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[2023] ZAKZPHC 124
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Ncube and Others v S (AR404/2021) [2023] ZAKZPHC 124 (20 October 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO: AR404/2021
In
the matter between:-
SIBONGISENI
EMMANUEL NCUBE
FIRST
APPELLANT
BHEKITHEMBA
SONNYBOY SHANDU
SECOND APPELLANT
INNOCENT
THEMBA NCANANA
THIRD
APPELLANT
versus
THE
STATE
RESPONDENT
ORDER
On appeal from
:
KwaZulu-Natal Division of the High Court, Durban (Nkosi AJ
sitting as court for first instance):
[1]
The appeal against the sentences imposed on the second and third
appellants on 23
September 2010 is dismissed.
[2]
The sentences of the second and third appellants are confirmed.
JUDGMENT
R.
SINGH, AJ:
Introduction
[1]
The three appellants were arraigned in the
High Court of the KwaZulu-Natal Division of the High Court,
Durban on the following
charges:-
(a)
All three Appellants for:-
(i)
Robbery with aggravating circumstances as defined in section I(b) of
the Criminal
Procedure Act 51 of 1977 (“CPA”), read with
section 51 and Schedule 2 of the Criminal Law Amendment Act 105 of
1997
(“the CLAA”) – Count 1;
(ii)
Murder read with section 51 and Schedule 2 of the CLAA – Count
2;
(b)
The first appellant for Counts 3 and 4:-
(i)
Contravening section 3 read with sectons1, 103, 117, 120(1)(a), 121
and Schedule
4 of the
Firearms Control Act 60 of 2000
–
unlawful possession of a firearm;
(ii)
Contravening
section 90
read with
sections 1
,
103
,
117
,
120
(1)(a),
121
and Schedule 4 of the Firearms Control Act 60 of 2000 (FCA)–
unlawful possession of ammunition.
(c)
The second appellant for Counts 5 and 6:-
(i)
Contravening section 3 read with sections1, 103, 117, 120(1)(a), 121
and Schedule
4 of the FCA – unlawful possession of a firearm;
(ii)
Contravening section 90 read with sections 1, 103, 117, 120(1)(a),
121 and Schedule
4 of the FCA – unlawful possession of
ammunition;
(d)
The third appellant for Counts 7 and 8:-
(i)
Contravening section 3 read with sections 1, 103, 117, 120(1)(a), 121
and Schedule
4 of the FCA – unlawful possession of a firearm;
(ii)
Contravening section 90 read with sections 1, 103, 117, 120(1)(a),
121 and Schedule
4 of FCA – unlawful possession of ammunition;
[2]
The charges relating to the contravention
of the FCA were also read with section 51 and Schedule 2 of the CLAA
in that the weapons
used in the commission of the offences were
semi-automatic firearms.
[3]
All three appellants pleaded not guilty and
were convicted as charged on 22 September 2010.
[4]
The first and second appellants were
sentenced as follows:-
(a)
Count 1 - 15 years imprisonment;
(b)
Count 2 - imprisonment for life;
(c)
Counts 3 and 4 and 5 and 6, respectively with both counts in respect
of each of the two appellants taken
together for purposes of sentence
- 15 years imprisonment;
[5]
The third appellant was sentenced as
follows:-
(a)
Count 1 - 15 years imprisonment;
(b)
Count 2 - 20 years imprisonment;
(c)
In respect of counts 7 and 8 he was sentenced to fifteen years
imprisonment each with a further order
that 10 years imprisonment of
the sentences in respect of counts 1 and 7 were to run concurrently
with the sentence in count 2.
This was an effective 30 years
imprisonment.
[6]
The appellants aggrieved by the outcome,
applied for leave to appeal against their convictions and sentences.
The court a quo granted
them leave to appeal against the sentences
but denied them leave to appeal against the convictions. Consequently
the matter came
before us in respect of their appeals against their
sentences. At the outset of the hearing, Mr Mbatha who appeared for
he appellants
advised us that the first appellant has passed away in
custody. The appeal in respect of the first appellant was therefore
withdrawn.
[7]
A summary of the relevant evidence adduced
in the court a quo was as follows:
(a)
At around midnight on 25/26 June 2009, the three appellants with
their former co-accused attacked and
robbed the deceased, Mr Perican
Mabhoni Zulu (“Mr Zulu”) who was staying with his
girlfriend, Ms Nellie Mhlongo (“Ms
Mhlongo”)by entering
their dwelling. During the robbery, Mr Zulu attempted to escape from
the appellants and as he fled the
dwelling, was shot several times by
the first and second appellants. He died a short distance away from
his dwelling.
(b)
The appellants were arrested on 9 July 2009 at the KwaMashu Hostel
for the crimes after the second and
third appellants were pointed out
by the complainant, Ms Mhlongo.
[8]
The evidence of Ms Mhlongo was that she and
Mr Zulu were robbed of a kettle, a two plate stove, body lotions and
R20-00 in cash.
Submissions
in mitigation of sentence before the court a quo
[9]
The second appellant’s legal
representative in the court a quo made the following submissions on
his behalf:-
(a)
The second appellant was 26 years old and collecting a disability
grant due to a very serious injury
he sustained with a firearm, which
rendered him partially disabled in his arm;
(b)
He was unable to complete school due to his poor social economic
background;
(c)
He at some stage prior to the proceedings intended to plead guilty
but after going to Westville Prison,
he was “schooled” to
plead not guilty and told that he would be “silly” to
plead guilty. This was indicative
of remorse on his part;
(d)
He was 25 years old at the time of the offence being committed and
the offence was not planned or premeditated.
[10]
The third appellant’s legal
representatives made the following submissions in the court a quo:-
(a)
The third appellant was 24 years of age at the time of the commission
of the crime;
(b)
He was unemployed and the crime was not premediated or pre-planned.
Submissions
on behalf of the appellants
[11]
The appellants’ counsel,
Mr
Mbatha
submitted that the court a quo
misdirected itself in attaching insufficient weight to the
traditional mitigating factors, in particular,
that the appellants
were still young at the time of sentencing being between the ages of
26 and 29. The second appellant was also
a first offender. Although
the third appellant had a previous conviction, he ought to have been
treated as a first offender for
the purpose of sentencing taking into
account the nature of his previous conviction.
[12]
It was submitted further in the heads of
argument that the appellants are suitable candidates for
rehabilitation and that the court
a quo over-emphasized the failure
of the appellants to show remorse and under-emphasized the
appellants’ personal circumstances.
The overall submission was
that the court a quo failed to exercise its discretion properly and
that lesser sentences than those
imposed by the court a quo would
have been appropriate sentences. The present sentences were too harsh
and induced a sense of shock.
[13]
Ms Molmdo who appeared on behalf of the
State submitted that she stood by the heads of argument submitted on
behalf of the State,
namely that the court a quo had weighed up all
the compelling interests and carefully considered each appellants
personal circumstances.
It thus arrived at the correct conclusion.
This was borne out by the third appellant being regarded as less
blameworthy than the
first and second appellant as he did not have a
firearm nor did he shoot the deceased. Having made that finding, the
court a quo
correctly deviated from the imposition of the prescribed
minimum sentence.
The law
[14]
It
is a well established principle that the question of sentencing lies
within the discretion of the trial court and that a court
of appeal
will not unnecessarily interfere with the exercise of such
discretion
[1]
.
A court of appeal will thus not,
“
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…”
[2]
,
[3]
.
[15]
The
court sitting on appeal must therefore be satisfied and interfere
with the sentence if the court a quo’s sentencing discretion
was not exercised at all or exercised improperly or unreasonably when
imposing its sentence
[4]
.
The fact that a sentence is disturbingly inappropriate or
sufficiently disparate has been accepted as sufficient reason for a
court of appeal to intervene
[5]
,
[6]
.
[16]
In
the case of
S
v Anderson
[7]
,
the Appellate Division (as it then was) very succinctly stated the
following “the court of appeal after careful consideration
of
all the relevant circumstances as to the nature of the offence
committed and the person of the accused, will determine what
it
thinks the proper sentence ought to be, and if the difference between
that sentence and the sentence actually imposed is so
great that the
inference can be made that the trial court acted unreasonably, and
therefore improperly, the court of appeal will
alter the sentence”.
[17]
The
over-emphasis of the effect of the appellant’s crimes and the
underestimation of the person of the appellant, constitutes
a
misdirection and in the result a sentence ought to be set aside if
same is the case
[8]
.
In
S
v Salzwedel and Others
,
the
Supreme Court of Appeal held that equally the principle enunciated in
S
v Zinn
must be true when there is an overemphasis of the personal
circumstances of the accused and an underestimation of the gravity of
the offence
[9]
.
[18]
Where
an appeal court is faced with considering substantial and compelling
circumstances in terms of the CLAA, the approach should
be different
from an approach to sentences not imposed under the CLAA, as the
prescribed minimum sentences in terms of the CLAA
are not to be
lightly departed from. The proper approach for the court of appeal
would be to focus on whether the facts which the
sentencing court had
considered, were substantial and compelling or not
[10]
.
[19]
This
does not however mean that an appeal court is restricted to the
circumstances that the trial court had taken into account.
All
circumstances must be considered to determine whether there were, or
were not substantial and compelling circumstances. There
is nothing
in the CLAA which fetters an appeal court’s power to reconsider
the issue of substantial and compelling circumstances.
This would
also be in keeping with the spirit of the Constitution which protects
an accused person against shocking or disproportionate
punishment
[11]
.
[20]
The
consideration of minimum sentences does not bar the requirement that
a sentence must be proportionate to the circumstances and
if the
prescribed sentence is not proportionate with regard to the
circumstances of the case, it ought not to be imposed
[12]
.
Courts however have to be alive to their duty to impose prescribed
minimum sentences unless there are truly convincing reasons
to depart
therefrom. Factors such as “youthfulness” or remorse must
not be lightly taken into consideration
[13]
.
[21]
For
remorse to be considered as a substantial and compelling circumstance
to justify the departure from a prescribed minimum sentence
will mean
that the accused will have to show genuine remorse. His surrounding
actions rather than any last ditch submissions on
his behalf will be
true indicators of whether he was remorseful or not
[14]
.
Application of the law
to the facts
[22]
Both appellants’ personal
circumstances have been summarized. It is against those personal
circumstances that, this court
must consider the aggravating
circumstances of the crimes which were committed. Levels of crime in
our country have reached alarming
proportions such that it has long
begun to pose a threat to our democracy. The courts are clearly
entitled and, indeed obliged
and, take action to protect human life
and property against senseless violation by others. Members of the
public are understandably
concerned, often afraid for their lives and
safety, having to constantly look over their shoulders where the
incidence of crime
are high and the rate of apprehension is low.
[23]
The deceased and the complainant were in
their home which was meant to be their place of sanctity. The
photographs of the deceased
which formed part of the exhibits clearly
show a semi-dressed man reflecting someone who was truly at ease and
not expecting a
brazen intrusion into his home. The same can be said
about the complainant Ms Mhlongo. Neither of them were expecting the
rude
intrusion of the appellants in the middle of the night.
[24]
A perusal of the post-mortem report in
respect of Mr Zulu shows that not only was he shot multiple times
from the front but even
when he chose to protect himself and in the
words of the court a quo “run the gauntlet”, then too was
he not given
an opportunity to save himself. The post mortem report
reflected at least three bullet wounds with entry points on his left
and
right buttocks. He was clearly shot from behind. The appellants
would have stopped at nothing even though it was clear that Mr Zulu
posed no threat to them. What is even more aggravating in this matter
is that the deceased lived in a shack and he was killed for
meagre
items such as a hot plate stove, a kettle, some body lotions and
R20-00 in coins. Surely his life was worth more than that.
[25]
I am not persuaded that any of the personal
circumstances placed before this court in mitigation of sentence and
as pleas to depart
from the minimum prescribed sentence are worthy. I
am further not persuaded that there were any material misdirection by
the court
a quo to warrant interference with the sentences which were
imposed. I am accordingly satisfied that the court a quo gave proper
consideration to both the mitigating and aggravating factors placed
before it. The sentences are proportionate to the crimes.
Conclusion
[26]
I accordingly propose the following order:-
[1]
The second and third appellants’ appeals against their
sentences are dismissed.
[2]
The second and third appellants’ convictions and sentences are
confirmed.
R.
SINGH, AJ
I agree and it is
ordered.
CHILI,
ADJP
I agree.
P.
BEZUIDENHOUT, J
DATE OF HEARING: 6
OCTOBER 2023
DATE OF JUDGMENT: 20
OCTOBER 2023
Appearances:
For
the Appellants:
Mr
Mbatha
Instructed
by:
Durban
Justice Centre,
Ground
Floor, The Marine,
22
Dorothy Nyembe Street,
Durban.
For
the Respondent:
Ms
Molmdo
Instructed
by:
Office
of the Director of Public Prosecutions
Durban
[1]
S
v Romer
2011
(2) SA SACR 153 (SCA) at para 22
[2]
S
v Malgas
2001
(1) SACR 469
(SCA) at 478 D to E
[3]
S
v Fielies
[2014]
ZASCA 191
at para 14
[4]
S
v Hewitt
2017
(1) SACR 309
(SCA) at para 8
[5]
S
v Mothibe
1977
(3) SA 823
(A) at 830 D
[6]
S
v Salzwedel and Others
1999
(2) SACR 586 (SCA)
[7]
1964
(3) SA 494
(A) at 494 G to H
[8]
S
v Zinn
1969
(2) SA 537
(A) at 540 F to G
[9]
1999
(2) SACR 586
(SC)
at
page 591 G to H
[10]
S
v PB
2013
(2) SACR 533
SCA at para 20
[11]
S
v GK
2013
(2) SACR 505
(WCC) at para 7
[12]
S
v Vilakazi
2009
(1) SACR 552
SCA at para 18
[13]
S
v Matyitya
2011
(1) SACR 40(SCA)
at para 23
[14]
S
v Monye and Another
2017
(1) SACR 329
(SCA) at para 14