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[2020] ZAGPJHC 324
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S M v S (A17/2017) [2020] ZAGPJHC 324 (4 September 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO
:
A17/2017
COURT
A QUO
CASE NO
:
RC230/2011
DATE
:
4
th
September 2020
In
the matter between:
M
:
S
Appellant
-
and -
THE
STATE
Respondent
Coram:
Adams J
et
Millar AJ
Heard
on
: 03 September 2020 – This appeal was, by consent between
the parties, disposed of without an oral hearing in terms of s 19(a)
of the
Superior Courts Act 10 of 2013
.
Delivered:
04 September 2020 – This judgment was handed down
electronically by circulation to the parties' representatives by
email,
by being uploaded to the
CaseLines
system of the GLD
and by release to SAFLII. The date and time for hand-down is deemed
to be 10H00 on 04 September 2020.
Summary:
Criminal law and procedure – sentence of
an effective fifteen years’ imprisonment – being in
possession of stolen
property – unlawful possession of an
unlicensed AK47 semi-automatic firearm – sentence not
disturbingly inappropriate
– no misdirection – appeal
dismissed.
ORDER
On
appeal from:
The
Randburg Regional Court (Regional Magistrate Mudau sitting as Court
of first instance):
(1)
The appellant’s appeal against his
sentence is dismissed.
(2)
The appellant’s sentence by the
Randburg Regional Court be and is hereby confirmed.
JUDGMENT
Millar
AJ (Adams J concurring):
[1].
The appellant was convicted of a
contravention of
Section 36
of Act 62 of 1955 – being in
possession of stolen property – count 1, as well as
contravening Section 4(1)(a) of the
Firearms Act 60 of 2000 –
possession of an unlicensed AK47 semi-automatic firearm – count
2.
[2].
On 20
February 2014, the appellant was sentenced to six years imprisonment
in respect of count 1 and to fifteen years imprisonment
in respect of
count 2, the sentence in respect of this count being the prescribed
minimum sentence in terms of Section 51(2) of
the
Criminal
Law Amendment Act
[1]
.
The court
imposing sentence ordered that both sentences were to run
concurrently
[2]
,
thus imposing an effective sentence of fifteen years direct
imprisonment.
[3].
The present appeal is against the sentences
imposed; leave having been granted by the court
a
quo
.
[4].
The appellant was legally represented
throughout the proceedings. He pleaded not guilty to the charges.
After conviction, there
was no evidence led either in aggravation or
mitigation of sentence. Furthermore, no pre-sentence reports were
placed before the
court
a quo
for consideration.
[5].
It was submitted in mitigation that the
appellant is an unmarried 36-year old man with three minor children
aged 14, 9 and 5. The
appellant lived with the mother of the two
older children and his youngest child also lived with them. The
appellant completed
school to standard 8 (grade 10). He reportedly
operated a Spaza shop earning R500 per week from which he supported
himself as well
as his partner and the three minor children. The
appellant was arrested and taken into custody on 22 May 2011 and had
remained
in custody from then for a period of just under three years
until the time of his conviction and sentence.
[6].
The sentence imposed on count 1 carries no
minimum sentence whereas the sentence imposed in count 2 does.
[7].
Notwithstanding that there is a minimum
sentence in respect of count 2, sub-section (3)(a) of the Act,
provides as follows:
‘
(3)
(a) If any Court referred to in sub-section (1) or (2) is satisfied
that substantial and compelling circumstances exist which
justify the
imposition of a lesser sentence than the sentence prescribed in those
sub-sections, it shall enter those circumstances
on the record of the
proceedings and may thereupon impose such lesser sentence.’
[8].
The
appellant therefore falls within the ambit of sub-section (1) of the
Act unless he can prove the existence of substantial and
compelling
circumstances. The legislature has not defined substantial and
compelling circumstances. These are circumstances which
are material
to the offence, the interests of society and the personal
circumstances of
the
appellant
[3]
.
[9].
‘
Compelling’
can also be defined as convincing, in other words circumstances which
convince the Court that facts or circumstances
exist which justify
the imposition of a lesser sentence than the prescribed
sentence
[4]
.
[10].
If
the statutory prescribed sentence differs to such an extent from the
sentence which otherwise would be regarded as appropriate,
the
imposition of such a statutory prescribed sentence would lead to a
shocking injustice to
the
appellant
[5]
.
[11].
The
Court therefore has a wide discretion in imposing a lesser sentence
than that which is statutorily prescribed in cases where
the
existence of substantial and compelling circumstances is proved. The
case law makes it clear that it would be manifestly unjust
to assume
that the legislature's intention was to completely negate the Court's
discretion by compelling it to summarily impose
a specific sentence
without due regard to the normal and well-established
sentencing
criteria
[6]
.
[12].
In his judgment on sentence the learned
Magistrate took cognizance of the nature and seriousness of the
offences, the community’s
interests as well as all the
appellant’s personal circumstances – referred to in
paragraph [5] above.
[13].
On
consideration of the matter as a whole the court found that there
were no ‘substantial and compelling circumstances’
to
deviate from the imposition of the minimum sentence in respect of
count 2. The sentences imposed were however mitigated by the
court’s
order that
these
run concurrently
[7]
.
[14].
The
test to be applied, when considering sentence on appeal is set out in
S v
Kgosimore
[8]
– ‘
It
is trite law that sentence is a matter for the discretion of the
court burdened with the task of imposing sentence. Various tests
have
been formulated as to when the Court of appeal may interfere. These
include whether the reasoning of the trial court is vitiated
or
whether the sentence imposed can be said to be startlingly
inappropriate or to induce a sense of shock or whether there is a
striking disparity between the sentence imposed and the sentence the
Court of appeal would have imposed. All of these formulations,
however, are aimed at determining the same thing;
viz
whether there was a proper and reasonable exercise of the discretion
bestowed upon the court imposing sentence.’
[15].
Having considered all the evidence led at
the trial as well as the arguments advanced in respect of both
mitigation and aggravation
of sentence, I am unable to find that the
Court
a quo
failed to properly consider all the personal circumstances of the
appellant and to properly and justly weigh these against the
interests of society and the community in which the offences
occurred.
[16].
I am of the view that the sentence imposed
in respect of count 1 was appropriate and that in respect of count 2,
similarly, the
imposition of the minimum sentence was also
appropriate. There is no basis for this court to interfere with the
sentence imposed.
Order
In
the circumstances, I propose the following order:-
(1)
The appellant’s appeal against his
sentence is dismissed.
(2)
The sentence imposed by the Randburg
Regional Court be and is hereby confirmed.
________________________________
A MILLAR
Acting Judge of the High Court of
South Africa
Gauteng Local Division,
Johannesburg
I agree, and it is so ordered,
Judge of the High Court of South
Africa
Gauteng Local Division,
Johannesburg
HEARD ON:
3
rd
September 2020 –
no oral hearing.
DATE OF JUDGMENT:
4
th
September 2020 –
Judgment handed down electronically.
FOR THE APPELLANT:
Advocate Riaan Greyling
INSTRUCTED BY:
Legal Aid South Africa
FOR THE RESPONDENT:
Adv Riana Williams
INSTRUCTED BY:
The Office of the Director of
Public Prosecutions, Gauteng Local Division, Johannesburg
[1]
105
of 1997, Section 52(1)(a)(i), read together with Part II of Schedule
2.
[2]
In
terms of
s 280(2)
of the
Criminal Procedure Act 51 of 1977
[3]
Du
Toit, Commentary on the
Criminal Procedure Act, Juta
1999 28 16C
[4]
Du
Toit,
supra
,
28-16C
[5]
Du
Toit,
supra
,
28-16D
[6]
S
v Malgas
2001 (1) SACR 469
at 472 H-I;
S
v Homareda
1999 (2) SACR 319 (W).
[7]
S
v Kumalo
1973
(3) SA 697
(AD) at 697B-C
[8]
1999
(2) SACR 238
(SCA) at paragraph 10