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[2021] ZAGPPHC 141
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Moyo v S (A208/2020) [2021] ZAGPPHC 141 (5 March 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
CASE
NO: A208 /2020
In the
matter between:
TWOMAN MOYO
APPELLANT
and
THE STATE
RESPONDENT
JUDGMENT
THIS
JUDGMENT HAS BEEN HANDED DOWN REMOTELY AND SHALL BE CIRCULATED TO THE
PARTIES BY WAY OF EMAIL. ITS DATE AND TIME OF HAND DOWN
SHALL BE
DEEMED TO BE 5 MARCH 2021 AT 16H00
MALI J:
INTRODUCTION
[1]
The
appellant, Mr Twoman Moyo was found guilty in Benoni Regional Court
(“
trial
court”
)
on three counts; namely
Fraud;
contravening the provisions of sections 68(3)(a) and
89(1) of the National Road Traffic Act, Act 93 of 1996,
therein that
he inserted his passport photo on a forged driver’s license;
and contravening
sections 49(1)(a)
of the
Immigration Amendment Act,
Act
13 of 2002 read with sections 1, 10, 25 and 26 of the Immigration
Amendment Act 12 of 2011therein that he entered and remained in
Republic of South Africa without the legally required documentation.
[2]
The
appellant was legally represented and he appeals against sentence. He
was sentenced to eight years’ imprisonment on count
one, three
years’ imprisonment on count 3 and two years’
imprisonment on count four. The sentences were ordered to
run
concurrently.
FACTUAL BACKGROUND
[3]
The appellant is a
Zimbabwean citizen. During December 2017 he pretended to be one
Dignity Ngwenya. At the time he rented
a flatbed trailer valued
at R 35 000, 00. For purposes of the rental transaction the
appellant used a fraudulent driver’s
license and salary advice.
The trailer was never recovered by the rightful owner.
[4]
On his arrest, a
counterfeit Temporary Asylum Seeker Permit was found at his place of
residence. At the time the trial was
heard by the Benoni
Regional Court; he was already 12 years illegally in the Republic of
South Africa.
AD SENTENCE
[5]
On
behalf of the appellant this court is to be persuaded to accept that
the trial court misdirected itself in imposing the sentences.
This
would be because the trial court erred in overemphasizing the
seriousness of the offence over the interest of the society
whilst
the personal circumstances of the appellant were under-emphasised.
The other complaint is that the sentence induces
a sense of shock and
it is harsh, and also that the court did not take into account that
the appellant spent three months in custody
awaiting trial.
PERSONAL CIRCUMSTANCES
[6]
The
appellant’s personal circumstances submitted to the trial court
are; he was 32-year-old and a married man with three minor
children.
One the children is living in Zimbabwe and two of them live in South
Africa.
[7]
His
highest standard of qualification is Form Four (grade 11). He was
employed as a waiter in a restaurant and earned R5000.00 per
month.
He spent over three months in custody awaiting trial and pleaded
guilty to the charge of being in the country illegally.
[8]
In
considering an appropriate sentence on appeal the court must exercise
caution not to erode the discretionary powers of the trial
court
[1]
.
It is trite that the power of an appeal court to interfere with
sentence is limited.
[9]
In
S
v Kgosimore
Scott
JA said the following with respect to an appeal court’s
powers to interfere with sentence:
“
It
is trite law that sentence is a matter for the discretion of the
court burdened with the task of imposing the sentence. Various
tests have been formulated as to when a Court of appeal may
interfere. These include whether the reasoning of the trial
court is vitiated by misdirection or whether the sentence imposed can
be said to be startlingly inappropriate or to induce a sense
of shock
or whether there is a striking disparity between the sentence imposed
and the sentence the Court of appeal would have
imposed. All
these formulations, however, are aimed at determining the same thing:
viz whether there was a proper and
reasonable exercise of the
discretion bestowed upon the court imposing sentence. In the
ultimate analysis this is the true
inquiry. ….. Either
the discretion was properly and reasonably exercised or it was not.
If it was, a Court of
appeal has no power to interfere; if it
was not, it is free to do so.”
[2]
[10]
Imposing sentence is one of the most difficult tasks which a
presiding officer has to grapple
with. It has been described as a
‘painfully difficult problem’ and it involves a
careful and dispassionate consideration
of all factors. The court
must consider the factors referred to in
S
v Zinn
being the interests of society, the personal circumstances of the
accused and the nature of the offences that have been committed.
The
court must also consider the recognised objectives of sentencing
being prevention, rehabilitation, deterrence and retribution.
[11]
The seriousness of the offences, the circumstances under which they
were committed and the victim
are also relevant factors in respect of
the last element of the triad. The personal circumstances of
the accused including
his age, education, dependants, his previous
convictions, if any, his employment and other relevant conduct or
activities call
for consideration in respect of the second element.
An appropriate sentence should also have regard to or serve the
interests of
society, as the first element of the
Zinn
triad,
which is the protection of society’s needs, and the deterrence
of would-be criminals.
[12]
A sentencing court must not over-emphasise the public interest and
general deterrence.
S
v Scott-Crossley
2008
(1) SACR 223
(SCA).
‘
Plainly
any sentence imposed must have deterrent and retributive force. But
of course one must not sacrifice an accused person on
the altar of
deterrence. Whilst deterrence and retribution are legitimate elements
of punishments, they are not the only ones,
or for that matter, even
the overriding ones.’
The
judgment further states at para 35:
‘
It
is true that it is in the interests of justice that crime should be
punished. However, punishment that is excessive serves neither
the
interests of justice nor those of society.’
As
our courts have often said the object of sentencing is to serve the
public interest and not satisfy public opinion. In S
v Mhlakaza
& another Harms JA held the following:
It
remains the court’s duty to impose fearlessly an appropriate
and fair sentence even if the sentence does not satisfy the
public.’
Referring
to Chaskalson P in S v Makwanyane & another paras 88-89
in which the court said the following:
‘
Public
opinion may have some relevance to the enquiry, but, in itself, it is
no substitute for the duty vested in the Courts. .
.This Court cannot
allow itself to be diverted from its duty to act as an independent
arbiter of the Constitution by making choices
on the basis that they
will find favour with the public.’
[3]
[13]
When considering
the personal
circumstances of the accused and his age, to impose the minimum
sentence for the offence the court must also consider
the cumulative
effect of the sentences on multiple counts.
[14]
We now turn to examine whether the trial court applied
the legal principles enunciated
above. At page 54 of the judgment of
the trial court from line 23 to 25 the following is stated:
“
You
know Mr Moyo, if I look at your personal circumstances. (sic) You are
32-years-old. You are a Zimbabwean National……”
[15]
The record continues at page 55 from line 2 -25 the trial court took
into consideration that
he has children, the economic circumstances
of Zimbabwe which led him seeking greener pastures in South Africa.
It is worth
repeating the record from line 6 to 25;
“
What
I find offensive is the fact that you did come and work here, you got
a job as a waiter earning R5000.per month. And still
you contributed
while you are a mere guest or be it an unlawful guest in this
country. You contributed to our vast crime problem.
That I find
particularly aggravating. And if I look at your SAP 69s it is once
again that the justice system fails the public.
Because you have got
two previous convictions, sir………….
Because one of the conditions for an asylum
seeker is that you
should: “All permit holders are obliged to respect the laws of
South Africa”. So you basically
disqualify yourself an
asylum seekers permit when you commit crime. So you committed already
two crimes. Nothing was done. The
system is not working, that I
know.”
[16]
From the above the trial court carefully considered the personal
circumstances of the accused/
appellant. The complaint pertaining to
the appellant having spent three months in custody awaiting trial is
irrelevant. There is
no clear legal basis for the said mathematics.
[17]
In imposing sentences at page 56 lines 20-24 the trial court said the
following:
“
To
curb the cumulative effect of the sentences keeping in mind your
record, mitigation and aggravation the court orders that the
sentences on count 1 and 3 will be served concurrently. So effective
sir, I am sending you to jail for 10 years. Thank you, you
may stand
down.”
[18]
From the above, it is concluded that the trial court appropriately
applied the legislation in
order to decrease the lengthy sentence.
There is nothing more expected from the trial court. In the
circumstances we find that
the trial court did not misdirect itself
in sentencing the appellant.
ORDER
1.
The
appeal against sentence is dismissed.
N.
P. MALI
JUDGE
OF THE HIGH COURT
I
agree
D. PICK
ACTING
JUDGE OF THE HIGH COURT
IT
IS SO ORDERED.
APPEARANCES
FOR THE APPELANT
:
Adv
Kgagara (Mr)
For
THE RESPONDENT :
Adv Krause (Mr).
1.
Sv Pillay
2.
[2]
S
v Kgosimore
Scott
JA
[3]
S
v Scott-Crossley
2008
(1) SACR 223
(SCA).