About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2014
>>
[2014] ZASCA 128
|
|
Nemutandani v S (944/13) [2014] ZASCA 128 (22 September 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 944/13
Not
reportable
In
the matter between:
JOSHUA
NEMUTANDANI
.....................................................................................................
Appellant
and
THE
STATE
............................................................................................................................
Respondent
Neutral
citation:
J
Nemutandani
v The State
(944/13)
[2014] ZASCA 128
(22 September 2014)
Coram:
BRAND and MBHA JJA and MATHOPO AJA
Heard:
9 September 2014
Delivered:
22 September 2014
Summary:
Criminal Law – appellant
convicted for murder and robbery for which he was sentenced to 20
years and 18 years' imprisonment
respectively – sentences not
ordered to run concurrently – misdirection by court a quo
– sentences ordered
to run concurrently.
ORDER
On
appeal from the Limpopo High Court, Thohoyandou (Makgoba AJ) sitting
as court of first instance):
1
The appeal against sentence is upheld to the extent that the sentence
imposed on count 2 (robbery) is ordered to run concurrently
with the
sentence imposed on count 1. The appellant will thus serve an
effective term of 20 years' imprisonment.
2
The sentence is antedated in terms of
s 282
of the
Criminal
Procedure Act 51 of 1977
to 10 November 2004.
JUDGMENT
MBHA
JA (BRAND JA and MATHOPO AJA CONCURRING)
[1]
The appellant and two co-accused were arraigned in the Limpopo High
Court, Thohoyandou before Makgoba AJ (the trial court) on
the counts
of murder and robbery with aggravating circumstances which were read
together with the provisions of
s 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
. On 10 November 2004 all three accused were
convicted as charged and sentenced to 20 years imprisonment for
murder and 18 years'
imprisonment for robbery respectively. The
sentences were not ordered to run concurrently and the accused were
thus sentenced to
an effective term of 38 years' imprisonment. Almost
11 years later the appellant applied for leave to appeal from the
court below.
On 14 March 2013 leave to appeal to this Court was
granted in respect of sentence only.
[2]
The only ground of appeal against sentence is that the trial court
committed a misdirection in not ordering the sentences to
run
concurrently. Before I consider this issue, I deem it necessary to
briefly set out the background facts of the matter which
can be
gleaned from the evidence that was led at the trial.
[3]
At the trial the appellant was indicted as accused 2 whilst his
co-accused (Mmboi and Mudau) appeared as accused 1 and 5
respectively.
All three were initially indicted together with two
other persons namely Eric Todani (accused 3) and Emmanuel Radzuma
(accused
4). However, at the commencement of the trial charges were
withdrawn against Todani and Radzuma who later testified for the
State
after they had been warned in terms of
s 204
of the
Criminal Procedure Act 51 of 1977
.
[4]
The evidence disclosed that on 21 December 2003 in the evening, all
five accused had sat together as a group at the Tshivhumba
Bar Lounge
drinking liquor. The deceased was also present at the bar and
drinking with his friends at a table close by. One of
the appellant's
co-accused suggested that they rob the deceased as he had a lot of
money which was deduced from the fact that the
deceased was drinking
expensive liquor. At around 21h00 the deceased left the bar with
three of his companions and the appellant
and his co-accused decided
to follow and rob him of his money as was previously agreed. When
they got to a certain spot the appellant
left the group saying he was
going to the deceased to take his money and the canvass shoes he was
wearing from him. The appellant
struck the deceased with a beer
bottle whereupon the deceased said he had no money and that the
appellant could go on and kill
him. The appellant then went to Mudau,
accused 5, and took a knife from him which he then used to stab the
deceased three times.
The deceased fell and the appellant removed the
white canvass shoes the deceased was wearing. The deceased died later
that night
as a result of the stab wound that had been inflicted by
the appellant.
[5]
I interpose to state that Mmboi and Mudau were subsequently granted
leave to appeal to this court. On 28 September 2012 the
conviction of
Mmboi was set aside whilst Mudau's appeal against sentence was upheld
only to the extent that the sentence imposed
on count 2 (robbery) was
ordered to run concurrently with the sentence imposed on count 1
(murder).
[1]
[6]
It is trite that sentencing is a matter that is wholly within the
discretion of the trial court. The power of an appeal court
to
intervene is limited to instances where the trial court has
misdirected itself on the law or facts, if it has committed an
irregularity which vitiates the sentence, and also in instances where
the sentence imposed by the trial court differs so greatly
from the
one the appeal court would itself have imposed.
[2]
[7]
This term of imprisonment of 38 years that was imposed on the
appellant – who was 21 years old at the time – appears
to
me to be unduly harsh. It is noteworthy that Makgoba AJ, when
granting the appellant leave to appeal to this Court, even commented
that the sentence appeared to be shockingly inappropriate and that
another court could decide the matter otherwise.
[8]
This Court has previously warned against excessively long sentences
being imposed by trial courts. Thus in
S
v Mhlakaza
[3]
this
court had occasion to consider whether sentences of imprisonment
which are cumulatively in excess of 25 years, are proper and
whether
they have any rehabilitative effect. Harms JA cautioned that
sentences of imprisonment ought to be realistic and should
not be
open to the interpretation that they have been designed for public
consumption.
[4]
[9]
As can be seen from the facts, the murder committed by the appellant
was inextricably linked to the robbery of the deceased
during which
the deceased's canvass shoes were removed and taken. It is trite law
that an order for sentences to run concurrently
is always called for
where the evidence shows that the relevant offences are inextricably
linked in terms of locality, time, protagonists
and, importantly, the
fact that they were committed with one common intent.
[5]
[10]
In
S
v Senatsi & another
,
[6]
Mthiyane
JA gave recognition to the role of mercy in sentencing by saying one
way in which it could be accorded to the accused was
through ordering
that sentences imposed should run concurrently.
[11]
Counsel for the respondent has conceded, correctly in my view, that
the trial court committed an irregularity by not ordering
the
sentences to run concurrently. What aggravates the matter even
further is that the trial court even omitted to furnish any
reasons
for this decision. Clearly, the trial court never even considered the
cumulative effect of the sentence that was imposed.
Accordingly the
appeal against sentence must succeed albeit to the limited extent
that the sentences that were imposed on the appellant
will be ordered
to run concurrently.
[12]
In the result the following order is made:
1
The appeal against sentence is upheld to the extent that the sentence
imposed on count 2 (robbery) is ordered to run concurrently
with the
sentence imposed on count 1. The appellant will thus serve an
effective term of 20 years' imprisonment.
2
The sentence is antedated in terms of
s 282
of the
Criminal
Procedure Act 51 of 1977
to 10 November 2004.
_____________________
B
H MBHA
JUDGE
OF APPEAL
APPEARANCES:
For
appellant: L M Manzini
Instructed
by:
Thohoyandou
Justice Centre, Thohoyandou
Bloemfontein
Justice Centre, Bloemfontein
For
respondent: N R Nekhambela
Instructed
by:
The
Director of Public Prosecutions, Thohoyandou
The
Director of Public Prosecutions, Bloemfontein
[1]
Mmboi
& another v S (
167/2012)
[2012] ZASCA 142
(28 September 2012).
[2]
S
v Kgosimore
1999
(2) SACR 238
(SCA) para 10.
[3]
1997
(1) SACR 515
SCA at 519g.
[4]
At 524A.
[5]
S
v Mokela
2012 (1) SACR 431
(SCA) para 11.
[6]
2006
(2) SACR 291
SCA para 6.