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2023
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[2023] ZAFSHC 485
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Mqathuli v S (A85/2023) [2023] ZAFSHC 485 (14 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A85/2023
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
VUYISILE
MQATHULI
Appellant
and
THE STATE
Respondent
JUDGMENT
BY
:
MHLAMBI J,
HEARD ON:
13 SEPTEMBER 2023
DELIEVERED ON:
14 DECEMBER
2023
[1]
This an opposed application for appeal against
the sentence which was imposed by the Regional Court on 01 March
2018. The appellant
was convicted and sentenced on the following
counts:
1.1
Contravention of section 3 of Act 60 of 2000, read with section 51 of
Act 105 of 1997 (Possession of semi-automatic
fire arm), and
sentenced to a term of 15 years’ imprisonment;
1.2
Robbery with aggravating circumstances read with the provisions of
section 51(2)(a)
of the
Criminal Law Amendment Act, 105 of 1997
, and
sentenced to a term of 15 years’ imprisonment;
1.3
Attempted murder and sentenced to a term of 6 years’
imprisonment.
1.4
The court
a quo
ordered that the sentences imposed should not
run concurrently and the appellant was therefore sentenced to an
effective term of
36 years’ imprisonment.
[2]
The following is a synopsis of the grounds of appeal that the
appellant relies on:
2.1
That the court
a quo
erred in find that no substantial and
compelling circumstances are present to deviate from the prescribed
minimum sentence.
2.2
That the court
a quo
erred by ordering that the sentences
should not run concurrently.
2.3
That the sentence of 36 years’ imprisonment is shockingly
inappropriate.
[3]
The appellant was born on 27 August 1987 and was therefore 29 years’
old at the time of the commission
of the offences. He is unmarried,
with 2 children aged 6 and 1 year old. He was a first offender and
was employed at the time sentencing
as he worked for a farm providing
gardening services. He progressed until standard 7 at school. He
pleaded guilty to the charges
whereupon he was convicted.
[4]
The offences were committed at the complainant’s home where she
was assaulted by the appellant
who used a semi-automatic fire arm to
threaten the complainant who was pregnant at the time. The
complainant sustained serious
injuries and both she and young son had
to undergo trauma counselling thereafter.
[5]
The respondent submitted that the approach to an appeal on sentence
imposed in terms of the minimum
sentence legislation should be
different to an approach to other sentences imposed under the
ordinary sentencing regime because
of the minimum sentences to be
imposed are ordained by the Act. Consequently, a proper enquiry on
appeal is whether the facts which
were conceded by the sentencing
court are substantial and compelling or not.
[1]
The appellant was serving an effective sentence of 36 years’
imprisonment and the cumulative effect if the sentences imposed
was
so excessive that the imposed sentence is disturbingly inappropriate.
Consequently, it was contended that the court
a
quo
erred
in finding that the sentences should have run concurrently.
[6]
It was contended furthermore that it was generally accepted that in
ornately long terms of imprisonment
did not contribute to the reform
of an accused person. On the contrary they had the negative effect of
the denuding the accused
of all hope of rehabilitation.
[2]
When an accused is convicted of more than one offence, it is salutary
for a sentencing court to consider the cumulative effect
the
respective sentences to prevent an accused person from undergoing a
severe and unjustifiably long effective term of imprisonment
by
ordering that such sentences should run concurrently.
[3]
[7]
Mr Lencoe, on behalf of the respondent, postulated that the issue for
determination was whether the
trail court erred in finding that there
were no compelling and substantial circumstances in favour of the
appellant in order to
deviate from the prescribed minimum sentences.
He referred to the well know case of
State
v Rabie
[4]
where the following was stated:
“
1.
In every appeal against sentence, whether imposed by a magistrate or
a judge, the court hearing the appeal-
(a)
should
be guided by the principle that punishment is
"pre-eminently a
matter for the discretion of the trial Court"; and
(b)
should
be careful not to erode such discretion: hence the further principle
that the sentence should only be altered if the discretion
has not
been "judicially and properly exercised".
2. The
test under (b) is whether the sentence is vitiated by
irregularity or misdirection or is disturbingly
inappropriate.
[8]
He argued that the trial court extensively dealt with the personal
circumstances of the appellant in
arriving at the conclusion that
they did not constitute compelling and substantial circumstance to
deviated from the minimum sentence.
It also articulated its reasoning
in arriving at the conclusion that the aggravating circumstances
outweighed the personal circumstances
of the appellant.
[9]
He submitted that question that might arise was whether the trial
court should not have ordered that
the sentence of 6 years’
imprisonment imposed on the attempted murder charge should run with
the sentence of 15 years’
imposed on the robbery with
aggravating circumstances charge, given that the two charges arose
from the same incident. He was of
the view that a trial’s
sentence cannot be charged merely because the court of appeal
preferred a different sentence in the
absences of misdirection by the
trial court in exercising its discretion in sentencing. Relying on
State
v Hewitt
[5]
he submitted that such interference is justified only where there
exist a “
striking”
or
“
startling”
or
“
disturbing”
disparity between the trial court’s sentence and that which the
appellate court would have imposed. In such instances the
trial’s
discretion is regarded as having been unreasonably excised.
[10]
In judgment of the court
a
quo
,
it was state that the three sentences imposed in the three counts
should run separately because the appellant failed to desist
from
inflicting grievous bodily injury to the complainant after she had
transferred the money to his account. In
State
v Mthetwa
[6]
it was stated that an order that sentences should run concurrently is
called for where the evidence showed that the relevant offences
where
in inextricably linked in terms of the locality, time, protagonist,
importantly, the fact that they were committed with one
intent.
[11]
Having considered the above, I am of the view that the appeal should
succeed and the sentences be allowed to run
concurrently. I therefore
make the following:
[12]
I therefore make the following order:
Order:
1.
The appeal succeeds.
2.
The sentence of 36 years’ is set
aside and replaced with the following:
2.1
Count 2: 15 years’ imprisonment.
2.2
Count 3: 15 years’ imprisonment.
2.3
Count 4: 6 years’ imprisonment.
2.4
The sentence imposed on count 2 should
run concurrently with the term of imprisonment imposed on count 3.
2.5
That the appellant be sentenced to an
effective sentence of 21 years’ imprisonment.
2.6
That the sentence be antedated to 01
March 2018.
JJ MHLAMBI, J
Counsel
for the applicant:
Mr C
Van Wyk
Instructed
by:
Legal
Aid South Africa
4
th
Floor Fedsure Building
Charlotte
Maxeke Street
Bloemfontein
Counsel
for the applicant:
Mr K
Moruri
Instructed
by:
Moruri
Attoneys Incorporated
Office
03 Anglican Cathedral
Cnr
Saltzmann & St Georges’ Street
Bloemfontein
Counsel
for the respondent:
Adv.
M Strauss
Instructed
by:
Director
of Public Prosecutions
Waterfall
Building
Bloemfontein
[1]
State v PB
2013 (2) SACR 533
SCA at para 20.
[2]
Itani Thomas Modau v The State (419/12)
[2011] ZASCA 191
at para 5.
[3]
State v Mthetwa
2015 (1) SACR 302
(GP) at para 21.
[4]
1975 (4) SA 855
(A) at 857D-F.
[5]
2017 (1) SACR 309
(SCA) at para 37.
[6]
Supra.