About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2011
>>
[2011] ZASCA 183
|
|
Fakude v S (82/2010) [2011] ZASCA 183 (30 September 2011)
Links to summary
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 852/2010
In the matter between:
LANGA FAKUDE
…...................................................................
First
Appellant
STHEMBISO MTHETHWA
…...............................................
Second
Appellant
and
THE STATE
…...................................................................................
Respondent
Neutral citation:
Fakude v The State
(852/10)
[2011] ZASCA 183
(30 September 2011)
Coram:
PONNAN, THERON and SERITI JJA
Heard:
08 September 2011
Delivered:
30 September 2011
Summary:
Appeal – sentence - conviction in
the Regional Court of robbery with aggravating circumstances –
Trial court misdirecting
itself by imposing sentences in excess of
its jurisdiction.
ORDER
On appeal from: KwaZulu Natal High Court,
Pietermaritzburg (Balton J and Lopes AJ sitting as court of appeal):
1. The appeal is allowed.
2. The order of the court below is set aside and
substituted with the following:
(a) The appeal against conviction is dismissed.
(b) The appeal against sentence succeeds. The sentence
imposed upon each accused is set aside and replaced with:
‘
Each accused is sentenced to
15 years’ imprisonment.’
___________________________________________________________
JUDGMENT
SERITI JA (PONNAN and THERON JJA concurring):
[1] The appellants, Messrs Fakude and Mthethwa were
arrested on 17 January 2000, and appeared in the Pinetown Regional
Court facing
one charge of robbery with aggravating circumstances.
After their arrest, they were not released on bail and on 1 November
2000
they were convicted as charged. On 1 December 2000 the
appellants were sentenced to 20 years’ and 25 years’
imprisonment
respectively.
[2] Each appellant appealed against both conviction and
sentence and on 17 November 2005, the KwaZulu-Natal High Court (per
Lopes
AJ, Balton J concurring), dismissed the appeal and confirmed
the convictions and sentences. On 24 February 2010 the high court
granted the appellants leave to appeal to this court against sentence
only.
[3] The facts leading to conviction are: On Friday 14
January 2000, at about 18h00, the complainant Mr Daharaj Hurdial
(complainant)
drove driving home in his Volvo S40 motor vehicle. His
teenage son and daughter were passengers in the vehicle. On arrival
at their
home, he drove into the garage. At that stage, two men, each
armed with a fire-arm came running into the garage. One of the men
took the motor vehicle keys, and ordered the complainant and his
children to get back into the motor vehicle. One of the two men
took
to the driver’s seat and the complainant’s son was forced
to occupy the front passenger seat. The complainant
and his daughter
and one of the assailants occupied the back seat. The motor vehicle
went out of the yard, drove towards the N2
highway. They drove
towards the airport and just before the Spaghetti Junction, the motor
vehicle stopped. The complainant and
his minor children were ordered
to run into the bush. The two assailants drove off with the motor
vehicle. The two assailants took
the complainant’s cellular
phone, wallet, watch and pens. Inside the wallet there were credit
cards and about R500 cash.
The value of the motor vehicle was about
R206 000, the cellular phone was worth about R2000 and the watch
about R400. The matter
was reported to the police. Having been
informed by the complainant that his hijackers had used his cellular
phone, the police
were able to identify the number that had been
called and in turn make telephonic contact with someone called
Richard. The police
posed as robbers who were planning a heist for
which, so they informed Richard they required a fast car such as a
BMW. Richard
told them that he did not have a BMW but a Volvo. They
agreed on a purchase price of R10 000 and a meeting was arranged for
the
handing over of the vehicle for the following Monday, 17 January
2000 the complainant’s. A trap was set by the police and
the
motor vehicle was recovered and the appellants were arrested. When
the motor vehicle was recovered, its CD shuttle, spare wheel
and
floor mats were missing.
[4] In mitigation of sentence, the trial court was
informed from the bar that the first appellant was at that stage 24
years old,
had an 8 year old daughter, and that at the time of his
arrest was a taxi driver earning R250 per week. The court was also
informed
that he had been in custody from the time of his arrest,
being 17 January 2000 until the day of his conviction, on 1 November
2000.
The first appellant confirmed his previous conviction which
according to the SAP69 form, was theft committed on 17 November 1993
and for which he was sentenced to 7 strokes with a light cane.
[5] As far as the second appellant is concerned, the
trial court was informed that he was 26 years old, he had two minor
children
aged 10 years and 5 years. He was self-employed and was
earning R850 per month. He had also been in custody from the date of
his
arrest until the date of his conviction. The second appellant
confirmed his previous convictions. According to the SAP69 form, on
11 July 1988 he was convicted of theft and in terms of section
297(i)
(a)(
ii) of the
Criminal Procedure Act 51 of 1977
the
passing of sentence was postponed for 3 years. On 31 March 1993 he
was convicted of robbery and was sentenced to 3 years’
imprisonment.
[6] Before us Counsel for the State conceded that the
trial court had misdirected itself by imposing sentences of
imprisonment on
the appellants that were substantially in excess of
its jurisdiction. That concession was well made. Section 92(1)
(a)
of the Magistrates’ Court Act 32 of 1944 restricts the
ordinary penal jurisdiction of the regional court to imprisonment for
a term not exceeding 15 years’. The High Court appeared not to
appreciate that the trial court had exceeded its ordinary
penal
jurisdiction. Had it done so, it could hardly have confirmed the
sentence.
[7] In
S v Ingram
1995
(1) SACR 1
(A) at 8i-9b, Smalberger JA said:
‘It is
trite that the determination of an appropriate sentence requires that
proper regard be had to the triad of the crime,
the criminal and the
interests of society. A sentence must also, in fitting cases, be
tempered with mercy…. Circumstances,
however, vary and the
punishment must ultimately fit the nature and seriousness of the
crime. The interests of society are not
best served by too harsh a
sentence; but equally so they are not properly served by one that is
too lenient. One must always strive
for a proper balance. In doing so
due regard must be had to the objects of punishment.’
See also
S v Samuels
2011 (1) SACR 9
(SCA) para 9.
[8] Counsel for the State submitted that an appropriate
sentence in respect of each appellant was a term of imprisonment of
15 years.
When considering sentence, the trial court said: ‘This
is the worst kind of hijacking one can imagine.’ This court has
held that in cases of an armed robbery of a motor vehicle with the
obvious danger of abduction, serious assault and murder of the
driver
and passengers, the courts could not avoid imposing heavy sentences.
The commission of this offence had become so common,
especially in
and around our large cities, that innocent men and women used the
road with great fear and anxiety. The brutal acts
of robbers cause
enormous damage to our country and cast a dark shadow over the
confidence of a community in policing, prosecution
and administration
of justice. (See
S v Khambule
2001 (1) SACR 501
(SCA).)
[9] In order to determine an appropriate sentence, the
court must, inter alia, carefully evaluate all the mitigating and
aggravating
factors. There are certain mitigating factors in this
matter and they are the following: both appellants have young
children; they
were employed at the time of their arrest; and they
were in custody for a period of almost two years at the time of their
sentence.
Counsel for the appellants submitted that no one was
injured during the hijacking and that the vehicle was recovered
constituted
mitigating factors. I do not agree. The fact that no one
was injured was fortuitous and the fact that the vehicle was
recovered
was due to excellent detective work. Those two factors are
therefore neutral factors.
[10] Counsel for the appellants further submitted that
the ages of the appellants constitute mitigating factors as they were
relatively
young. I do not agree. In
S v
Matyityi
2011 (1) SACR 40
SCA para 14, Ponnan
JA said:
‘
Thus, whilst someone under the age of 18
years is to be regarded as naturally immature, the same does not hold
true for an adult.
In my view a person of 20 years or more must show
by acceptable evidence that he was immature to such an extent that
his immaturity
can operate as a mitigating factor. At the age of 27
the respondent could hardly be described as a callow youth. At best
for him,
his chronological age was a neutral factor. Nothing in it
served, without more, to reduce his moral blameworthiness. He chose
not
to go into the box, and we have been told nothing about his level
of immaturity or any other influence that may have been brought
to
bear on him, to have caused him to act in the manner in which he
did.’
In this matter, the appellants did not testify under
oath. We are not aware of the level of their maturity and they did
not disclose
to the court why they acted in the manner in which they
did. Their ages therefore do not constitute mitigating factors.
[11] As against the mitigating factors there are
aggravating factors. They are the following: the previous convictions
of the appellants;
the appellants were motivated by greed as they
were both employed at the time of the commission of this offence;
both appellants
had fire-arms at the time of the robbery; while the
complainant and his two children were not physically injured, the
incident
inevitably caused them serious trauma and psychological
harm; both appellants showed no remorse; and when the motor vehicle
was
recovered various items were missing.
[12] In my view, the aggravating factors far outweigh
the mitigating factors. It is trite that robbery with aggravating
circumstances
is a serious offence, especially when it involves the
taking of a motor vehicle. Here there is an additional consideration.
The
police investigation appears to have uncovered that the
appellants are involved in the business of hijacking and selling
vehicles.
When the nature of the crime committed, personal
circumstances of the appellants, interest of society and the
mitigating and aggravating
circumstances are taken into account, it
is clear to me that a substantial custodial sentence is the only
appropriate type of sentence
that can be imposed. A period of 15
years’ imprisonment will be fair in all of the circumstances of
this case.
[13] In the result:
1. The appeal is allowed.
2. The order of the court below is set aside and
substituted with the following:
(a) The appeal against conviction is dismissed.
(b) The appeal against sentence succeeds. The sentence
imposed upon each accused is set aside and replaced with:
‘
Each accused is sentenced to
15 years’ imprisonment.’
__________________
W L Seriti
Judge of Appeal
APPEARANCES:
For Appellants: TP Pillay
Durban Justice Centre, Durban KwaZulu Natal
For Respondents: C Kander
The Director of Public Prosecutions, Pietermaritzburg