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[2010] ZAGPPHC 634
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S v Mamato and Others (A1006/99) [2010] ZAGPPHC 634 (15 June 2010)
IN
THE NORTH GAUTENG HIGH COURT
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: A1006/99
DATE:
15 JUNE 2010
NOT
REPORTABLE
In
the matter between:
THE
STATE
and
PATRICK
MAMATO
............................................................................................
First
Accused
DAVID
RADITSELA
.........................................................................................
Second
Accused
JOHN
MORALO
..................................................................................................
Third
Accused
MATTHEWS
MOLOTANE
..............................................................................
Fourth
Accused
JOSEPH
MAKWANAZI
......................................................................................
Fifth
Accused
MOSES
BEKHETE
..............................................................................................
Sixth
Accused
JUDGMENT
1
The appellants appeal against their convictions and their sentences
imposed by a regional magistrate who sat with assessors in
Christiana. The appellants were convicted of three counts of robbery
with aggravating circumstances, unlawful possession of firearms
and
ammunition and escaping from custody.
2
Counsel for the appellants has correctly conceded that on the facts,
and subject to one qualification with which I shall deal
below, the
appellants were correctly found to have committed the acts with which
they were charged.
3
I shall therefore say little about the convictions themselves. The
charges arise out of a bank robbery. The appellants were members
of a
gang which robbed the Volkskas Bank in Christiana and, in order to
obtain a getaway vehicle, robbed a woman on the scene of
her Honda
Ballade together with her keys, R120 cash and her handbag.
4
It appears that the notices of appeal were all filed out of time. The
appellants apply for condonation. Their condonation applications
are
not opposed and the reasons for the lateness are adequately
explained. The appellants are in prison. The condonation applications
will therefore be granted.
5
On behalf of the 6th appellant it is submitted that the regional
magistrate committed a gross irregularity in failing to accede
to a
request by his legal representative for further time to prepare to
continue with the proceedings.
6
The facts are fully dealt with by the regional magistrate in his
judgment:
6.1
The accused were all arrested on 13 October 1997 and escaped from the
police cells on 19 October 1997.
6.2
They were rearrested on different dates; the 6th appellant was the
last to be rearrested, on 12 December 1998.
6.3
The case then had to be postponed from time to time as further
accused were reapprehended and joined to the proceedings. The
case
was eventually set down for hearing on 8 September 1998, for three
days, against the first five appellants. On that date,
numerous state
witnesses were present but the 1 st to 5th appellants had not secured
legal representation. They were given until
the following day to do
so. No legal representative appeared on any of the three days for
which the case was set down.
6.4
The case was then postponed to 9 November 1998 but on that date no
legal representative appeared for any of the appellants.
The case was
postponed to 10 December 1998. Once again, no lawyer appeared and the
case was again postponed.
6.5
Thereafter the 6th appellant was joined. He had, as I have mentioned,
been rearrested. The sixth appellant asked for two weeks
to obtain
legal representation. The case was postponed for trial on 2, 3, 4 and
5 February 1999.
6.6
The regional court’s roll permits cases for outside courts such
as Christiana, Schweitzer Renecke, Bloemhof and Wolmaransstad
to be
set down for only eight days in a month in total. The postponements
of the present case caused considerable dislocation to
the
administration of justice because the time allocated for the hearing
of the case was simply wasted to the great detriment of
the public
and accused persons, particularly those in custody.
6.7
On 2 February 1999, an attorney, Mr von Drunick presented himself at
court to represent the 6th appellant. This attorney had
apparently
been instructed on 18 January 1999 and had, some time before 21
January 1999, written a letter to the prosecutor to
ask for the
charge sheet and statements and received no reply. There the attorney
was content to let the matter rest. The prosecutor
denied having
received the letter.
6.8
The attorney asked for more time. The regional magistrate was
prepared to give him until 11 h45 on the same day. To have given
von
Drunick the lengthy postponement he sought, the regional magistrate
considered, would bring the system of justice into disrepute.
He had
regard to the demoralising effect of constant postponements on state
witnesses and the expressed desire of all the other
appellants to
continue with the proceedings.
6.9
The attorney then withdrew from the proceedings after which he
consulted again with the 6th appellant. When the court reconvened,
the 6th appellant stated that he would take no part in the
proceedings. It appears from the record that he in fact did not do
so. After he declined to plead, a plea of not guilty to all charges
was correctly entered on his behalf.
7
Can it be said that under these circumstances, the right of the 6th
appellant to a fair trial was violated? I do not believe that
it can.
Counsel
submitted that the regional magistrate might have given von Drunick
until the following day to prepare, rather than until
later on the
same day. But von Drunick did not ask for one day’s grace. He
asked for the trial to be postponed, impliedly
until much later.
Counsel submits that the 6th appellant was not responsible for the
earlier delays. This submission would have
more force if the 6th
appellant had been brought to justice for the first time in December
1998. But that was not the case. He
had been at large for some 14
months before he was rearrested, in which time, needless to say, he
had done nothing about preparing
for the eventuality that he might in
the future be required to account for his deeds.
8
Ultimately, a decision to grant or refuse a postponement is in the
discretion of the judicial officer presiding. The regional
magistrate
took into account all relevant factors for and against granting the
postponement. In coming to his conclusion, he weighed,
as he was
required to do, the constitutional rights of the other accused, the
state and the public together with those of the 6th
appellant. In my
judgment he cannot be faulted in the exercise of his discretion.
9
The appeals against the convictions must therefore be dismissed. I
turn to the sentences imposed.
10
The attack on the sentences is directed essentially at their
cumulative effect. The sentence imposed on the 3rd, 5th and 6th
appellants was an effective 17 years in prison while that imposed on
the 1st, second and 4th appellants was 32 years imprisonment.
11
The appellants were members of an armed gang who subjected innocent
members of the community to what must have been a terrifying
experience. In such a case the element of deterrence must loom large.
12
In my view the 3rd, 5th and 6th appellants were lucky to have got off
so lightly. The 1st, second and 4th appellants received
more severe
sentences because of their relevant previous convictions. I am unable
to agree that their sentences were inappropriately
severe. The
appeals against sentence can therefore not succeed.
13
I make the following order:
13.1
The late delivery of the notices of appeal is condoned;
13.2
The appeals of each of the appellants against conviction and sentence
are dismissed and the convictions of and sentences imposed
upon each
of the appellants is confirmed.
NB
Tuchten
Judge
of the High Court
15
June 2010
I
agree.
SS
Omar
Acting
judge of the High Court
15
June 2010