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[2012] ZASCA 142
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Mmboi and Another v S (167/12) [2012] ZASCA 142 (28 September 2012)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 167/12
Not reportable
In
the matter between:
AZWIHANGWISI ROBERT MMBOI
...............................................
.FIRST
APPELLANT
ANDRIES NDISHAVHELAFHI MUDAU
.....................................
SECOND
APPELLANT
and
THE
STATE
.............................................................................................
RESPONDENT
Neutral citation:
Azwihangwisi
Mmboi v The State
(167/12)
[2012] ZASCA 142
(28 September 2012).
Coram:
Mpati P, Ponnan,
Mhlantla, Petse JJA and Erasmus AJA
Heard:
6 September 2012
Delivered: 28 September 2012
Summary: Murder ─ common
purpose ─ absence of proof of prior agreement ─ appellant
a passive bystander ─
held, in the absence of conduct
manifesting active association in killing, not liable for murder.
Sentence ─ cumulative effect
of sentences ─ concurrence
of sentences ─ when appropriate ─ two sentences ordered
to run concurrently.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
Limpopo High
Court, Thohoyandou (Makgoba AJ sitting as court of first instance):
1 The appeal of the second appellant
is allowed to the limited extent that the sentence imposed on count 2
(robbery) is ordered
to run concurrently with the sentence imposed on
count 1 (murder). The second appellant will thus serve an effective
term of twenty
years’ imprisonment.
2 The effective term of twenty years’
imprisonment shall run from 10 November 2004.
________________________________________________________________
JUDGMENT
________________________________________________________________
PETSE JA (Mpati P, Ponnan, Mhlantla
JJA and Erasmus AJA concurring):
Introduction
[1] Arising out of an incident which
occurred on 21 December 2003 at about 21h00 and at Lwamondo village
in the district of Vuwani,
Limpopo, the two appellants (together with
a third accused who does not feature in this appeal) were tried in
the Limpopo High
Court, Thohoyandou on a charge of murder and robbery
with aggravating circumstances as defined in s 1 of the Criminal
Procedure
Act 51 of 1977 (the Act). The indictment explicitly stated
that the provisions of ss 51(1)(
a
) and 51(2) of the Criminial
Law Amendment Act 105 of 1997 (the so-called minimum sentences
legislation) applied respectively to
the counts of murder and
robbery.
[2] In its summary of substantial
facts furnished in terms of s 144(3)(
a
) of the Act, the State
alleged that the appellants, together with three other cohorts,
planned to rob the deceased. In pursuance
of that plan they followed
the deceased after he had left the Bar Lounge, where he had been
drinking with friends and accosted
him. The first appellant tripped
the deceased who fell to the ground. Joshua Nematundani who was
accused 2 in the court below stabbed
the deceased with a knife whilst
demanding money from him, which the deceased did not have. He then
robbed the deceased of his
canvass shoes whilst three of their
cohorts kept watch at a short distance from the scene of the robbery
to ensure that their plan
was effectively executed.
[3] The appellants were respectively
accused numbers 1 and 5 at the trial. They were initially indicted
together with three other
persons, namely, Joshua Nematundani and to
whom I shall henceforth refer as Joshua, Eric Dovhani Todani (accused
3) and Emmanuel
Gundo Radzuma (accused 4). Charges were withdrawn
against Todani and Radzuma before the commencement of the trial and
both were
subsequently called as State witnesses against the
appellants.
[4] The high court convicted the
appellants as charged and sentenced them to twenty years’
imprisonment on the murder count
and eighteen years’
imprisonment on the robbery count. These sentences were not ordered
to run concurrently. Thus the effective
term of imprisonment in
respect of each appellant is 38 years’ imprisonment.
[5] Subsequently the high court
granted the first appellant leave to appeal to this court against
both his conviction and sentences
whilst the second appellant was
granted leave to appeal only against his sentences.
[6] The appeal was subsequently heard
in this court on 6 September 2012. After hearing argument by counsel
we made an order in terms
of which the appeal of the first appellant
was upheld and both his conviction and sentences set aside. When
making that order we
indicated that our reasons therefor would be
furnished later. The following are those reasons.
The facts
[7] It is necessary to sketch the
circumstances of the commission of the crimes that led to the
prosecution of the appellants in
a little more detail.
[8] The State called several witnesses
to support its case. Only the evidence of Todani and Radzuma is
relevant for present purposes.
Both were accomplices who were duly
warned by the high court in terms of the provisions of s 204 of
the Act. Todani testified
that on 21 December 2003 he was at
Tshivhumbe Bar Lounge drinking liquor together with six other
persons, two of whom were the
appellants. The second appellant
suggested that the deceased be robbed because he had a lot of money;
this he deduced from the
fact that the deceased was drinking
expensive liquor. When the Bar Lounge closed at about 21h00, all of
the patrons left, including
the deceased who left with three
companions. Todani and his cohorts proceeded to follow the deceased.
At a certain spot Joshua
ordered the rest of his companions to stop,
saying that he was going to take money and canvass shoes from the
deceased. Joshua
accosted the deceased and struck him with a beer
bottle. Subsequently Todani heard the deceased saying that ‘he
[could] kill
him because he did not have the money which he wanted.’
Joshua then called upon the second appellant to lend him a knife
whereupon he stabbed the deceased three times. Todani went on to
testify that at all material times the first appellant was standing
next to him together with Radzuma. After the robbery, Joshua left
with the second appellant whilst Todani left for a different
destination together with the first appellant and Radzuma.
[9] Radzuma testified that he was also
at Tshivhumbe Bar Lounge together with the appellants, Todani, Joshua
and two other men unknown
to him. Joshua suggested that they ‘should
work with’ the deceased which he understood to mean that the
deceased ‘should
be assaulted’. When the bar closed, they
left as did the deceased together with the latter’s companions.
En-route they
saw four people walking ahead of them. As they closed
the gap between them and this group the first appellant approached
the group
and assaulted the deceased with a bottle. The deceased fell
to the ground and the first appellant put his foot on the deceased’s
neck. Joshua joined the first appellant and demanded money from the
deceased who said that he had none. Joshua called upon the
second
appellant to lend him his knife, who in turn obliged, and Joshua then
stabbed the deceased twice in his upper body. The
first appellant
then intervened and told him to stop because the deceased had ‘had
enough’, whereafter Joshua removed
the deceased’s canvass
shoes. Upon being questioned by the court, Radzuma said that when he
and his companions left the Bar
he was not aware that the deceased
would be confronted.
[10] The first appellant also
testified in his own defence. It is, however, unnecessary to analyse
his evidence in any great detail.
In essence, the first appellant
denied that he was a party to any agreement to rob the deceased. His
evidence coincides, in material
respects, with that of Todani more
particularly on the aspect that whilst they were walking together
Joshua instructed them to
stop, separated from them and approached
the group of four men of which the deceased was part. He further
testified that Joshua
came back and borrowed a knife from the second
appellant and, armed with the knife from the latter, Joshua returned
to where the
deceased was. Soon thereafter the first appellant heard
a person screaming saying that ‘he did not have money’.
After
a while Joshua re-joined them holding a knife in his right hand
and a pair of canvass shoes in his left hand.
[11] The high court concluded, on the
strength of the evidence presented before it, that the guilt of the
first appellant was established.
In evaluating the evidence, the high
court found that the evidence of Della Mulaudzi (the deceased’s
sister who testified
on the condition the deceased was in when he
returned home that fateful night) and Livhuwani Munwada who was with
the deceased
when the latter was accosted but ran away, did not
advance the State’s case. It also recognised that the fate of
the trial
hinged on the evidence of Todani and Radzuma who were
accomplices. It went on to say the following:
‘
Then
the witness, Radzuma had an opportunity of observing what was the
accused 1’s participation, that he is the person who
hit the
deceased with a bottle, the person who, while the deceased had fallen
down pressed him down with his leg or his knee and
this witness
happens to have been at a distance of about five to six metres away
from the deceased and accused 1.
Hence
I say that the two witnesses corroborate each other on material
aspects. They are accomplices, they were at the scene, they
know all
that happened, especially the witness, Eric [Todani], who even
conceded that he was part and parcel of the whole plan.’
Discussion
[12] I deal first with the first
appellant. It is noteworthy that the indictment alleged that the
first appellant and his cohorts
acted in furtherance of a common
purpose. Professor J M Burchell deals with the doctrine of common
purpose in
Principles of Criminal Law
3ed (2008) at 574. The
learned author states that in essence the doctrine applies:
‘
Where
two or more people agree to commit a crime or actively associate in a
joint unlawful enterprise, each will be responsible
for the specific
criminal conduct committed by one of their number which falls within
their common design.’
[13] It is trite that the State bore
the onus of proving the guilt of the first appellant beyond
reasonable doubt. As it was held
in
S v Van der Meyden
1999
(2) SA 79
(W), which was approved and applied by this court in
S v
Van Aswegen
2001 (2) SACR 97
(SCA), an accused is entitled to be
acquitted if there exists a reasonable possibility that he might be
innocent. In assessing
whether or not the guilt of the accused has
been established this court in
S v Hadebe & others
1998
(1) SACR 422
(SCA) at 426e-h approved of the approach adopted in
Moshephi & others v R
(1980-1984) LAC 57
at 59F-H in which
the following was
stated:
‘
The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the appellants was
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful aid
to a
proper understanding and evaluation of it. But, in doing so, one must
guard against a tendency to focus too intently upon
the separate and
individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood for the trees.’
[14] In this case the first appellant
was convicted on the basis of the evidence of the accomplices. It is
trite that when one deals
with the evidence of an accomplice it is
incumbent upon the trial court to properly evaluate such evidence. In
R v Ncanana
1948 (4) SA 399
(A) at 405, Schreiner JA put it
thus:
‘
The
cautious Court or jury will often properly acquit in the absence of
other evidence connecting the accused with the crime, but
no rule of
law or practice requires it to do so. What is required is that the
trier of fact should warn himself, . . . , of the
special danger of
convicting on the evidence of an accomplice; for an accomplice is not
merely a witness with a possible motive
to tell lies about an
innocent accused but is such a witness peculiarly equipped, by reason
of his inside knowledge of the crime,
to convince the unwary that his
lies are the truth. This special danger is not met by corroboration
of the accomplice in material
respects not implicating the accused, .
. . The risk that he may be convicted wrongly although sec 285 has
been satisfied will
be reduced, . . . if there is corroboration
implicating the accused. . . . [I]t will also be reduced, even in the
absence of these
features, if the trier of fact understands the
peculiar danger inherent in accomplice evidence and appreciates that
acceptance
of the accomplice and rejection of the accused is, in such
circumstances, only permissible where the merits of the former as a
witness and the demerits of the latter are beyond question.’
[15] This theme was taken further by
Holmes JA in
S v Hlapezula & others
1965 (4) SA 439
(A) at
440D-H where the following appears:
‘
It
is well settled that the testimony of an accomplice requires
particular scrutiny because of the cumulative effect of the following
factors. First, he is a self-confessed criminal. Second, various
considerations may lead him falsely to implicate the accused,
for
example, a desire to shield a culprit or, particularly where he has
not been sentenced, the hope of clemency. Third, by reason
of his
inside knowledge, he has a deceptive facility for convincing
description ─ his only fiction being the substitution
of the
accused for the culprit. Accordingly, even where sec. 257 of the Code
has been satisfied, there has grown up a cautionary
rule of practice
requiring (a) recognition by the trial Court of the foregoing
dangers, and (b) the safeguard of some factor reducing
the risk of a
wrong conviction, such as corroboration implicating the accused in
the commission of the offence, or the absence
of gainsaying evidence
from him, or his mendacity as a witness, or the implication by the
accomplice of someone near and dear to
him; see in particular
R
v Ncanana
,
1948 (
4) SA 399
(AD) at pp. 405-6;
R
v Gumede
,
1949 (3) SA 749
(A.D) at p. 758;
R
v Nqamtweni & another
1959
(1) SA 894
(A.D) at pp 897G-898D. Satisfaction of the cautionary rule
does not necessarily warrant a conviction, for the ultimate
requirement
is proof beyond reasonable doubt, and this depends upon
an appraisal of all the evidence and the degree of the safeguard
aforementioned.‘
[16] In convicting the appellants the
high court based its decision on its finding that a prior agreement
between the appellants
and their cohorts had been proved beyond
reasonable doubt by the State. Moreover, the high court accepted the
evidence of Radzuma
without reservation and said that:
‘
.
. . the witness Radzuma had an opportunity of observing what accused
1’s participation was, that he is the person who hit
the
deceased with a bottle, the person who, while the deceased had fallen
down pressed him down with his leg or his knee and this
witness
happens to have been at a distance of about five or six metres away
from the deceased and accused 1.’
It went on to find that the two
accomplices corroborated each other in material respects. However, a
reading of the record reveals
that Todani and Radzuma contradicted
each other on the critical aspect of whether the first appellant had
participated in the killing
and robbery of the deceased. The State’s
case as to the existence of a prior agreement was entirely
unsatisfactory given
the inherent inconsistencies. In my view,
therefore, the high court erred in finding that a prior agreement had
been proved.
[17] In
S
v Mgedezi & others
1989
(1) SA 687
(A) this court said the following at 705I-706C:
‘
In
the absence of proof of a prior agreement, accused No 6, who was not
shown to have contributed causally to the killing or wounding
of the
occupants of room 12, can be held liable for those events, on the
basis of the decision in
S
v Sefatsa & others
1988
(1) SA 868
(A), only if certain prerequisites are satisfied. In the
first place, he must have been present at the scene where the
violence
was being committed. Secondly, he must have been aware of
the assault on the inmates of room 12. Thirdly, he must have intended
to make common cause with those who were actually perpetrating the
assault. Fourthly, he must have manifested his sharing of a
common
purpose with the perpetrators of the assault by himself performing
some act of association with the conduct of others. Fifthly,
he must
have had the requisite
mens
rea
;
so, in respect of the killing of the deceased, he must have intended
them to be killed, or he must have foreseen the possibility
of their
being killed and performed his own act of association with
recklessness as to whether or not death was to ensue.’
[18] In this matter counsel for the
State readily conceded in this court that the existence of a prior
agreement had not been proved
by the State. Accordingly the
conviction of the first appellant can be sustained only if the five
prerequisites for criminal liability
spelt out in
Mgedezi
are satisfied. On this score the
dictum of the Constitutional Court in
Thebus
& another v S
1
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) (para 45)
is instructive. The Constitutional
Court said the following:
‘
A
collective approach to determining the actual conduct or active
association of an individual accused has many evidentiary pitfalls.
The trial court must seek to determine, in respect of each accused
person, the location, timing, sequence, duration, frequency
and
nature of the conduct alleged to constitute sufficient participation
or active association and its relationship, if any, to
the criminal
result and to all other prerequisites of guilt. Whether or not active
association has been appropriately established
will depend upon the
factual context of each case.’
[19] Thus the fate of the trial with
respect to the first appellant hinged on the cogency or otherwise of
the evidence. Hence it
has been reiterated time and again that the
proper approach in evaluating evidence is to weigh up all the
elements which point
to the guilt of the accused as against those
which are indicative of his innocence, taking cognisance of inherent
strengths and
weaknesses, probabilities and improbabilities and then
decide whether the scales tilt so heavily in favour of the State as
to exclude
any reasonable doubt about the accused’s guilt.
[20] Accordingly, the question arose
as to whether there was evidence of sufficient weight to sustain the
conviction of the first
appellant. To my mind the answer must be no.
This is so for three principal reasons. First, of the two accomplices
only Radzuma
implicated the first appellant. Radzuma was thus a
single witness whose testimony was contradicted on a crucial aspect
by Todani
(see eg
S v Sauls
1981 (3) SA 172
(A) at 180).
Secondly, Radzuma was an accomplice to whom the cautionary rule
applied and thus the question whether or not the cautionary
rule had
been satisfied depended upon an appraisal of all the evidence. The
contradictions and inconsistencies inherent in the
State’s case
were, in my view, such that the high court ought to have entertained
doubt as to the truthfulness of Radzuma’s
testimony. Thirdly,
the testimony of the first appellant should not have been rejected
merely because it was found to be improbable.
It could be rejected
only if it were found to be so improbable that it could not
reasonably possibly be true (see eg
S v Shackell
2001 (4) SA 1
(SCA) para 30).
[21] Whilst we must accept that the
first appellant was present at the scene of the crime it should be
pointed out, however, that
on a conspectus of all the evidence he did
not manifest any conduct that could be said to have constituted
active association with
the killing of the deceased. On the contrary,
his evidence, which cannot be rejected as false, and which was
supported by Todani,
establishes that he was merely a passive
bystander. Quite clearly, therefore, his conviction is unsustainable.
[22] It was therefore for all the
foregoing reasons that the appeal of the first appellant against his
conviction was allowed and
his conviction and the sentences were set
aside.
[23] I now turn to the appeal of the
second appellant against his sentence. As already mentioned in para 5
above, he was sentenced
to twenty years’ imprisonment for
murder and eighteen years’ imprisonment for robbery with
aggravating circumstances.
Counsel for the second appellant argued in
his written heads of argument that the sentences imposed on the
second appellant were
disturbingly inappropriate and that the high
court misdirected itself in its approach to sentence.
[24] At the outset it must be
emphasised 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 (see eg
S
v Giannoulis
1975 (4) SA
867
(A) at 868G-H;
S v
Kgosimore
1999 (2) SACR 238
(SCA) para 10).
[25] In
S
v Malgas
2
2001 (2) SA 1222
(SCA) 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, the 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”.’
[26] During his oral address counsel
for the second appellant was constrained to concede that the
sentences imposed by the high
court, when viewed individually point
to no discernible material misdirection. Nor could it be seriously
contended that these sentences
reveal a disparity of such a degree so
as to render them ‘shocking’, ‘startling’ or
‘disturbingly
inappropriate’.
[27] To my mind counsel acted wisely
in making this concession. It is plain from the judgments of our
courts that crimes involving
violence ─ as murder and robbery
do ─ 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 authorise 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
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. . . .’
[28] It goes without saying that by
their very nature murder and robbery are extremely serious crimes and
the frequency with which
they are committed is a matter of grave
concern. Mr Thomu, counsel for the second appellant, nonetheless
persisted in his
argument that the high court should have mitigated
the cumulative effect of the two sentences, given the circumstances
in which
the crimes for which he was convicted were committed, by
directing a concurrence between the sentences of imprisonment imposed
in respect of the murder and robbery convictions.
[29] On his part, counsel for the
State readily conceded that the cumulative effect of the sentences is
such as to justify interference
on appeal. In my view, a cumulative
sentence of 38 years’ imprisonment for someone who was 19 years
old when the crimes were
committed, a factor acknowledged by the high
court, is undoubtedly a heavy sentence. It suggests that the high
court did not sufficiently
consider the cumulative effect of the
sentences on the second appellant given that the elements of the
murder count were inextricably
bound up with the elements of the
robbery count. Accordingly the appeal of the second appellant against
sentence must succeed albeit
only to the limited extent that his
sentences will be ordered to run concurrently.
[30] Before concluding there are two
other aspects that require mention. First, with respect to the first
appellant’s application
for leave to appeal the high court, in
the course of its judgment, said the following:
‘
.
. . considering the fact that I have already decided to grant the
applicants leave to appeal in respect of sentences I find it
more
convenient that I should also consider granting the first applicant
leave to appeal on conviction, regard being had to the
fact that in
any event the appeal court is going to read the whole record and
decide this case on appeal on the totality of the
evidence.
No
inconvenience will be caused whatsoever, and I find that it will be
in the interest of justice that the appeal court be given
the
opportunity also to hear the first applicant’s argument in
respect of his conviction.’
[31] To my mind the implication of
this statement is that the high court did not consider the proper
test for leave to appeal, which
is whether there is a reasonable
prospect that ‘another court might come to a different
conclusion 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.
[32] Moreover, the high court appears
to have been entirely oblivious to the existence of rule 10A(a)(ix)
of the rules of this court
3
which requires of counsel to indicate
which portions of the record are in their opinion necessary for the
determination of the appeal.
It is implicit in this rule that in the
context of a criminal appeal it behoves the high court not to grant
leave to appeal against
conviction ─ simply because it is
disposed to grant leave to appeal against sentence ─ where the
envisaged appeal against
conviction has no reasonable prospect of
success, and is manifestly doomed to fail.
[33] Secondly, as already pointed out
in para 2 above, the indictment explicitly stated that the State
would, upon conviction of
the accused, rely on the provisions of ss
51(1)(a) and 51(2) when it came to sentencing. Accordingly, as Marais
JA made plain in
Malgas
(para 8) ‘it was no longer
business as usual. First, a court was not to be given a clean slate
on which to inscribe whatever
sentence it thought fit. Instead it was
required to approach that question conscious of the fact that the
legislature has ordained
life imprisonment or the particular
prescribed sentence of imprisonment as the sentence which should
ordinarily
be
imposed for the commission of the listed crimes in the specified
circumstances. . .’.
[34] It is beyond question in this
case that the high court determined sentence without any regard for
the provisions of ss 51(1)(a)
and 51(2) of the minimum sentences
legislation despite being statutorily obliged to do so. But the
State, despite its declared
intention foreshadowed in the indictment
that it would invoke the provisions of the minimum sentences
legislation upon conviction,
did not cross-appeal against sentence on
the grounds that the high court should have heeded the statutory
prescripts bearing on
sentence evidently because its attitude,
manifested during the hearing of the appeal, was that the second
appellant had, in any
event, got his just desserts. Consequently it
would be wrong for this court to now revisit that aspect. Nonetheless
the glaring
oversight of the high court in this regard is deprecated.
Order
[35] In the result the following order
is made:
1 The appeal of the second appellant
is allowed to the limited extent that the sentence imposed on count 2
(robbery) is ordered
to run concurrently with the sentence imposed on
count 1 (murder). The second appellant will thus serve an effective
term of twenty
years’ imprisonment.
2 The effective term of twenty years’
imprisonment shall run from 10 November 2004.
__________________
X M PETSE
JUDGE OF APPEAL
Appearances:
First appellant: S O Ravele
Instructed by
S O Ravele Attorneys, Thohoyandou
Naudes, Bloemfontein
Second appellant: A L Thomu
Instructed by:
Justice Centre, Thohoyandou
Justice Centre, Bloemfontein
Respondent: A I S Poodhun
Instructed by:
Director of Public Prosecutions,
Thohoyandou
Director of Public Prosecutions,
Bloemfontein
1
Also
reported in
[2003] ZACC 12
;
2003 (6) SA 505
;
2003 (10) BCLR 1100.
2
Also
reported in
[2001] 3 All SA 220
;
2001 (1) SACR 469.
3
The
object of this rule was explained in, inter alia,
Caterham
Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd
[1998] ZASCA 44
;
1998
(3) SA 938
(A) at 954H.