The effective sentence is thus one of 20 years’ imprisonment.”’
_____________
Z
L L Tshiqi
Judge
of Appeal
APPEARANCES
For
Appellant:
L M Manzini
Instructed
by:
Justice Centre, Pretoria
Justice Centre,
Bloemfontein
For
Respondent:
S R Sibara
Instructed by:
Director of Public
Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein
[1]
S v Malgas
2001 (2) SA 1222
(SCA) para 12.
[2]
Ibid para 12.
[3]
S v Rabie
1975 (4) SA 855 (A).
[4]
S v Malgas
(above) para 12.
[5]
Section 28(1)(
g
)
of the Constitution of the Republic of South Africa, 1996.
[6]
In
Centre
for Child Law v Minister of Justice and Constitutional Development &
others (NICRO as amicus curiae)
2009 (2) SACR 477
(CC) paras 28-31 and 63.
[7]
Ibid
para 3.
[8]
S v B
2006 (1) SACR 311
(SCA) para 24.