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[2014] ZASCA 44
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Director of Public Prosecutions North Gauteng: Pretoria v Gcwala and Others (295/13) [2014] ZASCA 44; 2014 (2) SACR 337 (SCA) (31 March 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
No: 295/13
In
the matter between:
THE
DIRECTOR OF PUBLIC PROSECUTIONS
NORTH
GAUTENG:
PRETORIA
...........................................................................
APPELLANT
and
SKHOSIPHI
GCWALA
...........................................................................
FIRST
RESPONDENT
ERIC
THEMBA
NTHOMBELA
......................................................
SECOND
RESPONDENT
JOSIA
NEO
MOLOI
...............................................................................
THIRD
REPONDENT
Neutral
citation:
DPP v Gcwala
(295/13)
[2014] ZASCA 44
(31 March 2014)
Coram:
Lewis, Shongwe and Saldulker JJA
Heard:
19 March 2014
Delivered:
31 March 2014
Summary:
The period spent in custody by a prisoner awaiting trial is a
factor to be taken into account in determining whether
substantial
and compelling circumstances exist such that a prescribed minimum
sentence may be departed from. There is no rule as
to how to
determine what weight is to be given to that period. Each case must
be decided having regard to all circumstances that
justify a lesser
sentence.
ORDER
On
appeal from:
North Gauteng High Court
(Circuit Local Division for the Eastern Circuit District, Middelburg,
Phatudi J sitting as court of first
instance):
1
The appeal against sentence is upheld.
2
The order of the high court in respect of sentence is set aside and
is replaced by the following:
‘
1
The accused are sentenced to 20 years of imprisonment with effect
from 30 June 2011.
2
The sentence currently being served by accused 2 is to run
concurrently with the sentence now imposed.’
JUDGMENT
Lewis
JA (Shongwe and Saldulker JJA concurring):
[1]
This is an appeal by the Director of Public Prosecutions, North
Gauteng, against sentences imposed by the North Gauteng High
Court
(Eastern Circuit District, Middleburg) on the three respondents. All
three were charged with the murder of a Mrs Thandi Mtsweni.
The State
alleged that they had unlawfully and intentionally killed her on 27
June 2007 in the district of Leslie. In the alternative,
the
respondents were charged with conspiring to murder the deceased. They
were convicted on the charge of murder and the high court
(Phatudi J)
imposed an effective sentence of 12 years’ imprisonment. I
shall deal with the full sentence in due course since
it is central
to the appeal. The appeal lies at the instance of the State, with the
leave of this court, and is against sentence
only. In giving leave to
appeal this court required the State and the respondents to address a
number of questions which I shall
set out later.
[2]
The context in which the murder occurred is, of course, germane to
the sentence. The deceased was the deputy mayor of the Govan
Mbeki
Municipality. The municipality had awarded a number of tenders to Ms
Sibongile Florence Lukhele. The deceased cancelled some
of these
tenders. Ms Lukhele decided to arrange for her to be killed. To this
end she enlisted the help of a number of people,
including one Mr
Madoda Nkambule, who was referred to throughout the trial as Madoda,
and who gave evidence in terms of
s 204
of the
Criminal Procedure Act
51 of 1977
, on the basis that if he answered questions frankly and
honestly he might be discharged from prosecution. Madoda agreed to
execute
Ms Lukhele’s mandate for a fee of R60 000 and he in
turn enlisted the aid of the three respondents. (In fact the high
court
did not discharge Madoda because he failed to answer questions
frankly and honestly, but this is not an issue that arises in the
appeal.)
[3]
The deceased, her husband and her son arrived at their home on 27
June 2007, and they alighted from their vehicle. As she went
to open
her front door she was shot several times, and died at the scene. Ms
Lukhele was charged with murder together with the
respondents.
However, she pleaded guilty to the charge and was thus tried
separately. She was sentenced to 20 years’ imprisonment.
She
agreed to give evidence at the respondents’ trial and testified
that she had conspired to murder the deceased, who had
been her
friend, with the mayor of the municipality, an officer of the South
African Police Service and others. She explained the
financial
arrangements that she had made with Madoda.
[4]
Madoda in turn testified that he had approached the three respondents
to kill the deceased. All three had attended a meeting
at his house,
and all three knew that they were mandated to kill the deceased for a
fee. After the deceased had been shot they
had informed Madoda that
the mandate was accomplished. The fee was paid. The evidence that the
three respondents were responsible
for the killing of the deceased
was corroborated by a number of other witnesses. I shall not traverse
it since the first two respondents
did not appeal against conviction
and the third respondent’s application for leave to appeal
against conviction was refused.
Suffice it to say that it was not
clear which respondent actually shot the deceased. The third
respondent claimed only to have
driven the others to the deceased’s
house. The high court found that the evidence of Madoda, in so far as
it was corroborated
by police witnesses and circumstantial evidence,
proved beyond reasonable doubt that the three respondents had a
common purpose
to murder the deceased. And as I have said,
there is no leave to appeal against their convictions. It should be
noted, however,
that the high court found all three respondents
‘guilty of conspiracy to murder and murder as charged’.
It did not
take into account that the charge of conspiracy was an
alternative to the charge of murder. But in sentencing the
respondents the
court made it clear that there was only one sentence
on one charge.
[5]
I turn then to the sentence. It read as follows:
‘
1
I sentence you to 12 years of direct imprisonment. Two years of the
period spent in custody while awaiting trial be deducted when
calculating the date upon which the sentence is to expire for
purposes of considering parole.
2 I further sentence
you to 10 years of direct imprisonment, which sentence is wholly
suspended for a period of 5 years on condition
you are not found
guilty of murder, attempted murder or conspiracy to murder during the
period of suspension.
3 This applies only
to accused 2:
This sentence is to
run concurrently with the sentence you are currently serving. [The
second respondent was, at the time of the
trial, serving a period of
five years’ imprisonment for a previous conviction.]
You are all to serve
an effective 12 years.’
[6]
In determining the sentence the trial court took a number of factors
into account: the murder was planned, and the respondents
willingly
agreed to kill a woman who was a dedicated member of the community in
which she lived and worked. They spent time and
travelled some
distance (twice) to plan and commit the offence. They received VAT
(sic) on the fee. The murder was politically
motivated.
Communities ‘have been riddled with these offences of killing
officers holding decisive positions in government
especially those
who refuse to subscribe to “corruption”’.
[7]
But, said the court, the witness who testified on behalf of the
community in which the deceased worked, Mrs Mtshweni, and who
asked
on behalf of the community that a sentence of life imprisonment be
imposed, did not convince him: sentencing is aimed, said
the court,
at punishing the offender and not at vengeance. Her evidence as to
the ways in which the deceased’s death had
affected the
community and the family was not considered any further.
[8]
The high court found that the following circumstances justified
deviation from the prescribed period of life imprisonment for
the
murder of the deceased:
‘
1
All three accused have been in custody for 4 years awaiting trial.
2 There is no
evidence before me as to who shot the deceased.
3 Accused 1 and 3
are first offenders.
4 All three are
candidates for rehabilitation.’
[9]
The high court referred to
S v Vilakazi
2009 (1) SACR 552
(SCA) para 15 which dealt with the proper approach to determining
whether there are substantial and compelling circumstances that
warrant a deviation from the minimum sentence prescribed by the
Criminal Law Amendment Act 105 of 1997
: there this court said that
‘it is incumbent upon a court in every case, before it imposes
a prescribed sentence, to assess,
upon a consideration of all the
circumstances of the particular case, whether the prescribed sentence
is indeed proportionate to
the particular offence’. But for
that, said the high court, it would have imposed life imprisonment.
Nonetheless, it took
the factors listed above as being sufficient to
impose an effective sentence of 12 years’ imprisonment instead
of the sentence
prescribed.
[10]
In refusing leave to appeal against sentence, the trial judge
explained that he had taken the four years spent in custody by
the
respondents awaiting trial into account, and had, on the submission
of defence counsel, doubled that number so that he deducted
eight
years from the sentence he would otherwise have imposed. The
submission probably has its origin in
S v Brophy & another
2007 (2) SACR 56
(W), where the court held that as a rule of thumb,
‘imprisonment while awaiting trial is the equivalent of a
sentence of
twice that length’ – a quotation from a
Canadian case,
Gravino
(70/71)
13 Crim LQ 434
(Quebec Court of
Appeal), cited also in
S v Stephen & another
1994 (2) SACR
163
(W) at 168
e-g
. The rule of thumb was not approved in
S v Vilikazi & others
2000 (1) SACR 140
(W) at 148
a-e
and this court has recently doubted its application and, in
S v
Radebe
& another
2013 (2) SACR 165
(SCA), ruled it to
be inappropriate. I shall return to the issue shortly.
[11]
On appeal, the State argues that this court should interfere with the
sentence of 22 years imprisonment, ten of which are to
be suspended,
since the trial judge materially misdirected himself in several
respects, and that the disparity between the sentences
imposed on the
respondents and the sentences that this court would have imposed are
shocking, startling and disturbingly inappropriate.
[12]
The first misdirection the State relies on is the determination that
the period of four years’ imprisonment spent in
custody while
awaiting trial was calculated by the trial court as constituting
eight years, and that that period was deducted from
the 20 year
period that the court considered appropriate. The second misdirection
is that the court effectively fixed a non-parole
period of ten years
(presumably in terms of
s 276B
of the
Criminal Procedure Act 51). The
State argues that a non-parole period should be set only in
exceptional circumstances. Thirdly, the State argues that there was
no evidence before the court that the respondents were candidates for
rehabilitation. And finally, the State argues that the trial
court,
in failing to have regard to the evidence of the witness who
testified about the consequences of the murder of the deceased,
misdirected itself.
[13]
As I have said, this court, when granting leave to appeal against
sentence, requested that the parties address certain issues.
Some of
them fall away in view of the findings to which I shall come. The
remaining two have already been settled by this court.
But I shall
set out the directions, in so far as relevant, before turning to the
way in which this court has resolved them.
[14]
The order of this court reads:
‘
(2)
On the assumption that a life sentence was the appropriate sentence
that the high court should have imposed upon each accused,
and
bearing in mind that this court has sanctioned the deduction of time
spent in custody as a substantial and compelling circumstance
for
offences contemplated in
ss 51
and
52
of the
Criminal Law Amendment
Act 105 of 1997
(
S v Vilakazi
. . . para 60;
Dlamini v S
(362/11)
[2012] ZASCA 27
March 2012), the parties are requested, in addition
to any other matter they consider relevant, to address the following
questions:
(a)
How should the period in custody be dealt with generally in cases
where a life sentence is appropriate, and in this case?
.
. .
(d)
How must a court generally and in this case deal with and give credit
to the accused for the time spent in custody before conviction
and
sentence? (
Dlamini
. . . . para 41.)’
[15]
In
S v Dlamini
, now reported in
2012 (2) SACR 1
(SCA),
Cachalia JA questioned the appropriateness of the rule of thumb
(applied by the high court in
S v Brophy
above) that the time
spent in custody awaiting trial is equivalent to twice that length
because of the harsher conditions to which
awaiting-trial prisoners
are subjected in comparison with convicted prisoners. He said,
however, that the matter had not been argued
before the court and
that he would refrain from saying anything further about the matter.
He added that the courts have not spoken
clearly on the matter.
[16]
Subsequently, in
S v Radebe
(above, handed down on 27 March,
some three weeks after leave to appeal was given in this matter) this
court held that there should
be no rule of thumb in respect of the
calculation of the weight to be given to the period spent in
detention awaiting trial. In
that case I said (paras 13 and 14):
‘
In
my view there should be no rule of thumb in respect of the
calculation of the weight to be given to the period spent by an
accused
awaiting trial. (See also
S v
Seboko
2009 (2) SACR 573
(NCK) para
22.) A mechanical formula to determine the extent to which the
proposed sentence should be reduced, by reason of the
period of
detention prior to conviction, is unhelpful. The circumstances of an
individual accused must be assessed in each case
in determining the
extent to which the sentence proposed should be reduced. (It should
be noted that this court left open the question
of how to approach
the matter in
S v Dlamini
2012 (2) SACR 1
(SCA) para 41.)
A better approach,
in my view, is that the period in detention pre-sentencing is but one
of the factors that should be taken into
account in determining
whether the effective period of imprisonment to be imposed is
justified: whether it is proportionate to
the crime committed. Such
an approach would take into account the conditions affecting the
accused in detention and the reason
for a prolonged period of
detention. And accordingly, in determining, in respect of the charge
of robbery with aggravating circumstances,
whether substantial and
compelling circumstances warrant a lesser sentence than that
prescribed by the Criminal Law Amendment Act
105 of 1997 (15 years’
imprisonment for robbery), the test is not whether on its own that
period of detention constitutes
a substantial or compelling
circumstance, but whether the effective sentence proposed is
proportionate to the crime or crimes committed:
whether the sentence
in all the circumstances, including the period spent in detention
prior to conviction and sentencing, is a
just one.’
[17]
I referred (in para 15) in this regard to the decision in
Vilakazi
(above) and to
S v Malgas
2001 (1) SACR 469
(SCA) para 25
where Marais JA said:
‘
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.’
[18]
The questions have thus already been answered, not only in relation
to cases where minimum sentences have been prescribed by
the
legislature, but in all cases where a court is considering the
justness of the sentence to be imposed: the sentencing court
should
consider in all cases whether the period of imprisonment proposed is
proportionate to the crime committed, taking into account,
for that
purpose, the period spent in custody awaiting trial.
[19]
The trial court in this matter should have determined whether, in all
the circumstances, the substantial and compelling circumstances
shown
to have existed,
including the period spent in custody awaiting
trial
, justified imposing a sentence less than that prescribed by
the legislature. The four years spent in custody prior to the trial
by each of the respondents should have been taken into account as a
factor warranting deviation from the prescribed sentence. But
the
doubling of that period, especially given the length of the period
spent in custody, cannot be justified. The deduction of
eight years
of imprisonment from the number of years the trial court thought was
warranted (apparently 20 years) amounted to a
misdirection warranting
interference with the sentences imposed.
[20]
The other questions that this court, in giving leave to appeal
against sentence, raised were based on the assumption that the
period
spent in custody awaiting trial did not amount to substantial and
compelling circumstances, and were raised with reference
to the
parole provisions of the
Correctional Services Act 111 of 1998
. There
is no need to address these questions given my conclusion that the
period in custody must be taken into account in determining
whether
the prescribed sentence is justified.
[21]
The second misdirection that the State alleges occurred was that the
trial judge imposed a non-parole period. First, it argues,
the effect
of the order (that two years of the period spent in custody while
awaiting trial be deducted when calculating the date
on which the
sentence is to expire for purposes of considering parole) is that the
effective sentence is then ten years’
imprisonment, whereas
life imprisonment is prescribed. Apart from the effect of the order,
the State argues that such an order
should be made only in
exceptional circumstances: see
S v Stander
2012 (1) SACR
537
(SCA) paras 12 and 13 where Snyders JA explained why it is not
desirable for courts to make decisions on the release of prisoners
on
parole. Non-parole orders should be made only in exceptional
circumstances and none existed in this case. I accept the State’s
submission that this amounted to another misdirection.
[22]
The third misdirection complained of is that the trial court assumed
that the respondents were all candidates for rehabilitation.
Yet they
proffered no evidence to that effect. They chose not to explain to
the court why they were remorseful, if they were, and
why they were
likely to be rehabilitated such that life imprisonment was not
justified. The trial court considered it as a compelling
factor
despite the absence of evidence in that regard. Taken on its own,
however, I do not think that the finding constitutes a
misdirection.
It is but one of the factors that call into question the weight given
to mitigating factors in determining whether
substantial and
compelling circumstances existed.
[23]
Finally, the State argues that the trial court failed properly to
take into account the evidence of Mrs Mtshweni who testified
as to
the after-effects of the murder of the deceased. The court referred
to this evidence in explaining that a court cannot exact
vengeance
for the murder. Mrs Mtshweni did testify that people in the community
in which the deceased had worked were badly affected
by her death and
wanted a sentence of life imprisonment imposed. The trial court
correctly said that it should not impose a sentence
to satisfy the
public. But it did no more than mention the evidence about the
suffering of the deceased’s family after her
death and the
important social work that was no longer being done in the Govan
Mbeki Municipality because of her death.
[24]
The failure to consider this evidence properly, and the trial court’s
further failure to look at the entire context in
which the murder was
committed, indicate, said the State, that the court did not consider
what was justified in the circumstances.
The context included the
fact that the murder was politically motivated and that Ms Lukhele
was sentenced to 20 years’ imprisonment
despite her show of
remorse and guilty plea. There was, argued the State, an
unjustifiable imbalance between her sentence and that
of the
respondents. This is not decisive of the matter, for all cases and
all accused must be treated on their own merits. But
it was not a
factor even mentioned by the trial court in sentencing.
[25]
The State fairly conceded that sentences of life imprisonment should
not be imposed on the respondents and that there were
substantial and
compelling circumstances that justified a deviation from the
prescribed sentence. But, as I have said, it argued
that the trial
court had misdirected itself in several respects and that this court
should interfere with the sentences imposed
and itself impose
appropriate sentences.
[26]
I accept that the trial court failed to consider all the factors that
had to be weighed in the balance to determine whether
the sentence
that it imposed was appropriate in all the circumstances. And it is
clear that it misdirected itself in relation to
the computation of
the period spent in custody awaiting trial to be taken into account
when determining that the prescribed minimum
sentence should not be
imposed. It imposed sentences that were far too lenient in all the
circumstances.
[27]
The very factors that the trial court referred to in sentencing the
respondents as aggravating – that the respondents
were
motivated by financial greed, that violence in the community is
politically motivated and endemic, that the deceased was murdered
precisely because she was fighting against corruption, and that they
showed no remorse – indicate that the sentences imposed
are
inappropriate. In the circumstances, this court is at large to
interfere.
[28]
I have already indicated that the four-year period spent by the
respondents in custody awaiting trial must be regarded as a
factor
that requires this court to deviate from the prescribed sentence:
life imprisonment is not proportionate to the crime in
the
circumstances. That requires this court to consider an appropriate
sentence. In my view, a lengthy term of imprisonment is
warranted.
The factors that the trial court regarded as aggravating, and which I
have described above, show that a prison sentence
of many more years
than that imposed is required. People who take another’s life
for financial gain must be severely punished.
I consider that a
sentence of 20 years of imprisonment in respect of each of the
respondents is justified.
[29]
1
The appeal against sentence is upheld.
2
The order of the high court in respect of sentence is set aside and
is replaced by the following:
‘
1
The accused are sentenced to 20 years of imprisonment with effect
from 31 June 2011.
2
The sentence currently being served by accused 2 is to run
concurrently with the sentence now imposed.’
C
H Lewis
Judge
of Appeal
APPEARANCES:
For
the Appellant: F W van der Merwe
Instructed
by:
Director
of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
For the First &
Second Respondent: L Manzini
For the Third
Respondent: I Erasmus
Instructed
by:
Pretoria
Justice Centre
Bloemfontein
Justice Centre