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2023
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[2023] ZAFSHC 495
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Mqathuli v S (A85/2023) [2023] ZAFSHC 495 (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.