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[2012] ZASCA 201
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S v Guca and Another (420/12) [2012] ZASCA 201 (30 November 2012)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case no
:
420/12
NOT REPORTABLE
In
the matter between:
VELILE
JOHNSON GUCA
...................................................................
FIRST
APPELLANT
TERENCE
YISAKE
.........................................................................
SECOND
APPELLANT
and
THE
STATE
..................................................................................................
RESPONDENT
Neutral citation:
Velile
Guca v The State
(420/12)
[2012] ZASCA 201
(30 November 2012)
Coram: Mthiyane DP, Leach and
Tshiqi JJA
Heard: 9 November 2012
Delivered: 30 November 2012
Summary:
Criminal Law – effective sentence shockingly inappropriate.
______________________________________________________________________
ORDER
______________________________________________________________________
On appeal from:
North Gauteng
High Court, Pretoria (Patel J and Kruger AJ sitting as court of
appeal):
The appeal is upheld.
Paragraph two of the order of the
high court is set aside and replaced with the following:
‘
The appeal
against sentence is upheld. The sentences imposed on both appellants
are set aside and replaced with the following:
(a) Count one: 15 years.
(b) Count two: 15 years.
(c) Counts three and four are taken
together for the purposes of sentence and the appellants are
sentenced to three years.
(d) Count five: 13 years.
(e) Count six: 13 years.
(f) Count seven: 10 years.
(g) Counts eight and nine are taken
together for the purposes of sentence and the appellants are
sentenced to three years.
(h) The various sentences are to run
concurrently as follows:
(i) The sentences on counts 3, 4 and 5
are to run concurrently with that imposed on count 1.
(ii) The sentences on counts 6, 7, 8
and 9 are to run concurrently with that imposed on count 2.
The effective sentence to be served
is therefore 30 years imprisonment.
(i) The above sentences are antedated
under
s 282
of the
Criminal Procedure Act 51 of 1977
to 7 September
2001 when sentence was imposed in the Regional Court’.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
TSHIQI JA (MTHIYANE DP AND LEACH JA
CONCURRING):
This is an appeal against sentence
only. Both appellants were charged, together with a third accused,
in the Regional Court, Benoni
on four counts of robbery with
aggravating circumstances, one count of attempted murder, two counts
of contravening
s 2
read with sections 39(2) and 40 of the Arms
and Ammunition Act 75 of 1969 (unlawful possession of an unlicensed
firearm) and
two counts of contravening s 36 read with s 39(2)
of the same Act (unlawful possession of ammunition). Both appellants
were convicted on all counts whilst their co accused was
convicted on four counts and acquitted on the remaining five counts.
The appellants were each sentenced to
an effective period of 55 years’ imprisonment whilst their
co-accused was sentenced
to an effective period of 25 years’
imprisonment. They lodged appeals to the North Gauteng High Court,
Pretoria (per Patel J
and Kruger AJ), against both their
convictions and sentences. Their appeals against the convictions
were dismissed but the appeals
against the sentences were upheld.
The high court in substituting the sentences imposed by the trial
court committed an error
in the computation of the sentences. The
effect of the error is that the sentences imposed by that court
became unclear.
The first appellant lodged a further
application for leave to appeal to this court in the high court.
When the matter came before
Shongwe DJP and Makhafola J, they raised
the error committed by the court a quo and as a result leave was
granted on 14 November
2008 in respect of the first appellant
‘only to the limited extent that there was an error in the
computation of the effective
sentence imposed’ by the high
court. On 18 September 2012 leave against sentence was also granted
to the second appellant.
Three issues arise before this court
in respect of both appellants. First, the error in the computation
of the sentences. Second,
the failure by the magistrate to apprise
the appellants that the
Criminal Law Amendment Act 105 of 1997
was applicable in respect of some of the counts and the consequences
flowing from that omission. Third, the effective sentences
imposed
on the appellants.
Counsel for the State initially
sought to argue that the error in the computation of the sentences
was no longer relevant as it
had already been rectified through a
document termed ‘Variation of order in terms of
Rule 42(1)
(b)
,
dated 31 August 2008, by Kruger AJ, one of the judges who had
heard the appeal. He was, however, constrained to concede
that it
was not so because the judge concerned was, on that date already
functus officcio
,
Patel J had since passed away and the reliance on uniform
rule
42(1)
(b)
1
anc" HREF="#sdfootnote1sym">
1
was misplaced. What Kruger AJ did is
a nullity and has no effect on the sentence. It is in the
circumstances open to this court
to determine the sentences afresh.
Before doing so I need to deal with the failure by the magistrate to
warn the appellants that
the minimum sentencing legislation was
applicable. The high court did not deal with that issue at all.
The State conceded before this court
that no reliance should have been placed on the
Criminal Law
Amendment Act by
the magistrate. The charge sheet did not refer to
it and the appellants had not been warned by the court that they
were facing
minimum sentences upon conviction. In the light of the
State’s concession, I intend to proceed on the basis that the
magistrate’s
reliance on the
Criminal Law Amendment Act
amounted
to a misdirection. (See further
S v Legoa
2003 (1)
SACR 13
(SCA);
S v Makatu
2006 (2) SACR 582 (SCA)
at paras 6 - 7
; Mapule v S
[2012] ZASCA 80)
.
The magistrate in her judgment took
into account all the trite considerations before she imposed
sentence and also gave a comprehensive
analyses of such
considerations. The individual sentences she imposed were
appropriate but their accumulative effect is too harsh
and
shockingly inappropriate. The magistrate overemphasised the
retributive aspects of punishment and failed to strike an
appropriate
balance. That misdirection and the error in the
computation of sentence by the high court, provide justification for
this court
to interfere. This can be done by the appropriate
alteration of para two of the order of the high court, which dealt
with the
sentence.
I make the following order:
The appeal is upheld.
Paragraph two of the order of the
high court is set aside and replaced with the following:
‘
The appeal
against sentence is upheld. The sentences imposed on both appellants
are set aside and replaced with the following:
(a) Count one: 15 years.
(b) Count two: 15 years.
(c) Counts three and four are taken
together for the purposes of sentence and the appellants are
sentenced to three years.
(d) Count five: 13 years.
(e) Count six: 13 years.
(f) Count seven: 10 years.
(g) Counts eight and nine are taken
together for the purposes of sentence and the appellants are
sentenced to three years.
(h) The various sentences are to run
concurrently as follows:
(i) The sentences on counts 3, 4 and 5
are to run concurrently with that imposed on count 1.
(ii) The sentences on counts 6, 7, 8
and 9 are to run concurrently with that imposed on count 2.
(iii) The effective
sentence to be served is therefore 30 years imprisonment.
(i) The above
sentences are antedated under
s282
of the
Criminal Procedure Act 51
of 1977
to 7 September 2001 when sentence was imposed in the Regional
Court.
_______________________
Z L L TSHIQI
JUDGE OF APPEAL
APPEARANCES:
For First Appellant: JM Mojuto
Instructed by:
Justice Centre, Pretoria
Justice Centre, Bloemfontein
For Second Appellant: LA van Wyk
Instructed by:
Justice Centre, Pretoria
Justice Centre, Bloemfontein
For Respondents: M Mashuga
Instructed by:
Director of Public Prosecutions,
Pretoria
Director of Public Prosecutions,
Bloemfontein
1
Uniform
rule 42(1)
(b)
deals with ‘an order or judgment in which
there is an ambiguity, or a patent error or omission, but only to
the extent
of such ambiguity, error or omission’ and not with
variation orders.