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[2012] ZASCA 27
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Zondo v S (541/11) [2012] ZASCA 27 (28 March 2012)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
:
541/11
Not Reportable
In the matter between:
SANELE ZONDO
….............................................................................................
Appellant
and
THE STATE
….................................................................................................
Respondent
Neutral citation:
Sanele Zondo v The State
(541/11)
[2012] ZASCA 27
(28 March 2012)
Coram:
NAVSA, TSHIQI AND WALLIS JJA AND
PETSE AND NDITA AJJA
Heard: 16 February 2012
Delivered: 28 March 2012
Summary: Sentence – Trial court failing to balance
mitigating factors against aggravating factors – Effective
sentence
reduced to 12 years’ imprisonment.
__________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
The
KwaZulu-Natal High Court, Pietermaritzburg (Pillay and Ntshangase JJ
sitting as court of appeal):
The appellant’s appeal succeeds to the extent set out below.
The sentence imposed by the court below is set aside and
substituted with the following:
‘
(i) The sentence on count 1 is set aside
and substituted with a sentence of 12 years’ imprisonment.
The sentence on count two is confirmed.
It is ordered that the sentences on counts one and two should run
concurrently.
The appellant is therefore sentenced to an effective term of 12
years’ imprisonment.’
JUDGMENT
TSHIQI JA (
NAVSA, and WALLIS JJA and PETSE
and NDITA AJJA
concurring)
This is an appeal against sentence only. The
appellant was convicted in the regional court, Durban, on 5 December
2003 on one
count of robbery with aggravating circumstances
1
and one count of attempted robbery.
2
He was sentenced to the prescribed minimum period
of 15 years’ imprisonment on count one, the court having found
no substantial
or compelling reasons to deviate from that sentence,
and to a further period of ten years’ imprisonment on count
two. The
court ordered that five years of the sentence on count two
should run concurrently with the sentence on count one. He was thus
sentenced to an effective term of 20 years’ imprisonment.
On appeal the KwaZulu-Natal High Court, Pietermaritzburg found no
reason to interfere with the sentence imposed by the regional
court
magistrate and consequently dismissed the appeal. He now appeals to
this court, with the leave of the high court, against
sentence only,
and only on the limited basis that this court may order that the
whole of the sentence on count two should run
concurrently with the
sentence on count one.
The convictions and sentences arise from a robbery that was
committed by a group of men on 7 September 2003, around 10h00.
The appellant together with his co-assailants, who were not
arrested, accosted and robbed two Philippine nationals, a male and
a
female colleague who were walking along Commercial Road, Durban to
attend a conference at the International Convention Centre
(the ICC). The appellant carried a knife. He robbed the woman
of her handbag and fled whilst one of his co assailants
attempted, but did not succeed, to rob the male of his backpack. A
member of the public who witnessed the incident alerted two
police
officers, Sergeant Phungula and Inspector Smith, who were apparently
patrolling in the street not far from the scene and
accompanied them
in their official vehicle to assist in identifying the assailants.
The appellant and one of his co-assailants were spotted whilst
waiting to cross a street, within about three minutes after
receiving the tip-off. Inspector Smith who was driving the police
vehicle stopped the vehicle and the two assailants ran away in
different directions. Sergeant Phungula alighted from the vehicle
and gave chase. Sergeant Phungula testified that when he saw
the
appellant he noticed that the latter was in possession of something,
which looked like a dark coloured bag, concealed
in his
trousers and he decided to focus his attention on him. Inspector
Smith followed in the police vehicle. The appellant entered
a side
street and on realising that Inspector Smith was behind him, changed
direction and ran back towards the direction from
which Inspector
Phungula was approaching. At that stage, approximately two metres
from him, Inspector Phungula observed that
the appellant was
carrying a black and red handbag. He saw him trying to throw it over
a wall but it fell on the pavement next
to the wall. Inspector
Phungula then arrested the appellant. The bag was later retrieved by
the two police officers and was later
identified by the female
complainant as her bag, which had earlier been snatched from her. He
was also positively identified
by the complainant as her attacker.
Her passport and other personal belongings were found inside the
bag.
It is trite that it is the trial court which has
the discretion to impose an appropriate sentence. A court on appeal
should only
interfere if the sentence is vitiated by a material
misdirection.
3
The trial court rightly considered the
uncontroverted evidence of the complainant that she was traumatised
by the attack, the
prevalence of the crime and also its impact on
the South African tourism industry. These, however, were not the
only considerations
that should have been taken into account. There
are mitigating factors. The court in the exercise of its discretion
should as
much as possible ‘strive to achieve a judicious
balance between all relevant factors “in order to ensure that
one
element is not unduly accentuated at the expense of and to the
exclusion of the others”’.
4
In so doing the court should consider both
mitigating and aggravating circumstances.
The robbery for which the appellant was convicted consisted of
handbag snatching with a threat of violence with a knife. No
injuries were sustained by the complainant. The bag was recovered
within a short space of time and none of its contents were missing.
Consequently no permanent loss was suffered by the complainant.
There was no evidence that the male colleague was
subjected to any physical harm. It seems that he successfully
resisted any attempts
to disposses him of his backpack. The whole
incident was perpetrated in an amateurish manner and was, according
to the evidence,
perpetrated hastily and in a rush to flee away. An
effective period of imprisonment of 20 years is a very severe
punishment which
should ordinarily be reserved for particularly
heinous offences.
5
The robbery and the attempted robbery were both
part of a continuous incident. The appellant was convicted on the
attempted robbery
on the basis of common purpose. It was, in my
view, prudent for the court to seek an appropriate sentence for all
of them taken
together.
6
For the above reasons, a case has been made for this court to
interfere with the sentence imposed. Although leave was granted
only
pertaining to the cumulative effect of the sentence, counsel
submitted that we should interfere in relation to the sentence
imposed in respect of count one, even though no leave had been
granted in relation thereto. In effect counsel applied for leave
to
extend the grounds of appeal against sentence, which I am inclined
to grant. In my view there is a basis to interfere.
In the result the following order is made:
The appellant’s appeal against sentence succeeds to the extent
set out below.
The order of the court below is set aside and substituted with the
following:
‘
(i) The sentence on count 1 is set aside
and substituted with a sentence of 12 years’ imprisonment.
The sentence on count two is confirmed.
It is ordered that the sentences on counts one and two should run
concurrently.
The appellant is therefore sentenced to an effective term of 12
years’ imprisonment.’
____________________
Z L L Tshiqi
Judge of Appeal
APPEARANCES
APPELLANT: Adv. A.D. Collingwood
Instructed by Legal Aid
Durban
RESPONDENT: Adv. Ngcobo
Instructed by the Director of Public Prosecutions,
Pietermaritzburg
1
Section
51(2) of the
Criminal Law Amendment Act
105 of 1997 (Part II of Schedule 2)
was held to be applicable.
2
The
conviction on count two was based on the doctrine of common purpose.
3
See
S v Malgas
2001
(1) SACR 469
(SCA) para 12.
4
Moswathupa
v The State
(168/11)
[2011] ZASCA 172
para 4;
S v Banda
1991 (2) SA 352
(BG) at 354E-G.
5
Muller
v The State
[2011] ZASCA 151
;
Moswathupa v The State
(168/11)
[2011] ZASCA 172.
6
S
v Johaar
2010 (1) SACR 23
(SCA) para
14.