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[2014] ZASCA 148
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Shubane and Another v S (073/14) [2014] ZASCA 148 (26 September 2014)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 073/14
DATE: 26 SEPTEMBER
2014
Not
Reportable
In the matter between
MADALA GOODWILL
SHUBANE
....................................................
FIRST
APPELLANT
GEORGE
MONDLANA
.................................................................
SECOND
APPELLANT
And
THE
STATE
...............................................................................................
RESPONDENT
Neutral citation:
Shubane v The State
(073/14)
[2014]
ZASCA 148
(26 September 2014)
Coram
:
Shongwe, Majiedt and Mbha JJA
Heard: 10 SEPTEMBER 2014
Delivered: 26 SEPTEMBER
2014
Summary: Sentence –
Robbery with aggravating circumstances – Premeditated, well
planned robbery – Firearm and
knives used – Violence
inflicted upon, inter alia, elderly woman – Gun held against
head of seven year old child –
17 years’ imprisonment
appropriate – no requirement in our law that a sentencing
officer should forewarn an accused
person of a contemplation to
impose a sentence in excess of the statutorily prescribed minimum
sentence.
ORDER
On
appeal from:
North
Gauteng High Court, Pretoria (Preller et Pretorius JJ, sitting as
court of appeal):
The
appeal against sentence is dismissed.
JUDGMENT
Majiedt JA (Shongwe and
Mbha JJA concurring):
[1]
The appellants, Mr Madala Goodwill Shubane and Mr George Mondlana,
appeal against the sentence of 17 years’ imprisonment
imposed
upon them in the Benoni Regional Court for robbery with aggravating
circumstances, confirmed on appeal to the North Gauteng
High Court,
Pretoria (Pretorius J, Preller J concurring). The first appellant
appeals with the leave of the high court and the
second appellant
with the leave of this court.
[1]
[2]
The appellants and a confederate, the erstwhile accused number one,
accosted Mr Mohammed Jogee in his garage at home during
the early
morning of 2 June 2004 as Mr Jogee was about to take his child to
school. One of the robbers was armed with a firearm
and the other two
with knives. Mr Jogee was assaulted, tied up with a computer cable
and pushed into his motor vehicle. Two of
his assailants entered the
house and he was later also taken there by the third attacker. Inside
the house Mr Jogee’s wife
and his elderly mother were also
assaulted by the robbers. One of the robbers pointed the firearm at
the Jogees’ seven year
old son, demanding money. The boy
directed the robbers to his coin collection, but they were not
interested in it. The Jogee family’s
ordeal ended when their
neighbours who had heard the commotion intervened, causing the
robbers to flee, taking with them a mobile
phone, a wallet containing
R200 in cash and bank cards, a ring and car keys. The wallet and the
ring were never recovered.
[3]
The Regional Magistrate took into account the aggravating and
mitigating circumstances before imposing sentence. In respect
of the
latter he had regard to the appellants’ personal circumstances
which were as follows:
(a)
The first appellant was 28 years old, unemployed and single with no
dependants. He earned approximately R1000 per month doing
part-time
jobs and lived with his unemployed brother;
(b)
The second appellant was 31 years old, single and had three minor
children. He ran a small business as a hawker from which he
earned
R2000 per month.
[4]
Neither of the two appellants had any previous convictions and they
had spent ten months (the first appellant) and just under
12 months
(the second appellant) in custody before their trial was finalised.
The Regional Magistrate pertinently took these factors
into account
in his deliberations on a suitable sentence.
[5]
The following aggravating circumstances were taken into consideration
by the Regional Magistrate for sentencing purposes:
(a)
The fact that the wallet (and its contents) and the ring were never
recovered;
(b)
The invasion of the Jogees’ home, which is supposed to be their
safe haven, by the armed robbers;
(c)
The assaults on the victims, particularly on Mr Jogee’s elderly
mother;
(d)
The shocking act of holding a firearm against a seven year old
child’s head.
[6]
In addition to these aggravating factors enumerated by the Regional
Magistrate, one also discerns from the record that the appellants
have not shown any remorse at all. A further aggravating factor is
the fact that on the evidence on record the robbery had clearly
been
carefully planned and was thus premeditated.
[7]
It was contended on behalf of the appellants that the Regional
Magistrate had misdirected himself by not forewarning the appellants
that he contemplated imposing a sentence in excess of the minimum
sentence of 15 years statutorily prescribed for this type of
offence.
[2]
The appellants’ legal representatives should have been given an
opportunity to make submissions on why a sentence in excess
of the
prescribed minimum sentence should not be imposed, so it was
contended. These contentions are misplaced. There is no duty
in our
law upon a sentencing officer to forewarn an accused person of such a
contemplation or to grant an opportunity for submissions
to be made
in this regard. In
Mthembu
[3]
this court endorsed the view of the high court in that matter (the
Full Court consisting of Jappie, Swain and Gorven JJ)
[4]
that no such forewarning is required.
[5]
And this court also upheld that Full Court’s finding that
Mbatha
,
[6]
in which the contrary was earlier held, was wrongly decided.
[7]
[8]
We are bound by this court’s judgment in
Mthembu
which was, with
respect, correctly decided. Having earlier alluded to the divergent
judgments of the Full Courts in
Mbatha
and
Mthembu
,
Ponnan JA and Petse AJA held as follows:
[8]
‘
It
may well be a salutary practice for a court, if it holds a view
adverse to a particular litigant, to put that to the litigant
or such
litigant’s representative during argument. But we cannot
imagine that where a view is just in its embryonic stage,
a failure
to do so, without more, would constitute a defect in the proceedings.
In particular Wallis J’s approach, that the
failure to apprise
the defence of the fact that a higher sentence than the minimum was
in contemplation constitutes, without more,
a defect in the
proceedings, cannot be endorsed. In our view such failure in and of
itself will not result in a failure of justice
which vitiates the
sentence. After all, any sentence imposed, like any other conclusion,
should be properly motivated (
S
v Maake
2011 (1) SACR 263
(SCA). And we should not lose from sight that our
appellate courts have, in terms of long standing practice, reserved
for themselves
the right to interfere where a sentence has been
vitiated by a material misdirection or where it is shocking or
startlingly inappropriate.
As both
Legoa
and
Ndlovu
make plain, a “vigilant examination of the relevant
circumstances” is required. Here, the indictment was explicit.
It stated: “MURDER read with the relevant provisions of section
51 and Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
”.
Thus, right from the outset, the accused was informed in unambiguous
terms that the state intended to rely on the minimum
sentencing
provisions. No specific irregularity was alluded to in argument. A
careful perusal of the record reveals that there
was none.’
Counsel
for the appellants sought to place reliance for his contentions on
this court’s judgment in
Maake
.
[9]
But, as this court demonstrated in
Mthembu,
the
Mbatha
judgment was cited in
Maake
in a completely different context.
[10]
The reliance on
Maake
is therefore misconceived. In any event, when an accused person is at
the commencement of a trial apprised of the sentencing provisions
in
sections 51
and
52
of the Act, read with Schedule 2, that by
necessary implication includes the provisions relating to a Regional
Magistrate’s
power to impose a sentence not exceeding five
years more than the prescribed minimum sentence of imprisonment.
[9]
The second arrow to the appellants’ bow was the contention that
the Regional Magistrate had failed to furnish reasons
for imposing a
sentence in excess of the minimum prescribed by law. If correct, that
would justify a conclusion that the sentence
was arrived at
arbitrarily and may very well result in interference on appeal.
[11]
But this submission is devoid of merit. The record reflects that the
Regional Magistrate set out in his judgment on sentence in
some
detail the aggravating factors referred to above which impelled him
not to deviate from the prescribed minimum sentence. He
then made
reference to the subsection in the Act which vested in him the power
to impose a sentence in excess of the prescribed
minimum. He regarded
these aggravating factors, particularly the violent assault on an
elderly lady and the pointing of a firearm
at a seven year old boy’s
head, as so heinous that it warranted a sentence in excess of the 15
years’ imprisonment
prescribed by law. This ground of appeal
must therefore also fail.
[10]
The last aspect for consideration is whether the sentence of 17
years’ imprisonment warrants interference on appeal.
Counsel
for the appellants argued without much vigour that there are
substantial and compelling circumstances to deviate from the
prescribed minimum sentence. These were contended to be the fact that
the appellants had spent more than a year in custody awaiting
trial,
that they were first offenders and that the State had failed to
adduce any evidence regarding the injuries sustained by
the victims.
Short shrift can be made of the first two aspects. As stated, the
Regional Magistrate pertinently took into consideration
the time the
appellants had spent in custody before sentencing. And the contention
is also factually incorrect – as indicated
above the first
appellant had spent ten months and the second appellant just under a
year in custody at the time when they were
sentenced. As far as the
second aspect is concerned, the Act specifically provides for harsher
sentences to be imposed on second
and third offenders.
[12]
A first offender is therefore already given the benefit of a lesser
sentence by the Act itself. The fact that the appellants have
no
previous convictions is most certainly a positive mitigating factor
in their favour, but it can hardly be a compelling or substantial
circumstance on its own.
[11]
The last factor contended for is somewhat startling. While it is true
that no evidence was led regarding the victims’
physical
injuries, the emotional trauma which they must have suffered is
unquestionable. This is particularly so in the case of
Mr Jogee’s
mother and his seven year old son. One can hardly imagine more
reprehensible conduct than the assault of an elderly
lady and the
pointing of a firearm against the head of a young child in the course
of an armed robbery inside a private home. I
am satisfied on the
facts of this case that the Regional Magistrate was correct in
finding that no substantial and compelling circumstances
exist and
that a sentence in excess of the prescribed minimum is warranted. The
gravity of the offence and the circumstances under
which it has been
committed justify the sentence imposed. And the high court was
correct in dismissing the appeal. The appeal is
thus devoid of merit.
[12]
I issue the following order:
The
appeal against sentence is dismissed.
S
A MAJIEDT
JUDGE
OF APPEAL
APPEARANCES
For Appellants: J Mojuto
Instructed
by: Legal Aid SA, Pretoria
Bloemfontein
Justice Centre, Bloemfontein
For Respondent: P W Coetzer
Instructed
by: Director of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
The high court initially refused the second
appellant’s application for leave to appeal, but purported to
‘recall’
that order when subsequently granting the first
appellant leave to appeal. The high court was
functus
officio
when it purported to ‘recall’
its first order and granted the second appellant leave to appeal to
this court, having
earlier granted such leave to the first
appellant. The second appellant’s subsequent petition for
leave to appeal was granted
by this court.
[2]
Section 51(2)(
a
)(i)
of the Criminal Law Amendment Act 105 of 1997 (the Act) read with
Part II of Schedule 2 thereof.
[3]
S v Mthembu
2012
(1) SACR 517
(SCA).
[4]
S v Mthembu
2011
(1) SACR 272
(KZP).
[5]
S v Mthembu
fn 3
above para 18.
[6]
S v Mbatha
2009
(2) SACR 623
(KZP) – a decision of the Full Court (Wallis J,
van der Reyden and Niles-Duner JJ concurring).
[7]
S v Mthembu
fn 3
above para 18.
[8]
S v Mthembu
fn 3
above para 18.
[9]
S v Maake
2011
(1) SACR 263
(SCA).
[10]
S V Mthembu
fn 3
above para 19.
[11]
S v Maake
above
para 28;
S v Mathebula & another
2012 (1) SACR 374
(SCA) paras 11 and 12.
[12]
Section 51(2)(
a
)(ii)
and (iii) of the Act, read with Part II of Schedule 2.