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[2012] ZASCA 207
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S v Dlamini and Others (553/2012) [2012] ZASCA 207 (30 November 2012)
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE NO: 553/2012
Not Reportable
In the matter between:
JOSHUA MALEFANE DLAMINI
.........................................................
FIRST
APPELLANT
JOSEPH KHOSA
............................................................................
SECOND
APPELLANT
and
THE STATE
..................................................................................................
RESPONDENT
Neutral citation:
Dlamini & another v The
State
(553/12) [2012] 207 (November 2012).
Coram:
Ponnan, Pillay JJA et
Plasket AJA
Heard:
23 November 2012
Delivered:
30 November
2012
Summary: Sentence – Appellants convicted of
robbery with aggravating circumstances, unlawful possession of
firearms and ammunition
and escaping from lawful custody –
effective sentence of 36 years’ imprisonment inappropriate
–sentence reduced
to 20 years’ imprisonment.
ORDER
On appeal from:
North Gauteng High Court,
Pretoria (sitting as a court of appeal):
a. The appeal against sentence is upheld.
b. The order of the court below in respect of sentence
is set aside and replaced with the following:
‘
1. Each accused is sentenced to terms of
imprisonment as follows:
(a) On count 1 - 15 years;
(b) On count 4 - 2 years;
(c) On count 5 - 2 years;
(d) On count 6 - 3 years;
(e) On count 7 - 3 years;
(f) On count 8 - 2 years;
(g) On count 9 - 2 years;
(h) On count 10 - 2 years;
2. It is further ordered that in respect of each of the
accused:
2.1. The sentences imposed in respect of counts 4 and 5
are to run concurrently with that imposed on count 1;
2.2. Two years of the sentence imposed on count 7 is to
run concurrently with that imposed on count 6;
2.3. The sentence imposed in respect of count 8 is to
run concurrently with that imposed on count 6;
2.4. The sentence imposed on count 9 is to run
concurrently with that imposed on count 7;
2.5. One year of the sentence imposed on count 10 is to
run concurrently with that imposed on count 1.
2.6. Each appellant is thus sentenced to an effective
term of imprisonment of 20 years.’
The sentences are antedated to 7 March 2000.’
JUDGMENT
PILLAY JA (PONNAN JA ET PLASKET AJA CONCURRING)
[1] This appeal, with the leave of the North Gauteng
High Court (Pretoria), is against sentence. The appellants, Joshua
Malefane
Dlamini and Joseph Khosa, were convicted and sentenced to
terms of imprisonment by the regional court as follows:
Count 1 – Robbery with aggravating circumstances
15 years
Count 4 – Unlawful possession of a
9mm Walther
Pistol in contravention of s
2 read with
ss 1, 39(1)
(h)
and 39(2) of the
Arms and
Ammunitions Act 75 of 1969
......................................................................................
3
years
Count 5 – Unlawful possession of a
9mm Browning
Pistol
in contravention of s 2 read with ss 1,
39(1)
(h)
and 39(2) of the
Arms and
Ammunitions Act 75 of 1969
.....................................................................................
3
years
Count 6 – Unlawful possession of a .357 Revolver
In contravention of s 2 read
with ss 1,
39(1)
(h)
and 39(2) of the Arms
and
Ammunitions Act 75 of 1969
.....................................................................................
3
years
Count
7 – Unlawful possession of a
9mm Star
Pistol
in contravention of s 2 read with
ss 1, 39(1)
(h)
and 39(2) of the Arms and
Ammunitions
Act 75 of 1969
.....................................................................................
3
years
Count
8 – Unlawful possession of ammunition to wit 3 x .357
rounds
in contravention of s 36 read with ss 1, 12
39
and 40 of the Arms and Ammunitions Act 75
of 1969
...........................................................................................................
2
years
Count 9 – Unlawful possession of ammunition to wit
14 x 9mm
rounds in contravention of s 36
read with ss 1, 12
39 and 40 of the Arms and
Ammunitions Act 75
of 1969 2 years
Count 10 – Escaping from custody in contravention
of
s 48(1)(a) read with ss 1 and
52 of the
Correctional Services Act 8 of 1959
.........................................................................
5
years
The effect thereof was that the appellants were each
sentenced to 36 years’ imprisonment.
[2] The events giving rise to the charges upon which
both appellants were convicted and sentenced may be summarized thus:
On 6 February
1998 at about 16h00, Mrs Van der Watt was alone at her
home on Hartbeesfontein farm, in the district of Vereeniging,
Gauteng, when
she heard a noise. Upon turning, she saw three unknown
men, one of whom, who later came to be referred to as ‘Thomas’
by his cohorts, was brandishing a firearm. She was grabbed and
forcibly led from the kitchen into the main bedroom. Her hands and
feet were bound. The intruders demanded the key to the safe. When she
initially responded that her husband had taken it with him,
she was
hit on the back of her head with a firearm, which caused an open
wound from which she bled profusely. She then pointed
the key out to
them. They opened the safe, from which they removed two firearms and
some old coins.
[3] Mrs Van der Watt was then returned to the bedroom
where Thomas kept a watch over her while the other two started to
ransack
the rest of the house. Thomas then looked through some of the
drawers in the bedroom and found another of her husband’s
firearms
as well as a knife. He took both. All three then demanded
the keys to her motor vehicle which she felt constrained to give to
them.
They did not leave thereafter but instead lay in wait for her
husband. When he finally returned he was confronted by the two
appellants,
both of whom were brandishing firearms. He was also bound
and dragged into another bedroom where Thomas then kept watch over
him.
He was later locked in the bathroom. Thereafter, Ms Nhlapo, a
lady who assisted the Van der Watts on the farm, arrived. She too
was
accosted and bound. She was taken to the main bedroom and made to sit
on the floor next to the bed on which Mrs Van der Watt
was seated.
One of the attackers then poured two bottles of alcohol down her
throat despite her attempts to avoid it. Ms Nhlapo
was a teetotaler.
[4] The intruders had difficulty in getting Mrs Van der
Watt’s motor vehicle started. Mr Van der Watt suggested that
they
swop vehicles and take his Fiat (the Fiat) instead. They did so
and made off with loot, valued at approximately R60 000-00,
which included groceries, watches, a television set, and two firearms
(they had left behind a shotgun which was in the safe). By
then Mrs
Van der Watt had managed to free herself and helped to free Ms
Nhlapo. Mr Van der Watt had in the meanwhile broken through
the door
of the bathroom in which he had been locked. Mrs Van der Watt then
called for help from her neighbours over the ‘Marnet
Radio’,
a short wave radio system. Once freed, Ms Nhlapo ran out of the house
screaming. She attracted the attention of Mr
Sekhoto, a general
assistant on the farm, who accompanied her back to the farm house.
[5] Mr Van der Watt then set off, in the company of Mr
Sekhoto, after the robbers in another of his vehicles, a Land Rover.
He discovered
from the tyre marks left on the corrugated road, that
the Fiat was being driven in the direction of Vereeniging. On the
way, he
maintained radio contact with his neighbour, Mr Malan who had
also set out in his own vehicle in pursuit of the robbers. On
Villiers
Road, Mr Malan observed the Fiat at a robot near Fourways
Motors. He managed to stop it when it had turned onto Blackwood
Street
and parked behind it. He armed himself with a rifle, got out
of his vehicle, and ordered the occupants to sit still. There were
three people in the Fiat – the driver, a front passenger and
one sitting in the back seat behind the driver.
[6] Mr Malan’s son, Jacobus, arrived soon
thereafter as did another farmer, Mr Groenewald. Both parked behind
Mr Malan’s
vehicle. Shortly thereafter, Mr Van der Watt arrived
with Mr Sekhoto and parked about ten meters in front of the Fiat. The
robbers
were still in the vehicle. Mr Van der Watt got out of the
Land Rover armed with a shotgun, and proceeded to walk towards the
Fiat.
He noticed that the passenger next to the driver had raised a
firearm and was pointing it in his direction. He shot at this person.
The shot pierced the windscreen of the Fiat and hit the front seat
passenger in the face. The other two occupants were then ordered
to
get out of the Fiat. They did so. Members of the South African Police
Service arrived thereafter and arrested them. The two
who had
alighted from the Fiat were the appellants, while the third person –
Thomas - died at the scene soon after being
shot.
[7] The police secured the Fiat and the body of Thomas
was removed. The police found four hand guns in the Fiat. The other
items
taken during the robbery were identified by Mr Van der Watt as
his property. Photographs of certain items found in the Fiat, in
particular the firearms, were taken by the police before all of Mr
Van der Watt’s property was returned to him that same
night.
The appellants were taken into custody, formally arrested and
charged. They remained in custody from that time onwards.
Before a
scheduled appearance in the magistrates’ court on 23 March 1999
at Vereeniging, both bribed a policeman, in whose
physical custody
they were, in order to facilitate an escape. They were at large for
about two months before they were re-arrested.
They were finally
arraigned in the regional court sitting in Vereeniging. Both were
convicted and sentenced as set out above.
[8] By the time the magistrate considered sentence, on 7
March 2000, the appellants had dismissed their legal representative
and
opted to deal with the rest of the proceedings unrepresented.
First appellant was 32 years old at the time of the offence, was a
first offender and asked the magistrate to take into consideration
that he was married with three minor children aged three, seven
and
11 years respectively and that his household had been without any
income since his incarceration on 6 February 1998. Second
appellant
was 36 years old at the time of the offence and was also a first
offender. He asked the magistrate to take the following
into
consideration: that he was married and the father of two minor
children aged seven and 11 years old respectively; that his
wife was
unemployed; and, at the time of the commission of the offences, he
was a casual worker. In addition both of the appellants,
save for the
period that they were at large following their escape, spent almost
three years in custody until the finalisation
of their trial.
[9] In assessing sentence, the magistrate considered, as
she had to do, the triad of the seriousness and nature of the
offences,
the interests of society and the interests of the
appellants. She concluded that the frequency of the commission of
such crimes
together with the seriousness of the nature of the
offences far outweighed the interests of the appellants. She found
that in these
circumstances, there was a need to reflect public
abhorrence of such crimes and that the emphasis should be on
deterrence. She
based this on the need to deter, not only the accused
but others with similar intentions from committing such crimes in the
future.
[10] Both appellants appealed against their convictions
and sentences to the high court. Their appeals were dismissed and
their
convictions and sentences were confirmed. The high court
considered the merits very briefly and in its judgment it concluded
that
the magistrate was correct in relying on the evidence of the
state witnesses and rejecting the evidence of the appellants as
false.
The high court consequently confirmed all the convictions.
With regard to the sentences, the high court stated as follows:
‘
Wat die oplegging van
vonnis aanbetref, is dit so dat die Landdros nie gelas het dat die
gevangenisstraf wat opgelê is vir
die onwettige besit van ‘n
vuurwapen, saam loop met die gevangenisstraf wat opgelê word
vir die onwettige besit van
ammunisie nie. As ek as ‘n Hof van
die eerste instansie vonnis moes oplê, sou ek dit dalk anders
gelas het, maar ek
meen nie daar is voldoende gronde om aan te dui
dat die Landdros hom in die opsig, in enige opsig wanvoorgelig het
nie. Hy het
inderdaad die kumulatiewe effek van die vonnisse in ag
geneem en dienooreenkomstig vonnis opgelê. Gevolglik meen ek
ook is
daar wat die oplegging van vonnis aanbetref, geen gronde
waarop die Hof van Appél kan inmeng met die vonnis wat die
Landdros
opgelê het nie.’
The appeal against the sentences was accordingly
dismissed as well. But leave was thereafter granted by the high court
(differently
constituted to that which had dismissed the appellants’
appeal) to appeal to this court against sentence only.
[11] The appellants submitted that an effective term of
36 years’ imprisonment induces a sense of shock. They argued
that
the magistrate in imposing the maximum sentences permitted on
each count, misdirected herself in not tempering the cumulative
effect
of the sentences especially in respect of those offences that
were closely related in respect of time and place. Accordingly, so
the argument goes, the harshness of the effective sentence ought to
have been ameliorated by ordering some of the sentences to
run
concurrently.
[12] In
S v Mhlakaza &
another,
1
Harms JA dealt with a sentence of imprisonment which
cumulatively exceeded 25 years. He pointed out
2
that ‘there is no reason to believe that the
deterrent effect of a prison sentence is
always
proportionate to its length’. He went on to state
that a lengthy term of imprisonment is the effective removal of a
serious
offender from society. And while sentences would vary form
case to case, there is a threshold beyond which imprisonment would
serve
none of the purposes of punishment but would simply serve to
appease public opinion. According to Harms JA ‘. . . sentences
of imprisonment ought to be realistic and should not be open to the
interpretation that they have been designed for public consumption.
.
.’.
3
[13] Our courts have generally been slow to embrace
inordinately long terms of imprisonment. In
S
v Skenjana
4
,
Nicholas JA put it thus:
‘
Nor is it in the public
interest that potentially valuable human material should be seriously
damaged by long incarceration. As
I observed in
S
v Khumalo and Another
[1984] ZASCA 30
;
1984
(3) SA 327
(A) at 331, it is the experience of prison administrators
that unduly prolonged imprisonment brings about the complete mental
and
physical deterioration of the prisoner. Wrongdoers “must
not be visited with punishments to the point of being broken.”
(per Holmes JA in
S v
Sparks and Another
1972
(3) SA 396
(A) at 410G).’
[14] In my view, given the circumstances of this case,
the cumulative effect of the sentence imposed is so inappropriate
that this
court is permitted to intervene and substitute its
discretion for that of the trial court. This clearly was one of the
worst kinds
of house robberies. It must have been a particularly
brutalizing experience for both Mrs Van der Watt, who unbeknown to
the appellants,
was sexually assaulted by Thomas whilst he kept guard
over her in her bedroom, and Ms Nhlapo, who was forced to drink
copious amounts
of alcohol. It was thus conceded by counsel on appeal
that the appellants were deserving of a sentence of 15 years’
imprisonment
for the robbery (count 1), the maximum sentence that the
magistrate could have imposed.
[15] In so far as the sentences in respect of the
firearms are concerned: the magistrate appeared to lose sight of the
fact that
of the four firearms, in respect of which the appellants
were convicted, two, being the .357 revolver (the subject of count 6)
and the 9mm Starr pistol (the subject of count 7) were taken to the
scene by the group to perpetrate the robbery, and the other
two,
being the Walther 9mm pistol (the subject of count 4) and the 9mm
Browning pistol (the subject of count 5) constituted part
of the loot
taken during the robbery. That justified a differentiation in the
determination of an appropriate sentence on those
counts. It needs
also to be added, that in so far as the former are concerned, that
their use and possession was already taken
into account in concluding
that aggravating circumstances were present in the robbery conviction
(count 1). In an analogous situation
in
R v
Cain,
5
the following was stated –
‘
. . . it would, no doubt,
be appropriate, when assessing the sentence to be imposed for the
separate charge of shooting, to pay
regard to the fact that such
shooting had already operated to make the sentence on the robbery
charge more severe; but this would
not affect the “presence”
of the shooting as an aggravating circumstance in the robbery’.
[16] As I have already stated the two pistols –
the Walther and the Browning - had been taken from the Van der
Watts’s
safe as part of the loot during the robbery. Possession
of those firearms was not deserving of the maximum sentence
prescribed
by the Arms and Ammunitions Act. I would thus set aside
the 3 years’ imprisonment imposed on each of those counts and
substitute
in its stead a sentence of 2 years’ imprisonment.
Moreover, as those offences were committed as part of the same
criminal
transaction it would be fair to order those sentences to run
concurrently with that imposed on the robbery in count 1. The other
two firearms – the .357 revolver and the 9mm Starr pistol -
were taken to the scene of the robbery by the appellants. The
robbery
was pre-planned and the firearms were obviously at hand to intimidate
the occupants or, worse still, overcome any resistance.
Those
offences were thus deserving of the maximum penalty. I would thus not
interfere with the 30 years’ imprisonment imposed
on each of
those counts. But I would order two years of the 3 years’
imprisonment imposed on count 7 to run concurrently
with the sentence
on count 6. In respect of the unlawful possession of the ammunition,
I would substitute the sentence of one year
for that of the two years
imposed in respect of counts 8 and 9. The ammunition forming the
subject matter of count 8 was obviously
for the revolver in count 6
`and the ammunition in count 9 was for the pistol in count 7. I would
thus order the sentence of 1
year imprisonment on each of counts 8
and 9 to run concurrently with those on counts 7 and 8 respectively.
[17] There remains the escaping from custody: The
magistrate was correct in taking into account as an aggravating
feature that a
law enforcement officer was bribed. That
notwithstanding, this is by no means the worst kind of escape that
one is likely to encounter,
particularly because no force or violence
was employed by the appellants to secure their freedom. It was thus
not deserving of
the maximum sentence prescribed by the legislature.
I would thus set aside the sentence of 5 years’ imprisonment
imposed
on count 10 and substitute in its place a sentence of 2
years’ imprisonment. I would furthermore order one year thereof
to
run concurrently with the 15 years imposed on count 1, the
robbery.
[18] In the result I make the following order:
a. The appeal against sentence is upheld.
b. The order of the court below in respect of sentence
is set aside and replaced with the following:
‘
1. Each accused is sentenced to terms of
imprisonment as follows:
(a) On count 1 - 15 years;
(b) On count 4 - 2 years;
(c) On count 5 - 2 years;
(d) On count 6 - 3 years;
(e) On count 7 - 3 years;
(f) On count 8 - 2 years;
(g) On count 9 - 2 years;
(h) On count 10 - 2 years;
2 It is further ordered that in respect of each of the
accused:
2.1 The sentences imposed in respect of counts 4 and 5
are to run concurrently with that imposed on count 1;
2.2 Two years of the sentence imposed on count 7 is to
run concurrently with that imposed on count 6;
2.3 The sentence imposed in respect of count 8 is to run
concurrently with that imposed on count 6;
2.4 The sentence imposed on count 9 is to run
concurrently with that imposed on count 7;
2.5 One year of the sentence imposed on count 10 is to
run concurrently with that imposed on count 1.
2.6 Each appellant is thus sentenced to an effective
term of imprisonment of 20 years.’
The sentences are antedated to 7 March 2000.’
R. PILLAY
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANTS: MR H. L. ALBERTS
Instructed by:
Legal Aid South Africa, Pretoria;
Legal Aid South Africa, Bloemfontein
FOR RESPONDENT: ADV J. P. VAN DER WESTHUIZEN
Instructed by:
The National Director of Public Prosecutions, Pretoria
The National Director of Public Prosecutions,
Bloemfontein
1
S
v Mhlakaza & another
1997 (1) SACR 515
(SCA)
2
At
519 g
3
At
524 a
4
S
v Skenjana
1985 (3) SA 51
(A) at 55C-D
5
R
v Cain
1959 (3) SA 376
(A)
at 383D
and
followed in
S v Moloto
1982
(1) SA 844
A.