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[2012] ZASCA 46
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Thwala v S (679/2011) [2012] ZASCA 46 (29 March 2012)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 679/2011
Not Reportable
In the matter between:
THULANE DZUDZU THWALA
….....................................................................
Appellant
and
THE STATE
…..............................................................................................
Respondent
Neutral citation
:
Thulane Dzudzu Thwala v The State
(679/11)
[2012] ZASCA 46
(29
March 2012)
Coram:
CLOETE,
MHLANTLA, BOSIELO, TSHIQI JJA AND PETSE AJA
Heard:
23 February
2012
Delivered:
29
March 2012
Summary:
Sentence
– imposition of – factors to be taken into account –
appellant convicted of robbery with aggravating
circumstances
involving use of a knife – minimum sentencing provisions of the
Criminal Law Amendment Act 105 of 1997
not applicable –
complainant robbed of a sum of R320 and wrist watch valued at R780 –
no bodily harm caused to complainant
– whilst brandishing a
knife accused’s action limited to threats only.
____________________________________________________________________________________
ORDER
On appeal from:
North
Gauteng High Court (Pretoria) (Raath and Da Silva AJJ sitting as
court of appeal):
The appeal is upheld and
the order of the court below is set aside and replaced with the
following:
‘
1
The appeal is upheld.
2 The sentence imposed by
the court below is set aside and replaced with a sentence of eight
years’ imprisonment which is
ante-dated to 23 August 2004.’
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
PETSE AJA (CLOETE,
MHLANTLA, BOSIELO, TSHIQI JJA concurring):
[1] On 11 August 2004 the
appellant was charged in the regional court, Daveyton, with robbery
with aggravating circumstances (count
1) and with contravening
s 36
read with ss 39(2) and 40 of the Arms and Ammunition Act 75 of 1969
(count 2). Despite his plea of not guilty to both counts he
was
subsequently convicted on count 1 and found not guilty and discharged
on count 2. He was sentenced to twenty-five years’
imprisonment.
[2] His appeal against
conviction to the North Gauteng High Court was dismissed in a
judgment of Raath AJ (in which Da Silva AJ
concurred). But the appeal
against sentence was partially successful. The sentence of 25 years’
imprisonment imposed by the
trial court was set aside and substituted
with a sentence of 15 years’ imprisonment.
[3] Disenchanted with the
outcome of his appeal the appellant applied for leave to appeal to
this court against his conviction on
count 1 and the resultant
sentence. On 12 August 2008 the court below refused the appellant
leave to appeal against conviction
but
granted it in respect of
sentence.
[4] The evidence adduced
at the trail was briefly as follows:
The complainant John
Thwala, a resident of Daveyton, went to a shebeen in his area at
approximately 11h20 where he found the appellant
present. He elected
to sit alone outside. The appellant was also sitting outside with his
friend Busiso. The appellant approached
the complainant who soon
realised that the appellant was intent on taking his cellular
telephone which he held in his hand. Disgusted
at the appellant’s
menacing behaviour the complainant left and returned home to sleep.
He later returned to the shebeen and
there met the appellant at the
gate of the premises as he (the complainant) arrived. The appellant
drew an okapi knife and robbed
him of his wristwatch and a sum of
R320. The complainant did not offer any resistance nor did he sustain
any injuries.
[5] The next morning the
complainant reported the incident to the appellant’s
grandmother and uncles. Thereafter he laid a
charge of robbery
against the appellant. Nothing was recovered from the appellant.
[6] In imposing sentence
on the appellant the trial court said the following:
‘
The
court considers your personal [circumstances] as your attorney has
outlined. You [are] still young [at] 25 years, . . . But
the court
finds that there are no compelling circumstances to deviate from the
minimum sentences. Furthermore you have two directly
relevant
previous convictions of assault which involve violence and malicious
injury to property which involves violence and destroying
another
person’s property which is very relevant to robbery.’
It then proceeded to
impose a sentence of twenty-five years’ imprisonment.
[7] In imposing the
sentence it did, the trial court evidently had regard to the
provisions of s 51(2) of the Criminal Law Amendment
Act 105 of 1997
(the Act). Section 51(2) of the Act provides:
‘
(2)
Notwithstanding any other law, but subject to subsections (3) and
(6), a regional court or a High Court shall sentence a person
who has
been convicted of an offence referred to in –
(a)
Part II of Schedule 2, in the
case of –
(i)
a first offender, to imprisonment for a period not less than 15
years;
(ii)
a second offender of any such offence, to imprisonment for a period
not less than 20 years; and
(iii)
a third or subsequent offender of any such offence, to imprisonment
for a period not less than 25 years.’
Robbery,
when there are aggravating circumstances as defined in
s 1(1)
(b)
of the
Criminal Procedure Act 51 of 1977
, is one of the
offences referred to in
Part II
of Schedule 2 of the Act.
[8] The court below, as
mentioned earlier in this judgment, dismissed the appeal against
conviction. As to the sentence it held
that the trial court’s
view that the appellant was a third offender for purposes of Part II
of Schedule 2 as contemplated
in s 51(2) of the Act, was erroneous.
It held that the appellant’s two previous convictions –
being assault with intent
to do grievous bodily harm and malicious
damage to property – were not previous convictions as
contemplated in s 51(2) of
the Act. But for this erroneous view of
the trial court, the court below held that the trial court ought to
have imposed a sentence
of fifteen years’ imprisonment. It
consequently set aside the sentence of twenty-five years’
imprisonment and substituted
it with a sentence of fifteen years’
imprisonment, this being the prescribed minimum sentence for robbery
in terms of the
Act.
[9]
In granting leave to appeal against sentence in an extempore judgment
by Hartzenberg J in which Potteril AJ concurred, the court
below
reasoned that
‘
.
. . there is some room for an argument that substantial and
compelling circumstances exist for imposing a lesser sentence’
and that ‘the
sentence
of 15 years’ imprisonment seems . . . looking at the whole
matter that [it] is excessive for the act that has been
committed
.’
[10]
In this court counsel for the appellant argued, as a preliminary
point, that both the trial court and the court below were
oblivious
to the fact that the appellant was not apprised, either in the charge
sheet or otherwise, that the provisions of s 51(2)
of the Act would
be invoked. It was contended that it was during sentencing that
mention was made for the first time that the so-called
minimum
sentencing legislation was applicable. The implication of this
submission is that the appellant’s fair trial rights
were
infringed. Counsel for the appellant pinned his hopes on
S
v Chowe
2010 (1) SACR 141
(GNP) in which the
following dictum appears
at para 22-23:
‘
.
. . it is clear that the appellant had not been warned at the
beginning of the case that the minimum sentence was applicable.
The
fact that the accused was legally represented, in my view, does not
take away the need to inform the accused that such minimum
sentencing
dispensation of the Act would be relied upon for sentencing. Section
35(3)
(a)
of
the Constitution requires that the accused be informed of the charge
with sufficient detail to answer to it. This entails, in
my view,
inter alia, the applicability of the minimum sentencing provisions of
the Act.
I
am of the view that a perfunctory approach by the lower courts with
regard to the minimum sentence regime is not to be countenanced.
The
record must speak for itself, that, right at the pleading stage,
irrespective of whether such an accused person is legally
represented
or not, he has been informed of the applicability of the Minimum
Sentence Act. By so insisting we shall be ensuring
that the right to
a fair trial is ingrained in our criminal jurisprudence, ensuring
that at all times accused persons make an informed
decision in the
preparation and the conducting of their defences.’ (Footnotes
omitted.)
I shall return to what is
said in para 23 of
Chowe
in a moment.
[11] In
S v Legoa
2003 (1) SACR 13
(SCA) this court, in considering the question
whether the failure by the State to alert an accused person in the
charge sheet that
it would be relying on the provisions of the
minimum sentencing legislation, concluded that under the common law
it was a salutary
practice that the charge sheet should set out all
the facts the State intended to rely on to bring the accused within
an enhanced
sentencing jurisdiction. It went on to say the following
at para 20-21:
‘
But
under the constitutional dispensation it can certainly be no less
desirable than under the common law that the facts the State
intends
to prove to increase sentencing jurisdiction under the 1997 statute
should be clearly set out in the charge-sheet.
The
matter is, however, one of substance and not form, and I would be
reluctant to lay down a general rule that the charge must
in every
case recite either the specific form of the scheduled offence with
which the accused is charged, or the facts the State
intends to prove
to establish it. A general requirement to this effect, if applied
with undue formalism, may create intolerable
complexities in the
administration of justice and may be insufficiently heedful of the
practical realities under which charge-sheets
are frequently drawn
up. The accused might in any event acquire the requisite knowledge
from particulars furnished to the charge
or, in a Superior Court,
from
the summary of substantial facts the State is obliged to furnish.
Whether the accused’s substantive fair trial right,
including
his ability to answer the charge, has been impaired, will therefore
depend on a vigilant examination of the relevant
circumstances.’
It is not without
significance that this court is
Legoa
refrained from laying
down a general proposition that failure to do so would vitiate the
proceedings.
[12] Hot on the heels of
Legoa
was
S v Ndlovu
2003 (1) SACR 331
(SCA) in which
this court stated (para 12):
‘
The
enquiry, therefore, is whether, on a vigilant examination of the
relevant circumstances, it can be said that an accused had
had a fair
trial. And I think it is implicit in these observations that where
the State intends to rely upon the sentencing regime
created by the
Act a fair trial will generally demand that its intention pertinently
be brought to the attention of the accused
at the outset of the
trial, if not in the charge-sheet then some other form, so that the
accused is placed in a position to appreciate
properly in good time
the charge that he faces as well as its possible consequences.
Whether, or in what circumstances, it might
suffice if it is brought
to the attention of the accused only during the course of the trial
is not necessary to decide in the
present case. It is sufficient to
say that what will at least be required is that the accused be given
sufficient notice of the
State’s intention to enable him to
conduct his defence properly.’
It should be emphasised
that both
Legoa
and
Ndlovu
make it plain that the
fairness or otherwise of the trial in the context of the provisions
of the minimum sentencing legislation
ought not to be determined in
the vacuum but within the context of the circumstances of each case.
[13] I now revert to the
passage quoted from
Chowe
in para 10 above. The point I seek
to highlight in relation thereto is that to the extent that the last
two sentences of that passage
suggest that if the accused has not
been pertinently informed of the applicability of the minimum
sentencing legislation ‘right
at the pleading stage’ that
in itself, regardless of all else, would vitiate the proceedings, I
do not, with respect, consider
it to accurately reflect the state of
the law on this subject. It is, in my view, at odds with what this
court said both in
Legoa
and
Ndlovu
above.
[14] I turn now to
consider the question whether on the peculiar facts of this case the
invocation of the provisions of the minimum
sentencing legislation at
so late a stage during
the trial infringed the
appellant’s rights to a fair trial. The trial court in its
judgment on sentence made only a passing
reference to the minimum
sentencing legislation. Even then it did so in a most perfunctory
fashion. In
S v Malgas
2001 (1) SACR 469
(SCA)
(2001 (2) SA
1222
;
[2001] 3 All SA 220)
para 25 this court made it plain that ‘all
factors . . . traditionally taken into account in sentencing (whether
or not they
diminish moral guilt) continue to play a role’ when
considering the question whether substantial and compelling
circumstances
as contemplated in s 51(3) exist.
[15] The appellant was at
no time, either before or during his trial, warned that the minimum
sentencing legislation would be invoked.
Thus he did not have even
the slightest inkling that this might occur until he was confronted
with that reality when the trial
court made a passing reference to
such legislation when imposing sentence. To my mind it was therefore
unfair and highly prejudicial
to the appellant for the trial court to
have done so.
[16] It therefore follows
that when it came to sentence the trial court ‘had a clean
slate on which to inscribe whatever sentence
it thought fit,’
(
Malgas
para 8) untrammelled by s 51(2) of the Act.
[17] The appellant
contended that the sentence imposed on him is disturbingly
inappropriate and that the court below misdirected
itself in its
approach to sentence.
[18] At the outset it
bears mention that the principle that applies with respect to an
appeal against sentence is well-established.
It is trite that
sentencing is a matter pre-eminently within the discretion of the
trial court and that a court of appeal will
interfere with the
exercise of such discretion only on limited grounds.
[19] In
Malgas
this court restated the test in these terms at para
12:
‘
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its
exercise of
that discretion, and appellate Court is of course entitled to
consider the question of sentence afresh. In
doing
so, it assesses sentence as if it were a court of first instance and
the sentence imposed by the trial court has no relevance.
As it is
said, an appellate Court is at large. However, even in the absence of
material misdirection, an appellate court may yet
be justified in
interfering with the sentence imposed by the trial court. It may do
so when the disparity between the sentence
of the trial court and the
sentence which the appellate Court would have imposed had it been the
trial court is so marked that
it can properly be described as
“shocking”, “startling” or “disturbingly
inappropriate”.’
In this case this court
is at large to interfere given the material misdirection committed by
the trial court when it applied the
minimum sentencing legislation.
[20] When imposing
sentence a court must ordinarily have regard to the fact that the
imposition of sentence is principally a matter
of judicial discretion
save where the legislature has decreed otherwise. This then requires
that the sentencing court should have
regard to, inter alia, the
peculiar facts of each case, the crime and the personal circumstances
of the offender. (See eg
S v Zinn
1969 (2) SA 537
(A) at
540G).
[21] It is plain from the
judgments of the courts that crimes involving violence, as robbery
does, are always viewed in a serious
light. Their gravity is, for
example, reflected in a passage from the judgment of the
Constitutional Court in
S v Makwanyane & another
[1995] ZACC 3
;
1995 (2)
SACR 1
(CC) para 117:
‘
The
need for a strong deterrent to violent crime is an end the validity
of which is not open to question. The State is clearly entitled,
indeed obliged, to take action to protect human life against
violation by others. In all societies there are laws which regulate
the behaviour of people and which authorize the imposition of civil
or criminal sanctions on those who act unlawfully. This is
necessary
for the preservation and protection of society. Without law, society
cannot exist. Without law, individuals in society
have no rights. The
level of violent crime in our country has reached alarming
proportions. It poses a threat to the transition
to democracy, and
the creation of development opportunities for all, which are primary
goals of the Constitution. The high level
of violent crime is a
matter of common knowledge and is amply borne out by the statistics
provided by the Commissioner of Police
in his
amicus
curiae
brief.
The power of the State to impose sanctions on those who break the law
cannot be doubted. It is of fundamental importance
to the future of
our country that respect for the law should be restored, and that
dangerous criminals should be
apprehended
and dealt with firmly. Nothing in this judgment should be understood
as detracting in any way from that proposition.
But the question is
not whether criminals should go free and be allowed to escape the
consequences of their anti-social behaviour.
Clearly they should not;
and equally clearly those who engage in violent crime should be met
with the full rigour of the law.’
[22] The crime committed
by the appellant is, apart from its seriousness, also prevalent.
Moreover the appellant’s ill-gotten
loot was not recovered.
These factors dictate that the elements of retribution and deterrence
must come to the fore when assessing
an appropriate sentence. But
there are strong mitigating factors weighing heavily in favour of the
appellant. Although not a youthful
offender the appellant is a
relatively young man; the complainant was not injured; although he
drew a knife he did not use it;
no violence or force was used to
perpetrate the crime. And although the loss suffered by the
complainant is not insignificant it
was not substantial.
[23] I have given
consideration to the cases cited in the appellant’s heads of
argument in support of the proposition that
the trial court ought to
have found that substantial and compelling circumstances exist and
thus sentence the appellant accordingly.
However, I do not consider
it appropriate to have regard to those cases given the conclusion
reached in this case that it was not
competent for the trial court on
the facts of this case to invoke the minimum sentencing legislation.
As Olivier JA made it plain
in
S v Jimenez
2003
(1) SACR 507
(SCA) para 12 that:
‘
In
general, it is not permissible to have regard, without the necessary
caveats, qualifications and distinctions, to sentences imposed
on the
strength of minimum sentence provisions in a case where the minimum
provisions are not applicable. The point of departure
in prescribing
maximum and minimum sentences differs substantially from that
applicable to cases where no such provisions are prescribed;
and
equating without the necessary caveats, qualifications and
distinctions the reasoning of the one with the other will often
not
be valid.’
Thus, having regard to
those cases would be ill-advised.
[24] On a conspectus of
all the relevant considerations it is my view that a sentence of
eight years’ imprisonment would have
satisfied the dictates of
justice in the circumstances of this case.
[25] Before concluding it
is unfortunately necessary to make some adverse comments on what
transpired in the trial court. First,
upon the conclusion of the
adduction of evidence the following exchange took place between the
appellant and the trial court:
‘
Court:
Okay. Accused do you have anything to say? Regarding the merits. Or
whether you should be found guilty or not and the reasons.
Accused:
I will ask the court to find me not guilty because I did not do it
your worship. That is all your worship it is just that
I am not
guilty.’
As the appellant was
represented at the trial it was procedurally impermissible of the
trial court to invite him to address it on
the merits of the case
when his attorney had in fact already done so.
[26] Moreover the manner
in which the trial court addressed the appellant as ‘accused’
was demeaning. In
S v Gwebu
1988 (4) SA 155
(W) it was held
that the habit of addressing accused persons by the appellation
‘accused’ or its Afrikaans equivalent
‘beskuldige’
was both disrespectful and degrading. At
158G-H
the court held
that:
‘
It
is no cause for difficulty for people to be called by their proper
names. I can find no reason for the appellant, in this case,
when
addressed directly by the magistrate, not being called “Mr
Gwebu”. Members of the public who appear in our courts,
whether
as accused or as witnesses, are entitled to be treated courteously
and in a manner in keeping with the dignity of the court.’
I wholeheartedly align
myself with these sentiments bearing in mind that s 10 of the
Constitution provides, in the Bill of Rights,
that:
‘
Everyone
has inherent dignity and the right to have their dignity respected
and protected.’
[27] Second, in the
course of its judgment the trial court said the following:
‘
However
the other thing that the court looks at is that the accused went and
robbed a person who he knew was very sickly and the
reason he robbed
him was because he knew that this person is very weak. Also the way
he committed his robbery, he flicked a knife
and threatened him and
he is a person who he knew for five years. They used to sit and drink
together.’
Other than that the
complainant had testified that he had known the appellant for five
years there was simply no evidence that the
appellant robbed the
complainant because he knew that he was very weak. Nor was there any
evidence that the appellant and the
complainant ‘used
to sit and drink together’.
[28] With respect to the
inquiry in terms of s 12 of the Arms and Ammunition Act 75 of 1969
(since repealed by the
Firearms Control Act 60 of 2000
) the trial
court said that:
‘
if
[the appellant] had a firearm [he] would in all probability have
killed the complainant, which shows clearly that [he] is a dangerous
person with a firearm.’
Again there was no basis
for this conclusion whatsoever.
[29] With respect to the
appellant’s application for leave to appeal his conviction and
sentence – which the trial court
refused – it stated that
the test for leave to appeal is whether ‘another court will
come to a different conclusion
on the same evidence.’ This is,
however, not the test. The proper test, which is trite, is whether
there is a reasonable
prospect of success on appeal. See eg
Rex v
Baloi
1949 (3) SA 523
(A) at 524;
S v Mabena & another
2007 (1) SACR 482
(SCA) at 494e-f
.
[30] In the result the
appeal succeeds. The sentence imposed by the court below is set aside
and in its place the following sentence
is substituted:
‘
1
The appeal is upheld.
2 The sentence imposed by
the court below is set aside and replaced with a sentence of eight
years’ imprisonment which is
ante-dated to 23 August 2004.’
____________________
X M Petse
Acting Judge of Appeal
APPEARANCES
APPELLANT: L A Van Wyk
(Ms)
(with her J M Mojuto)
Instructed by : Legal Aid
South Africa, Pretoria
Legal Aid South Africa,
Bloemfontein
RESPONDENT: M J Makgwatha
Instructed by: The
Director of Public Prosecutions, Pretoria;
The Director of Public
Prosecutions, Bloemfontein