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[2021] ZASCA 25
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Kubheka and Another v S (200/2020) [2021] ZASCA 25 (24 March 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 200/2020
In the matter
between:
NHLANHLA
ARTHUR KUBHEKA
FIRST
APPELLANT
ARMSTRONG
NGIDI
SECOND
APPELLANT
and
THE STATE
RESPONDENT
Neutral
citation:
Kubheka
and Another v The State
(200/2020)
[2021] ZASCA 25
(24 March 2021)
Coram:
NAVSA ADP, DLODLO
and MBATHA JJA, and KGOELE and WEINER AJJA
Heard:
25 February 2021
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10:00 am on 24 March 2021.
Summary:
Criminal law and procedure
–
appeal
against sentence – high court set aside sentences imposed by
regional court and increased length of imprisonment –
no
material misdirection – no indication that trial court
exercised discretion improperly – no basis for high court
to
interfere – appeal upheld.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Johannesburg (Vally J and Malungana AJ
sitting as court of appeal):
1.
The appeals against the increased sentences imposed by the high court
are upheld.
2.
The order of the high court in respect of the sentence is set aside
and replaced with the
following order:
‘
The
appeals against sentence are dismissed.’
3.
The result is that the sentences imposed by the Regional Division,
North Gauteng, Randburg,
set out hereafter, are reinstated:
‘
(a)
Accused 1 is sentenced to 4 years’ imprisonment of which 2
years is suspended for
5 years on condition that the accused is not
convicted of theft or any offence involving an element of dishonesty
during the period
of suspension.
(b)
Accused 2 is sentenced to 4 years’ imprisonment.
(c)
In terms of
s 103(1)
of the
Firearms Control Act 60 of 2000
, each
accused is declared unfit to possess a firearm.’
JUDGMENT
MBATHA JA (NAVSA
ADP, DLODLO JA, and KGOELE and WEINER AJJA concurring)
[1]
On 12 October 2017, the appellants, Messrs Nhlanhla Arthur Kubheka
(first appellant) and Armstrong Ngidi
(second appellant) were each
convicted in the Regional Division, North Gauteng, Randburg (‘the
regional court’), of
one count of theft of a cellular telephone
and an iPod out of a motor vehicle. On 23 January 2018, the first
appellant was sentenced
to four years' imprisonment, of which two
years were suspended for a period of five years on condition that he
was not convicted
of theft or any offence involving an element of
dishonesty during the period of suspension. The second appellant was
sentenced
to four years’ imprisonment. The appellants were
declared unfit to possess a firearm in terms of
s 103(1)
of the
Firearms Control Act 60 of 2000
. With leave of the trial court the
appellants appealed to the Gauteng Division of the High Court,
Johannesburg (the ‘high
court’) in respect of both
conviction and sentence.
[2]
On 22 May 2019, the day of the hearing of the appeal, the high court
called upon the appellants to provide
reasons why each of their
sentences should not be increased on appeal in the event that the
appeal against conviction was dismissed.
The hearing was adjourned to
20 June 2019. On that day the high court entertained the appeal.
[3]
In its judgment the high court (Vally J, Malungana AJ concurring)
restated the evidence that was adduced
in the regional court. It was
clear that the appellants had jammed the locking signal on the remote
control of the Mercedes Benz
vehicle that had been parked adjacent to
their motor vehicle, a Chevrolet Aveo at the parking area of the
Randburg Magistrates’
Court, and had stolen the cellular
telephone and an iPod. The high court reiterated that the State’s
case was advanced by
the direct evidence of the security officer at
the court, Ms Winnie Mutavhatsindi, who observed the appellants
through CCTV monitors
leaving their motor vehicle and opening the
door of the Mercedes Benz. This was further supported by the
uncontested evidence that
the iPod belonging to Mr Anthony James
Batistich, the complainant, was found in the backseat of the
Chevrolet one of the appellants
had hired, and in which they had
travelled to the Randburg Magistrates’ Court. One of the
appellants had also demonstrated
to the police officers how they used
the remote jammers to prevent the locking of the doors of a motor
vehicle.
[4]
The high court concluded that the appellants’ defences were
correctly rejected by the regional
court as not being a true account
of the circumstances underlying the finding of the iPod in their
motor vehicle. Consequently,
it held that the court was correct in
finding that the State had proven beyond a reasonable doubt, all the
elements of the offence
and dismissed the appeal against conviction.
It, however, set aside the sentences imposed by the regional court
and substituted
it with the increased sentences of five years’
and eight years’ direct imprisonment, respectively. The high
court
based its decision principally on the prevalence of the offence
and that the offence had been carefully planned and executed. It
concluded that the regional court had downplayed the interests of
society and overemphasised the interests of the appellants. The
appellants petitioned this Court for special leave to appeal against
both conviction and sentence. They were however granted leave
to
appeal against sentence only.
[5]
Before us it was pointed out on behalf of the appellants that the
State had initially not opposed the
appropriateness of the sentence
imposed by the regional court. It was submitted that
S
v De
Beer
[2017] ZASCA 183
;
2018 (1) SACR 229
(SCA) demonstrated the
same error by the High Court, Johannesburg (Vally J and Siwendu AJ),
namely, an unjustified increase in
sentence on appeal that was later
overturned by this court. Counsel on behalf of the appellants
contended that the appellants were
both professionals who ought to
have been considered suitable candidates for a sentence of
correctional supervision, in terms of
s 276
(1)(
h
) or (
i
)
of the
Criminal Procedure Act 51 of 1977
. It was submitted on behalf
of the appellants that the high court had arbitrarily doubled the
sentences of the appellants on the
grounds of the seriousness and
prevalence of the offence and the interests of society, with the
consequence that the newly imposed
sentences were disproportionate to
the offence committed. It was contended that the high court had
disregarded the personal circumstances
of the appellants and that it
erred in over-emphasising the interests of society and the gravity of
the offence.
[6]
It is trite that the power of an appellate court to interfere with a
sentence imposed by a lower court
is limited. In
S
v Bogaards
[1]
,
the Constitutional Court stated as follows:
‘
It can only
do so where there has been an irregularity that results in a failure
of justice; the court below misdirected itself
to such an extent that
its decision on sentence is vitiated; or the sentence is so
disproportionate or shocking that no reasonable
court could have
imposed it.’
[7]
It is clear that the trial court took into account all relevant
factors in considering an appropriate
sentence for the appellants. It
took into account the appellants’ personal circumstances which
were as follows: the first
appellant was 44 years old when the crimes
were committed; he is a B. Com and B. Sc. Engineering (cum laude)
graduate who is a
member of the Professional Engineers of South
Africa; he is a director of his own engineering company, which is
based in KwaZulu-Natal
with a staff component of 21 employees;
he draws a net income of R1 million per annum; he is the father and
sole-provider
to eight children; and he was a first offender.
[8]
The second appellant was 46 years old at the time when he was
sentenced; he is married and a father
of two children, who are
dependent on him for financial support; after completing matric he
acquired the relevant certificates
in the hospitality industry and he
runs a marketing and catering company together with his wife; his
gross drawings totalled R69 000
per month; and his company
employed four permanent staff members. He has two previous
convictions for fraud and theft, though they
had happened more than
17 years prior to the time of sentencing in the present case.
[9]
As aggravating circumstances, the regional court took into account
the nature and seriousness of the
offence, the value of the items
stolen from the motor vehicle, the prevalence of the offence, and
that it required a skilled person
to commit the offence. The
individual sentences imposed by the regional court were appropriate
as they took into account the purposes
of punishment, which are aimed
at rehabilitation, preventative deterrence and retribution.
[10]
As stated above, the high court found that the sentence imposed by
the regional court did not sufficiently appreciate
the interests of
society, the gravity of the offence, and that it was unduly and
overly generous in assessing the interests of
the appellants. It
found that the crime was carefully planned, prevalent and was
committed by sophisticated businessmen who used
their technical
skills to steal from the motor vehicle. Counsel for the State was
hard pressed to point to any misdirection on
the part of the regional
court. She was reluctantly, but correctly, constrained to agree that
the high court should not have interfered
with the sentences imposed
by the regional court. In substituting the sentences the high court
failed to demonstrate that the regional
court had not exercised its
sentencing discretion at all or exercised it improperly or
unreasonably. The high court itself was
guilty of over-emphasising
the seriousness of the offence and without due regard to
proportionality. Counsel for the State
conceded that the
increased sentences were more severe than what high courts had in the
past held to be appropriate in cases of
this kind.
[2]
One of course, must be cautious about comparisons with other cases.
Each case must be decided on its own merits. A court of appeal
may,
however, not substitute a sentence simply because it prefers it and
thereby usurp the discretion of the trial court.
[3]
In the present case there was no basis to interfere with the
sentences imposed by the regional court and doubling the
sentences
of direct imprisonment was unwarranted.
[11]
Having regard to what is set out above, it is clear that having
regard to the prevalence and seriousness of the
offence and that the
appellants could not have been motivated by need but rather by greed,
there is no room for concluding as suggested
on behalf of the
appellants that correctional supervision was a viable sentence. The
regional court can thus not be faulted for
imposing direct
imprisonment.
[12]
Accordingly, the sentences imposed by the regional court should
stand, as they are proportionate to the offence
committed by the
appellants. In the circumstances, the order is as follows:
1.
The appeals against the increased sentences imposed by the high court
are upheld.
2.
The order of the high court in respect of sentence is set aside and
replaced with the following
order:
‘
The
appeals against sentence are dismissed.’
3.
The result is that the sentences imposed by the Regional Division,
North Gauteng, Randburg,
set out hereafter, are reinstated:
‘
(a)
Accused 1 is sentenced to 4 years’ imprisonment of which 2
years is suspended for
5 years on condition that the accused is not
convicted of theft or any offence involving an element of dishonesty
during the period
of suspension.
(b)
Accused 2 is sentenced to 4 years’ imprisonment.
(c)
In terms of
s 103(1)
of the
Firearms Control Act 60 of 2000
, each
accused is declared unfit to possess a firearm.’
Y T MBATHA
JUDGE OF APPEAL
APPEARANCES:
For
appellants:
J C Kruger
Instructed
by:
BDK Attorneys,
Johannesburg
Symington & De
Kok, Bloemfontein
For
respondent:
E H F Le Roux
Instructed
by:
The Director of Public
Prosecutions, Johannesburg
The Director of
Public Prosecutions, Bloemfontein
[1]
S v
Bogaards
[2012]
ZACC 23
;
2012 BCLR 1261
(CC);
2013 (1) SACR 1
(CC) para 41.
[2]
For
example, in
S
v Smith
2002
(2) SACR 488
(C), where there was theft from a motor vehicle, a 22-
year-old was sentenced to 3 years’ imprisonment, which on
review
was reduced to 18 months’ imprisonment, of which 9
months were suspended for five years. In
S
v Maritz
1994 (1) SACR 456
(T) a 35-year-old, with previous convictions, was
sentenced to 6 years imprisonment, which on review was reduced to a
sentence
of 6 years’ imprisonment, of which 3 years were
suspended for a period of 5 years. Counsel for the State informed us
that
regional court sentences for similar cases were in the region
between 3 to 5 years’ imprisonment.
[3]
S
v Malgas
[2001]
ZASCA 30
;
[2001] 3 All SA 220
(A) para 12.