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[2013] ZASCA 191
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Mahlase v S (255/13) [2013] ZASCA 191 (29 November 2013)
NOT REPORTABLE
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 255/13
DATE: 29 November 2013
In the matter between:
ALEX DIKELEDI
MAHLASE
....................................................
Appellant
and
THE
STATE
...........................................................................
Respondent
Neutral
citation:
Mahlase v The State
(255/1211)
[2011] ZASCA 191
(29 May 2011)
Coram:
Lewis,
Tshiqi and Theron JJA
Heard: 25 November
2013
Delivered: 29
November 2013
Summary: Appeal
against sentence – two misdirections – convictions for
offences committed after offences in issue not
previous convictions –
Part I Schedule II of the
Criminal Law Amendment Act 105 of 1997
not
applicable – other rape incidents not proven – court on
appeal required to interfere with the sentence.
ORDER
On appeal from:
Limpopo High Court, Thohoyandou (Makgoba J sitting
as a court of first instance):
The
appeal against sentence is upheld to the limited extent reflected
herein below.
a)
The individual sentences of five years’ imprisonment each
imposed by the trial court in counts 3, 4, 5 and 6 – kidnapping
- are confirmed. All four sentences are ordered to run concurrently.
b)
The sentences imposed by the trial court in counts 1 and 2 are set
aside and substituted as follows:
I)
Count 1– Robbery – The accused is sentenced to 12 years’
imprisonment.
ii)
Count 2 – Rape – The accused is sentenced to 15 years’
imprisonment
.
Iii)
The sentences in counts 1 and 2 are ordered to run concurrently.’
JUDGMENT
Tshiqi JA (Lewis and
Theron JJA concurring):
1]
The appellant, was convicted and sentenced in the Limpopo High Court,
Thohoyandou (Makgoba AJ) as follows:
I)
Count 1 – Robbery with aggravating circumstances –
sentenced to 20 years’ imprisonment;
ii)
Count 2 – Rape – sentenced to life imprisonment;
iii)
Counts 3, 4, 5 and 6 – Kidnapping – sentenced to five
years’ imprisonment on each of the individual counts.
2]
None of those sentences was ordered to run concurrently. This appeal
is with the leave of the high court (per Shaik AJ) against
sentence
only.
3]
The charges arose from an incident that occurred on 6 June 1998. Mr
Bhudeli, the complainant in counts 1 and 3, had just closed
his
bottle store and had, together with his employee, Ms D M, the
complainant in counts 2 and 4, and two other male employees,
the
complainants in counts 5 and 6, entered his motor vehicle, a
Caravelle combi, when the appellant and four co-assailants, some
of
whom were in possession of fire-arms, approached them and entered the
vehicle. The appellant and his co-assailants pointed fire-arms
at
them and robbed Mr Bhudeli of cash in the amount of R4 000, his
watch, fire-arm and a cellular phone. They ordered him
and the male
employees to lie at the back and Ms D M to go to the front of the
vehicle.
4]
One of the assailants drove the vehicle away from the premises of the
bottle store. Whilst the motor vehicle was moving, Ms D
M was raped,
apparently more than once, and allegedly by more than one of the
assailants. She could not identify the perpetrators.
According to Mr
Thami Mahlangu, one of the assailants who later testified in terms of
s 204
of the
Criminal Procedure Act 51 of 1977
, she was raped by
three men, one of whom was the appellant. However, as at the date of
the trial only the appellant appeared, as
his co-assailants had fled.
At some stage the vehicle stopped and Mr Bhudeli and his male
employees were stripped naked. All of
them and Ms DM were ordered to
alight from the vehicle. They complied and ran into the bushes. They
were offered a lift by a school
bus driver conveying children along a
certain route noticed them, gave them a lift and took them to the
police station. None of
them was able to identify their assailants.
5]
The appellant and his co-assailants were arrested approximately three
years later, as a result of a confession made by Mr Mahlangu
to the
police and afterwards to a magistrate implicating himself, the
appellant and the other co-assailants as the perpetrators
of the
crimes. Mr Mahlangu testified at the trial as a
s 204
witness. His
evidence was found to be admissible by the trial court and the
appellant was convicted.
As
I have said, leave to appeal was granted only in respect of the
sentences.
6]
During sentencing the trial court committed two material
misdirections that justify interference by this court.
7]
The first misdirection by the court a quo was that it treated
offences which were committed by the appellant after the offences
for
which he was on trial as previous convictions. He was convicted for
those offences – rape, robbery and kidnapping –
before
being tried on the charges that are the subject of this appeal.
8]
In spite of the acknowledgement by the court that those offences
could not be taken as previous convictions, it nonetheless stated
that the appellant ‘has three to four
relevant previous
convictions
, assault, robbery, abduction and rape’. In that
regard it erred. This is not to say it should have ignored that
evidence
all together. That evidence is just one of the many factors
that should be taken into account by a trial court when it makes a
decision on an appropriate sentence. As this court stated in
R v
Zonele & others
1959 (3) SA 319A
at 330:
‘
A
previous conviction may be described as one which occurred before the
offence under trial. Generally speaking, previous convictions
aggravate an offence because they tend to show that the accused has
not been deterred, by his previous punishments, from committing
the
crime under consideration in a given case.
One knows, from practice and from thousands of review cases, that
judicial officers usually confine their attention, as far as
convictions are concerned, to previous convictions. But I can see no
reason why a judicial officer, in deciding what particular
form of
punishment will fit the criminal as well as the crime, should not be
informed of subsequent convictions, because of the
light they may
throw on the form of sentence which will be the most
appropriate. There is nothing in
ss 301
to
303
of Act 56 of 1955
which ousts such a view. On the contrary, s 186 (2) seems to me to
sanction it. It provides that the court may,
before passing sentence,
receive such evidence as it thinks fit in order to inform itself as
to the proper sentence to be passed.
I do not consider that the word
“evidence” in the above section, was intended to have its
strict meaning as would
be the case in respect of evidence prior
to conviction. I agree with respect with the following remarks by
Selke J concurred in
by Hathorn J in
Mbuyase
& others v Rex
,
1939 NPD 228
at p 231:
“
Now to
enable a magistrate, or for that matter, anyone exercising judicial
functions, to decide upon what is an appropriate sentence
in the case
of an individual accused, he is entitled to avail himself of
many sources of information, and of many circumstances
affecting
that individual, some of which it would not be proper for him to
regard in coming to a conclusion as to whether the accused
were
guilty or not guilty.”
The
foregoing remarks were described by Roper J, (with whom Clayden J as
he then was, concurred) as “very apt”; see
R
v Swart
1950
(1) SA 818
(T)
at p 824. Furthermore in
R
v Liebenberg
1924 TPD 579
, a Bench consisting of Mason J, De Waal and Tindall JJ,
agreed that a magistrate was entitled to take into account, in
considering
whether to give the accused a suspended sentence, the
fact that he had just previously been convicted and sentenced on a
charge
of theft, although the latter crime was committed after the
one for which he was then being tried.
All
this is consistent with what was said in this court by Schreiner JA
in
R
v Owen
1957
(1) SA 458
(AD)
at p 462 F - G, namely:
“
When it comes to
the imposition of sentence the judicial officer is no doubt entitled
to take a wide range of factors into account,
including the accused's
bad or good character, his apparent reformability and the like.”’
Thus, while those
convictions were pertinent to sentence they did not bring the
offences committed by the appellant within the purview
of
s
51(2)
(a)
(ii) of the
Criminal Law Amendment Act 105 of 1997
. A
minimum sentence of 20 years’ imprisonment was not required, as
found by the trial court. That sentence must accordingly
be set
aside.
9]
The second misdirection pertained to the sentence imposed for the
rape conviction. The court correctly bemoaned the fact that
Ms D M
was apparently raped more than once and in front of her colleagues.
The learned judge however overlooked the fact that because
accused 2
and 6, who were implicated by Mr Mahlangu, were not before the trial
court and had not yet been convicted of the rape,
it cannot be held
that the rape fell within the provisions of
Part 1
Schedule 2 of the
Criminal Law Amendment Act (where
the victim is raped more than once)
as the high court found that it did. It follows that the minimum
sentence for rape was not
applicable to the rape conviction and the
sentence of life imprisonment must be set aside.
10]
In light of those misdirections, the sentences for robbery and rape
imposed by the court below stand to be set aside and this
court is at
large to impose what it considers to be appropriate sentences. The
rape was aggravated by the fact that it took place
in the presence of
Ms D M’s fellow employees. The appellant and his co-assailants
did not only rob Mr Bhudeli of his vehicle:
they stripped him and his
employees of all their clothes and abandoned them in the open veld.
They behaved in a cruel and humiliating
fashion. Lengthy periods of
imprisonment are warranted in respect of both offences. I consider
that an appropriate sentence in
respect of the robbery is 12 years’
imprisonment and in respect of the rape 15 years’ imprisonment.
Those offences
were committed in the course of one continuous attack
on the complainants and should thus run concurrently. Together with
the sentences
for kidnapping (an effective period of five years’
imprisonment) the appellant should then serve an effective period of
20
years’ imprisonment.
11]
I therefore make the following order:
The
appeal against sentence is upheld to the limited extent reflected
herein below.
a)
The individual sentences of five years’ imprisonment each
imposed by the trial court in counts 3, 4, 5 and 6 – kidnapping
- are confirmed. All four sentences are ordered to run concurrently.
b)
The sentences imposed by the trial court in counts 1 and 2 are set
aside and substituted as follows:
(i) Count
1– Robbery – The accused is sentenced to 12 years’
imprisonment.
ii)
Count 2 – Rape – The accused is sentenced to 15 years’
imprisonment.
Iii)
The sentences in counts 1 and 2 are ordered to run concurrently.’
Z L L TSHIQI
JUDGE OF APPEAL
APPEARANCES:
For Appellant: M C
Mogashoa
Instructed by:
Justice Centre,
Bloemfontein
For Respondent: R J
Makhera
Instructed by:
The Director of Public
Prosecutions, Thohoyandou
The Director of Public
Prosecutions, Bloemfontein