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[2011] ZASCA 166
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Mokela v S (135/11) [2011] ZASCA 166; 2012 (1) SACR 431 (SCA) (29 September 2011)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 135/11
In the
matter between:
DANIEL WILLIAM
MOKELA
.....................................................................................
Appellant
and
THE
STATE
…........................................................................................................
Respondent
Neutral citation:
Mokela v The State
(135/11)
[2011] ZASCA
166
(29 September 2011)
Coram:
Mthiyane, Maya and Bosielo JJA
Heard: 05 September 2011
Delivered: 29 September 2011
Summary:
Appeal – Sentence – Appellant convicted of robbery with
aggravating circumstances and attempted murder –
appellant
sentenced to imprisonment for 25 years in respect of count 1 and 5
years in respect of count 2 – whether the appeal
court erred in
interfering with the magistrate’s order that the sentences
imposed in respect of the two counts should run
concurrently.
ORDER
On appeal from
: South Gauteng High Court, Johannesburg
(Hussein J and Luther AJ sitting as court of appeal):
1. The appeal succeeds to the extent that the sentences are varied by
the order that the sentence of 5 years in respect of the
count of
attempted murder shall run concurrently with the sentence of 15 years
in respect of the count of robbery with aggravating
circumstances.
The effective sentence to be served by the appellant is a period of
imprisonment of 15 years.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
BOSIELO JA (Mthiyane and Maya JJA concurring)
[1] The appellant was convicted on his pleas of guilty, of robbery
with aggravating circumstances (count 1) and attempted murder
(count
2) in the Regional Court, Pretoria North. He was sentenced to a term
of imprisonment of 25 years in respect of count 1 in
terms of s
51(2)(a)(ii) of the Criminal Law Amendment Act 105 of 1997 (as
amended) (the Act) and to imprisonment of 5 years in
respect of count
2. The regional magistrate ordered that the sentence imposed in
respect of count 2 should run concurrently with
the sentence imposed
in respect of count 1.
[2] The appellant appealed against both his conviction and sentence
to the South Gauteng High Court, Johannesburg. The appeal against
the
conviction and sentence in respect of count 2 failed. However the
appeal against the sentence of 25 years in respect of count
1
succeeded to the extent that the sentence was set aside and replaced
with a sentence of 15 years’ imprisonment. The order
that the
sentences in respect of both counts should run concurrently was set
aside by the court below. The effective sentence for
the appellant is
a term of imprisonment of 20 years. The appellant is appealing to
this Court against his sentence with leave of
the court below.
[3] As the appeal is against the sentence only those facts which are
germane to the determination of an appropriate sentence for
the
appellant deserve to be briefly recounted. According to his
plea-explanation the appellant, accompanied by his friend, went
to
one Ms Beetge’s house to commit theft where they confronted
her. In order to subdue her, the appellant throttled her and
caused
her to fall to the ground and throttled her whilst sprawled on the
ground. She was then stabbed in her stomach with a knife
by the
appellant’s friend.
[4] On appeal to the court below the appeal succeeded partly in that
the appeal against conviction in respect of both counts was
dismissed. However concerning the sentence, the court below found
that the regional magistrate misdirected himself on sentencing
by
treating count 1 as falling within the ambit of s 51(2)(a)(ii) of the
Act by virtue of the fact that the appellant had a previous
conviction of robbery, and thereby treating him as a second offender.
I agree.
[5] The relevant part of s 51(2)(a) of the Act provides:
‘
51(2)
Notwithstanding any other law, but subject to subsections (3) and
(6), a regional court or a High Court shall sentence a person
who has
been convicted of an offence referred to in –
Part II of Schedule 2, in the
case of –
(i) a first offender, to
imprisonment for a period not less than 15 years;
(ii) a second offender of any
such offence, to imprisonment for a period not less than 20
years.’
[6] It is a clear requirement of s 51(2)(a)(ii) that for the
appellant to attract a minimum sentence of imprisonment of not less
than 20 years, the State had to prove that he is a second offender of
robbery with aggravating circumstances. This is the jurisdictional
requirement necessary to trigger s 51(2)(a)(ii). All that the State
proved in this case is that the appellant had previous convictions
amongst others for rape, robbery, theft, assault and escaping from
lawful custody. In terms of s 51(2)(a)(ii) it is not sufficient
that
the appellant has a previous conviction for robbery. The conviction
must be robbery with aggravating circumstances. Robbery
and robbery
with aggravating circumstances are two different offences calling for
different sentences.
[7] In its judgment the court below correctly pointed out that there
is a distinction between robbery and robbery with aggravating
circumstances. As a result, the court below found, correctly, that
the regional magistrate ought not to have treated the appellant
as a
second offender and imposed a sentence of 25 years’
imprisonment but should have treated him as a first offender in
terms
of s 51(2)(a)(i) of the Act, thus qualifying for a sentence of
imprisonment of not less than 15 years. For that reason, the
court
below set aside the sentence of imprisonment for 25 years and imposed
a sentence of 15 years’ imprisonment in terms
of s 51(2)(a)(i)
of the Act.
[8] However, having done this, the court below proceeded to set aside
the order of the regional magistrate that the sentences imposed
in
respect of the two counts should run concurrently. Regrettably the
court did not furnish reasons for this order. What is even
more
disturbing is that it does not appear from the judgment whether
either the appellant’s counsel or counsel for the State
were
afforded an opportunity to address the court on this crucial aspect.
[9] It is well-established that sentencing remains pre-eminently
within the discretion of the sentencing court. This salutary
principle implies that the appeal court does not enjoy carte blanche
to interfere with sentences which have been properly imposed
by a
sentencing court. In my view, this includes the terms and conditions
imposed by a sentencing court on how or when the sentence
is to be
served. The limited circumstances under which an appeal court can
interfere with the sentence imposed by a sentencing
court have been
distilled and set out in many judgments of this Court. See
S v
Pieters
1987 (3) SA 717
(A) at 727F-H;
S v Malgas
2001 (1)
SACR 469
(SCA) para 12;
Director of Public Prosecutions v Mngoma
2010 (1) SACR 427
(SCA) para 11; and
S v Le Roux & others
2010
(2) SACR 11
(SCA) at 26b-d.
[10] In ordering the sentences imposed on the two counts to run
concurrently, the regional magistrate relied on s 280(2) of the
Criminal Procedure Act 51 of 1997 (the Criminal Procedure Act). The
section provides a sentencing court with a discretion when
sentencing
an accused to several sentences to make an order that such sentences
run concurrently. There are a number of reasons
which a sentencing
court can legitimately take into account in this regard. One such
ground is the cumulative effect of such sentences.
It follows that a
court of appeal can only interfere with the exercise of such a
discretion by the sentencing court where it is
satisfied that the
sentencing court misdirected itself, or did not exercise its
discretion properly or judicially. Absent such
proof, the appeal
court has no right to interfere with the exercise of a discretion by
a sentencing court.
[11] I have already stated that the court below did not give reasons
why it interfered with the order made by the regional magistrate
in
exercising his or her discretion for the sentences to run together.
In the absence of such reasons we are unable to conclude
that the
regional magistrate did not exercise the discretion properly or
judicially. In fact the order by the court below has the
hallmarks of
an arbitrary decision. It follows that the court below erred in
setting aside the order by the regional magistrate
for the sentence
imposed in respect of count 2 to run concurrently with that imposed
in respect of count 1. This is so because
the evidence shows that the
two offences are inextricably linked in terms of the locality, time,
protagonists and importantly the
fact that they were committed with
one common intent. (See, for example,
S v Brophy & another
2007 (2) SACR 56
para 14).
[12] I find it necessary to emphasise the importance of judicial
officers giving reasons for their decisions. This is important
and
critical in engendering and maintaining the confidence of the public
in the judicial system. People need to know that courts
do not act
arbitrarily but base their decisions on rational grounds. Of even
greater significance is that it is only fair to every
accused person
to know the reasons why a court has taken a particular decision,
particularly where such a decision has adverse
consequences for such
an accused person. The giving of reasons becomes even more critical
if not obligatory where one judicial
officer interferes with an order
or ruling made by another judicial officer. To my mind this underpins
the important principle
of fairness to the parties. I find it
un-judicial for a judicial officer to interfere with an order made by
another court, particularly
where such an order is based on the
exercise of a discretion, without giving any reasons therefore. In
Strategic Liquor Services v Mvumbi NO & others
2010 (2) SA
92
(CC) para 15 the Constitutional Court whilst dealing with a
failure by a judicial officer to give reasons for a judicial decision
stated that:
‘…
Failure
to supply them will usually be a grave lapse of duty, a breach of
litigants’ rights, and an impediment to the appeal
process…’.
See also
Botes
& another v Nedbank Ltd
1983 (3) SA
27
(A) at 28.
[13] Regarding the duty of judicial officers to give reasons for
their decisions it is instructive to have regard to what the RT
Hon
Sir Harry Gibbs GCMG, AC, KBE, the former Chief Justice of the high
court of Australia stated in the Australian Law Journal
1993 (67A)
494 where he said at 494:
‘…
The
citizens of a modern democracy – at any rate in Australia –
are not prepared to accept a decision simply because
it has been
pronounced, but rather are inclined to question and criticise any
exercise of authority, judicial or otherwise. In
such a society it is
of particular importance that the parties to litigation – and
the public – should be convinced
that justice has been done, or
at least that an honest, careful and conscientious effort has been
made to do justice, in any particular
case, and that the delivery of
reasons is part of the process which has that end in view…’.
See also
Mphahlele v First National Bank of SA Ltd
[1999] ZACC 1
;
1999 (2) SA
667
(CC) para 12;
Commissioner, South African Revenue Service v
Sprigg
Investment 117 CC t/a Global Investment
2011 (4) SA
551
(SCA) paras 28-30.
[14] It is generally accepted that both the accused and the State
have a right to address the court regarding the appropriate sentence.
Although s 274 of the Criminal Procedure Act uses the word ‘may’
which may suggest that a sentencing court has a discretion
whether to
afford the parties the opportunity to address it on an appropriate
sentence, a salutary judicial practice has developed
over many years
in terms whereof courts have accepted this to be a right which an
accused can insist on and must be allowed to
exercise. This is in
keeping with the hallowed principle that in order to arrive at a fair
and balanced sentence, it is essential
that all facts relevant to the
sentence be put before the sentencing court. The duty extends to a
point where a sentencing court
may be obliged, in the interests of
justice, to enquire into circumstances, whether aggravating or
mitigating which may influence
the sentence which the court may
impose. This is in line with the principle of a fair trial. It is
therefore irregular for a sentencing
officer to continue to sentence
an accused person, without having offered the accused an opportunity
to address the court or as
in this case to vary conditions attached
to the sentence without having invited the accused to address him on
the critical question
of whether such conditions ought to be varied
or not. See
Commentary On The Criminal Procedure Act
at 28-6D.
[15] I interpose to state that I have no problem with the sentence of
5 years’ imprisonment imposed in respect of count 2.
The facts
of this case justify such a sentence. The complainant, a 46 years old
woman was attacked by the appellant and his friend
in her own home.
The sanctity and privacy of her private home was invaded. The
appellant initiated the attack on her. This incident
was pre-planned.
The complainant was threatened with a knife pressed against her
throat. Later she was stabbed with a knife in
her stomach by the
appellant’s friend. The appellant was present and witnessed
this and did not intervene. He proffered no
explanation why the
complainant who had already been successfully subdued was stabbed.
The stabbing was unnecessary and gratuitous.
Jewellery valued at
approximately R4 000 was stolen and never recovered. I agree with the
court below that there is no basis to
interfere with the sentence of
5 years in respect of count 2.
[16] In the result, the following order is made:
1. The appeal succeeds to the extent that the sentences are varied by
the order that the sentence of 5 years in respect of the
count of
attempted murder shall run concurrently with the sentence of 15 years
in respect of the count of robbery with aggravating
circumstances.
The effective sentence to be served by the appellant is a period of
imprisonment of 15 years.
____________
L O Bosielo
Judge of Appeal
APPEARANCES:
For
Appellant: Mr JH van Rooyen (Attorney)
Instructed
by:
Legal Aid
South Africa, Pretoria
Legal Aid
South Africa, Bloemfontein
For
Respondent: A Coetzee SC
Instructed
by:
Director
of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein