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[2021] ZASCA 49
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Mhlambi v S (593/2020) [2021] ZASCA 49 (21 April 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
No: 593/2020
In
the matter between:
ISAAC
MLUNGISI MHLAMBI
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Isaac M Mhlambi v
The State
(593/20)
[2021] ZASCA 49
(21
April 2021)
Coram:
Zondi, Schippers and Mbatha JJA and
Carelse and Mabindla-Boqwana AJJA
Heard:
17 February 2021
Delivered:
This judgment was handed down
electronically by circulation to the parties’ representatives
by email, publication on the Supreme
Court of Appeal website and
release to Saflii. The date and time of hand-down is deemed to be
10h00 on 21 April 2021.
Summary:
Criminal law and procedure – sentence –
two counts of robbery with aggravating circumstances –
possession of firearm
– special leave to appeal granted –
cumulative effect of sentence properly considered – sentence
appropriate
– appeal dismissed.
ORDER
On
appeal from:
Gauteng Division of the High Court, Pretoria
(Kubushi and Louw JJ sitting as court of appeal):
The
appeal is dismissed.
JUDGMENT
Schippers
JA (Zondi and Mbatha JJA and Carelse and Mabindla-Boqwana AJJA
concurring):
[1]
The appellant was convicted in the regional
court, Oberholzer, on two counts of robbery with aggravating
circumstances, one count
of unlawful possession of a firearm and one
count of unlawful possession of ammunition. He was sentenced to 15
years’ imprisonment
on each of the two counts of robbery
(counts 1 and 2); five years’ imprisonment on the charge of
unlawful possession of a
firearm (count 4); and five years’
imprisonment on the charge of unlawful possession of ammunition
(count 5). The regional
court ordered the sentences on counts 2, 4
and 5 to run concurrently. Thus, the appellant was sentenced
effectively to 30 years’
imprisonment.
[2]
The
appellant and his co-accused, Mr Tshepo Reginald Matshego,
successfully petitioned the Gauteng Division of the High Court,
Pretoria (the high court) for leave to appeal against their
conviction and sentence. The State conceded that it had not proved
that they had unlawfully possessed ammunition (count 5) and
consequently that they should not have been convicted of that
offence.
Save for setting aside the conviction of unlawful possession
of ammunition,
[1]
the high court
dismissed the appeal against conviction. The appellant’s appeal
against sentence was partially successful.
The sentence of 15 years’
imprisonment on count 1 was set aside and replaced with a sentence of
10 years’ imprisonment.
The appellant’s effective term of
imprisonment was thus reduced to 25 years. Mr Matshego’s appeal
against sentence
was dismissed.
[3]
The
appellant then petitioned this Court for special leave to appeal
against his conviction and sentence. He was granted leave to
appeal
against sentence only. The parties have agreed that this Court may
dispose of the appeal without hearing oral argument,
in terms of
s
19(1)
(a)
of the
Superior Courts Act 10 of 2013
.
[2]
[4]
The basic facts can be shortly
stated. It is clear from the evidence that the robberies were
perpetrated by more than three persons,
although only the appellant
and two of his co-accused had been charged with committing the
crimes. On count 1 (robbery with aggravating
circumstances) the
appellant was convicted of hijacking a Hino 26-ton truck (a horse and
trailer) and its cargo, in broad daylight
on 19 June 2007 in
Carltonville. The truck was fairly new and valued in excess of R1
million, and its cargo of foodstuff, at about
R300 000.
[5]
The modus operandi of the appellant and his
co-perpetrators was this. Two
of the robbers travelling in a
bakkie pulled up alongside the truck and falsely signalled to the
driver that the truck was open.
The truck stopped. When the driver
got to the back of the trailer, the appellant and two of his
co-perpetrators, who were all armed,
emerged from a white Toyota Tazz
motor vehicle (the Tazz), parked at the back of the truck.
[6]
The robbers pointed their firearms at the
driver of the truck and ordered him to get into the Tazz. Two workers
who were in the
truck got out and went to the trailer to see what was
happening. They too were ordered into the Tazz at gunpoint.
Meanwhile, the
robbers in the bakkie returned to the truck and
ordered Mr Samuel Zwandile Madai, a worker who had remained in the
truck, to get
into the bakkie, which he did. He was also ordered not
to look at their faces. The robbers then stole the truck. Mr Madai
was taken
to some bushes nearby where the robbers communicated by
cell phone. He overheard them saying that he was an old man and would
not
give them any problem. The robbers kept Mr Madai there and
ordered him not to get up until they left that place. Some 30 minutes
later, after the robbers had left Mr Madai sought help from a farmer
who took him to a nearby police station.
[7]
The truck driver and his passengers were
driven away in the Tazz in the direction of Ventersdorp and taken
down a farm road in Klerkskraal.
There they were ordered to get out
of the car, crawl under a bush and held hostage for some five hours
by one of the appellant’s
co-accused who was armed. Another
robber returned with the Tazz to fetch the one who had been guarding
them. The truck driver and
his passenger then walked to the N14 and
took a taxi to Ventersdorp where they reported the robbery.
[8]
On 10 July 2007 at about 20h00 and in
Ventersdorp, the appellant and his co-accused hijacked a second
truck, a Mercedes-Benz horse
and trailer carrying a cargo of cement
valued at R800 000 (count 2). The truck driver had stopped to
check whether its headlights
were working. As he got back into the
truck three robbers were at the driver’s door. One of them
pulled him out of the truck
and overpowered him. The driver did not
give evidence; he had left the employ of the truck’s owner. The
appellant’s
palm print was found on the driver’s door of
the truck. The passenger, Mr Kaizer Stock, tried to flee. One of the
robbers
pointed a firearm at him, and ordered him to get back into
the truck and lie on the bed. Another robber then drove the truck for
a considerable distance on the N14 Freeway in Krugersdorp.
[9]
At Klerkskraal the robbers ordered Mr Stock
to get out of the truck, which he did. The appellant’s
co-accused, Mr Matshego,
who arrived in a red Toyota Corolla (the
Corolla) which had been following the truck, pointed a firearm at Mr
Stock, ordered him
to get down and not to look at his face. Another
robber tied Mr Stock’s hands and feet and left him on the side
of the road.
The robbers stole the Mercedes truck. The appellant and
Mr Matshego left in the Corolla. Subsequently Mr Stock managed to
free
himself and found his way to Klerkskraal Police Station. There
he was informed that the police were already searching for the truck,
which had been fitted with a satellite tracking device.
[10]
The Mercedes truck was tracked to
Carltonville where it had stopped. The robbers fled. Employees of the
tracking company who had
searched for the truck received a radio
report that the Corolla was involved in the robbery. It had passed
them on the road. When
they saw that the police were already at the
truck they turned around, pursued the Corolla and pulled it off the
road, some five
kilometres from where the truck had been found. The
appellant and Mr Matshego were apprehended. When the police arrived,
they were
arrested. A 9 mm pistol was found in the cubbyhole of the
Corolla. This firearm was licensed to Mr Nkosana William Ndlovu, the
appellant’s brother-in-law. The evidence showed that the
appellant had called Mr Ndlovu numerous times on his cell phone
before, during and after both robberies. Mr Ndlovu was also charged
on both counts of robbery with aggravating circumstances, but
passed
away whilst the proceedings were pending in the regional court.
[11]
It was the modus operandi of the appellant
and his co-perpetrators on count 2, which led to their arrest on
count 1. They had taken
the driver of the Hino truck and his
passengers to the same area in Klerkskraal, where they were held
hostage. During the first
robbery, Mr Ndlovu was a passenger in the
Tazz. Both he and the appellant were identified by two different
witnesses as having
been involved in the robbery of the Hino truck.
When the investigating officer testified in July 2009 – two
years after the
robbery had been committed – the Hino truck had
not been found. There is no evidence that its cargo was recovered.
[12]
The appellant’s defence put to the
State witnesses was that he was not involved in any of the
hijackings. At the close of
the State case, the appellant and his
co-accused chose not to testify, did not present evidence by any
other witnesses in their
defence and closed their case.
[13]
The grounds of appeal, in summary, are
these. Despite its finding that the trial court was under the wrong
impression that the minimum
sentences in
s 51
of the
Criminal Law
Amendment Act 105 of 1997
were applicable to counts 1 and 2, the high
court erred in failing to find that the sentences on those counts
were vitiated by
material misdirection. It should have remitted the
matter to the trial court to impose sentence afresh. The high court
erred in
overemphasising the seriousness of the offence and the
interests of society, and failed to balance these factors properly
against
the appellant’s personal circumstances. It also erred
in overemphasising the deterrent and retributive aspects of
punishment
at the expense of rehabilitation and prevention. The court
failed to take into account the cumulative effect of the sentences
imposed.
[14]
It
is trite that the power of an appellate court to interfere with a
sentence imposed by a lower court is limited. In
S
v Rabie,
[3]
Holmes JA stated the principle thus:
‘
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.’
[4]
[15]
Applied
to the present case, in my view it cannot be said that in reducing
the appellant’s sentence to an effective term of
imprisonment
of 25 years, the high court failed to exercise its discretion
judicially and properly. The high court, citing
Nndateni
,
[5]
had regard to the fact that the trial court had committed a
procedural irregularity by invoking the provisions of the Criminal
Law Amendment Act 105 of 1997, without warning the appellant that
minimum sentences were applicable in respect of counts 1 and
2. The
court noted that it was not in dispute between the State and the
defence that although the minimum sentences legislation
was
incorrectly applied, the trial court’s jurisdiction entitled it
to impose a sentence of 15 years’ imprisonment
in respect of
counts 1 and 2. It is a settled principle that even where a sentence
is not shockingly inappropriate, an appellate
court is entitled to
interfere or at least consider the sentence afresh, if there has been
a material misdirection in the exercise
of the sentencing
discretion.
[6]
As appears from
paragraph 24 below, the high court considered that the sentence
imposed on the appellant was shockingly inappropriate.
[16]
The high court did not overemphasise the
gravity of the offences and the interests of society. The robberies
were carefully planned,
brazenly executed by a number of robbers and
highly organised. The hijacked trucks and their cargo were of high
value, and the
appellant and his co-accused would not have committed
armed robbery of this sort, unless there was an organised illicit
market
to dispose of the vehicles and cargo. The cargo in the first
robbery consisted of numerous pallets of mealie-meal, samp mealies,
cooking oil and rice valued at R300 000; and in the second
robbery, 17 pallets of cement worth some R800 000
–
goods that can exchange hands very quickly.
[17]
The appellant and his co-perpetrators
subdued their victims by threatening them with firearms. Contrary to
the appellant’s
submission, the fact that no one was killed or
injured was not due to the conduct of the robbers, but because of the
fear they
instilled in their victims. A further aggravating factor
was that the driver of the Hino truck and his passengers were
kidnapped
and held hostage for five hours at gunpoint. This was so
that they could not alert the police to the robbery and to ensure
that
the appellant and his co-accused could make a complete getaway
with the truck and its cargo. In this they succeeded. There is no
admissible evidence that the Hino truck was found and it is clear
that its cargo was never recovered.
[18]
Barely three weeks after the first armed
robbery, the appellant and his co-accused committed the second
robbery. Mr Stock said that
he was terrified when the firearm was
pointed at him and he was ordered to lie face down in the truck; and
that the robber who
drove the truck later said that he would not kill
him. He was also threatened with a firearm whilst being bound hand
and foot,
and left on the side of the road. He testified that he has
nightmares about the incident. But for the tracking device and swift
reaction by employees of the tracking company and the police to
recover the truck and apprehend the appellant, he and his co-accused
would have got away with the truck and its cargo. Further, the trial
court rightly took into account the prevalence of armed hijacking
of
trucks within its area of jurisdiction, and their adverse impact on
business and the economy. The theft of cargo has a ripple
effect on
the supply chain going beyond the stolen goods. This includes
increased insurance premiums for freight companies, loss
of sales and
additional stock replacement and transport costs. All these costs are
ultimately paid by consumers as the costs of
goods increase to offset
these losses.
[19]
What
is more, the appellant overlooks his conviction and sentence in
respect of the unlawful possession of a firearm – a 9mm
Parabellum semi-automatic pistol. The unlicensed possession of
semi-automatic firearms is extremely serious and violent crime
involving the use of such weapons has not diminished. The legislature
had in mind that generally unlicensed weapons of that kind
are
possessed for use in serious crimes such as robbery with aggravating
circumstances and hijacking, hence the prescribed minimum
sentence of
15 years’ imprisonment in the absence of substantial and
compelling circumstances.
[7]
The
appellant had easy access to the firearm which was licensed to Mr
Ndlovu. The appellant assisted the licensed firearm owner
to use it
to commit crimes: it was used in both armed robberies.
[20]
In
the circumstances
,
the submission on behalf of the appellant that the sentence imposed
‘is an extremely severe punishment that should be reserved
for
particular heinous offences’, has no merit. The cases relied
upon by the appellant are distinguishable on their facts
and do not
support the submission advanced.
[8]
[21]
The appellant’s personal
circumstances were properly taken into account. For practical
purposes, he was a first offender.
He owned property that pointed to
stability. He was 33 years old when the crimes were committed, had
passed matric, has two children
aged 9 and 13, and earned R800 per
week making and installing burglar bars and security gates.
[22]
The
present case is one in which the personal circumstances of the
appellant are overshadowed by the seriousness of the crimes and
the
interests of society.
[9]
The
appellant showed no remorse and consequently is not a good candidate
for rehabilitation.
[10]
[23]
The
submission that the high court should have remitted the matter to the
trial court to consider sentence afresh because it was
wrongly under
the impression that minimum sentences were applicable, has no
foundation. Again, the authorities relied upon by the
appellant do
not support this submission.
[11]
The high court approached the matter on the basis that counts 1 and 2
should be treated separately in determining an appropriate
sentence.
This approach is beyond criticism. In
S
v Young
,
[12]
the importance of treating offences separately to determine an
appropriate sentence, was stated as follows:
‘
[I]n
the present case I think it conduces to clearer thinking in
determining the appropriate sentences to treat each offence
separately.
Moreover, no risk of duplication of punishment thereby
arises for each offence is sufficiently distinct, different and
serious;
and in the ultimate result the cumulative effect of all the
sentences imposed can be otherwise suitably controlled to avoid undue
harshness to the appellant.
’
[24]
The
cumulative effect of the sentences imposed on the appellant in
respect of counts 1, 2 and 4 were properly controlled and its
undue
harshness suitably mitigated in the high court’s order. It held
that whilst individual sentences ought not to be disturbed
when there
was no misdirection by the sentencing court, the effective sentence
of 30 years’ imprisonment was excessive, and
induced a sense of
shock. It referred to the judgments of this Court in which it has
warned against the imposition by trial courts
of excessively long
sentences; and held that such sentences ‘ought to be realistic
and should not be open to the interpretation
that they have been
designed for public consumption’.
[13]
[25]
The high court accordingly set aside the
sentence of 15 years’ imprisonment imposed on the appellant in
respect of count 1
and substituted it with a sentence of 10
years’ imprisonment. In doing so, the court reasoned that since
both the appellant
and Mr Matshego had been convicted on count 2, if
the sentences on counts 1 and 2 had to run concurrently in their
entirety, the
purpose of adequately punishing the appellant for his
conduct, would be defeated. This finding and the reasons for it
cannot be
faulted.
[26]
In the result, the appeal is dismissed.
_______________________
A
SCHIPPERS
JUDGE
OF APPEAL
APPEARANCES
For
appellant:
M Kilian
Instructed
by:
Du
Toit Attorneys, Pretoria
SMO
Seobe Attorneys, Bloemfontein
For
respondent:
M J van Vuuren
Director
of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
Nothing
turns on the fact that the Gauteng Division of the High Court,
Pretoria set aside this conviction in the body of the judgment
and
that it is not referred to in the court's order.
It
is a settled principle that when interpreting a court’s
judgment or order, the court’s intention must be ascertained
primarily from the language of the judgment or order according to
the usual, well-known rules of interpretation. The judgment
or order
and the courts reasons for giving it must be read as a whole in
order to ascertain its intention (
Firestone
South Africa (Pty) Ltd v Genticuro
AG
1977 (4) SA 298
(A) at 304D-F;
Newlands
Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic (Pty) Ltd
2015 (4) SA 34
(SCA) para 10.
[2]
Section 19
(a)
provides: ‘The Supreme Court of Appeal or a Division
exercising appeal jurisdiction may, in addition to any power as may
specifically be provided for in any other law-
(a)
dispose of an appeal without
the hearing of oral argument’.
[3]
S v
Rabie
1975 (4) SA 855
(A) at 857.
[4]
Rabie
fn
3 affirmed by the Constitutional Court in
S
v
Shaik
and Others
[2008] ZACC 7
;
2008
(5) SA 354
(CC) para 66.
[5]
Nndateni
v S
[2014]
ZASCA 122
[6]
S v
Jimenez
[2003] ZASCA 2
;
[2003] 1 All SA 535
(SCA) para 7.
[7]
S
v Swartz
2016
(2) SACR 268
(WCC) para 41, affirmed in
S
v Motloung
[2016] ZASCA 96
;
2016 (2) SACR 243
(SCA) para 23.
[8]
Muller
v S
[2011]
ZASCA 151
;
Zondo
v S
[2012] ZASCA 27
;
Moswathupa
v S
[2011] ZASCA 172.
[9]
S
v Segole and Another
1999 (2) SACR 115 (W) at 124-125;
S
v Vilakazi
[2008]
ZASCA 87; [2008] 4 All SA 396 (SCA); 2009 (1) SACR 552 (SCA); 2012
(6) SA 353 (SCA) para 58.
[10]
S
v Matyityi
[2010]
ZASCA 127
;
2011 (1) SACR 40
(SCA) para 12.
[11]
Nndateni
v S
[2014]
ZASCA 122
;
Moswathupa
fn 5 para 6.
[12]
S v
Young
1977
(1) SA 602
(A) at 610G-H.
[13]
Zondo
v S
[2012]
ZASCA 51
;
S
v
S
v
Mhlakaza
and Another
1997 (1) SACR 515
(SCA) at 524.