About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 198
|
|
Letsiri and Another v S (A689/2016) [2021] ZAGPPHC 198 (1 April 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
GAUTENG
DIVISION
Case
Number: A689/2016 Date: 18 November 2020
REPORTABLE:YES/NO
OF
INTEREST TO OTHER JUDGES:YES/NO
REVISED
DATE:01
APRIL 2021
KOBOPHIRI
SMODEN LETSIRI
FIRST APPELLANT
CEDRICK
NKADIMENG
SECOND
APPELLANT
and
THE
STATE
RESPONDENT
This
judgment is issued by the Judge whose name is reflected herein and is
submitted electronically to the Parties/their legal representatives
by email. The judgment is further uploaded to the electronic file of
this matter on CaseLines by the Judge or his/her Secretary.
The
date
of this judgment is
deemed to
be 01 April 2021.
JUDGMENT
LUKHAIMANE
AJ:
[1]
The First Appellant (Accused 1 in the trial court) stood trial in the
regional court, Pretoria, along with two others, on the following
charges:
(a)
Count 1: Murder read with Section 51(2) of the Criminal Law Amendment
Act, Act 105 of 1997;
(a)
Count 2: Kidnapping;
(b)
Count 3: Murder read with section 51(2) of Act 105 of 1997;
(c)
Count 4: Kidnapping;
(d)
Count 5: Murder read with section 51(2) of Act 105 of 1997;
(e)
Count 6: Kidnapping;
(f)
Count 7: Assault with the intent to cause grievous bodily harm;
(g)
Count 8: Kidnapping
[2]
The First Appellant was legally represented at the time of his trial,
had pleaded not guilty and was convicted on all counts. The presiding
magistrate had found that the deceased were all killed during
the
same incident, together with the assault on the complainant.
[3]
The matter came before this court on petition directed to the Judge
President
for leave to appeal the Appellants’ conviction and
sentence. The trial court had refused such leave to appeal on 21
April
2016. On petition, leave to appeal was refused on conviction,
however granted on sentence. Although leave to appeal was granted
to
both Appellants, only the First Appellant has persisted with the
appeal. Therefor-e, this judgment is only in respect of the
First
Appellant.
[4]
Applications for leave to appeal a conviction and/or sentence imposed
by a Magistrate Court are governed by
section 3098
of the
Criminal
Procedure Act 51 of 1977
and upon such leave being refused, on
petition to the Judge President in terms of
section 309C
of the same
Act.
[5]
On 23 March 2015, the First Appellant was convicted by the
presiding magistrate. The trial court held as follows:
“
You
have been convicted on all counts but regarding murder, it will be
a
condition
under section 51(2). I will elaborate myself on section 51(2) and (1)
during the sentencing status.”
[1]
[6]
On 14 July 2015, the 1
st
Appellant was sentenced to an
effective sentence of 52 years of imprisonment as follows:
(a)
Count 1: Murder
-15 years of imprisonment
(b)
Count 2: Kidnapping
-1 year imprisonment
(c)
Count 3: Murder
-15 years of imprisonment
(d)
Count 4: Kidnapping
-1 year imprisonment
(e)
Count 5: Murder
-15 years imprisonment
(f)
Count 6: Kidnapping
-1 year imprisonment
(g)
Count 7: Assault with the intent to
-3 years imprisonment
cause
grievous bodily harm
(h)
Count 8: Kidnapping
-1 year imprisonment
[7]
Although
the effective sentence is 52 years of imprisonment, the trial court
noted that the effective sentence was 51 years of imprisonment.
[2]
[8]
The
origins of the conviction and the sentence arose from events which
occurred on 29 November 2009. The First Appellant, together
with two
others,
were
part of a community mob that hunted down the deceased, assaulted them
with sticks, stones and a variety of tools, killing
them
on
a
hill
as
they
suspected
the
deceased of stealing the First Appellant's vehicle whilst parked
outside Chamberlains
Store
in Watloo, Pretoria.
[9]
In
sentencing the First Appellant, the trial court found that the three
deceased were killed in a cold and calculated manner; a
grossly
barbaric manner that does not belong in a civilised society grounded
in
the
rule of law. The trial court also found that the Appellants hunted
down the deceased thereby establishing
premeditation.
The trial court
also
found
that
the
murder
was
premeditated
[10]
For
purposes of mitigation of sentence, the following personal
circumstances of the First Appellant were placed on record by his
legal representative:
-
First Appellant was […]years old at the time of imposition of
sentence;
-
He was unemployed, but earned an income doing casual work;
-
He is married;
-
He has 5 children born between 1994 and 2000;
-
The family relied on social grants for the younger children;
-
He was a first offender;
-
He had no history of violent behaviour;
-
The older 3 children no longer receive social grants and are
unmarried;
-
His parents passed away when he was very young;
-
He did not attend school.
[11]
The only mitigating factors placed before the trial court were his
personal circumstances,
his age and the fact that he had no previous
convictions.
[12]
The legal representative of the First Appellant did not argue any
substantial and compelling
circumstances present which would justify
a deviataion from the prescribed minimum sentences. His argument
instead was that the
trial court ought to impose the prescribed
minimum sentence in terms of section 51(2) of Act 105 of 1997, being
15 years imprisonment.
The trial court found no substantial and
compelling circumstances; therefore, there was no justification to
deviate from the prescribed
minimum sentences to impose a
lesser-sentence.
[13]
Counsel for the Respondent on the other hand submitted that the First
Appellant was part
of a group, which formed a premeditated action,
that there were no substantial and compelling circumstances to
deviate from the
prescribed sentence, nor were any argued during the
sentencing process. Therefore, the Respondent argues that in the
absence of
any misdirection on the part of the trial court, that the
appeal court must not interfere with the sentences imposed by the
court
a quo.
[14]
Section 51(2) of Act 105 of 1997 on which the First Appellant was
convicted, provides as follows:
“
(2)
Notwithstanding any other law, but subject to subsections (3) and
(6),
a
regional court of
a
High Court shall
-
(i)
If it has convicted
a
person
of
an
offence
referred
to in
Part
II
of
Schedule 2 sentence the
person, in the case of
-
(i)
A first offender, to imprisonment for
a
period not less than
15 years
...
Provided
that the maximum sentence that
a
regional court may impose in
terms
of this subsection shall not be more than five
years longer than the minimum sentence that it may impose in terms of
this subsection."
[15]
It is well established in our law that
sentencing is within the discretion of the sentencing court.
The
appeal court would normally not interfere with such discretion unless
the discretion is found to have been improperly exercised.
Therefore,
such inquiry is not on whether the sentence was right or wrong but
whether the discretion was exercised properly and
judicially”.
[3]
[16]
Section 51(2) of Act 105 of 1997 provides for a prescribed minimum
sentence of 15 years imprisonment
for a first offender accused of
murder. In addition, section 51(3) of Act 105 of 1997 provides that
the trial court must impose
a sentence that is less than the
prescribed minimum sentence were the court to find substantial and
compelling circumstances justifying
that a lesser sentence
be
imposed
[17]
In
respect of the First Appellant, no substantial and compelling
circumstances were placed before the court and the trial court
on its
own could not establish any substantial and compelling circumstances.
Only his personal circumstances as indicated in paragraph
10 above,
were placed before the trial
court.
[18]
On
behalf of the First Appellant, it was submitted that the trial court
did not properly consider the cumulative effect of the imposed
sentences, taking into account the First Appellant's personal
circumstances. Counsel for the First Appellant relied on
S
v Mahlatsi
[4]
,
where the court held that the effective sentences under section 51(1)
or (2) of the Criminal Law Amendment Act should not exceed
life
imprisonment:
“
The
appellant
was
convicted
in
the
high
court
on
three
counts
of armed robbery and one count of kidnapping arising out of
a
series
of armed robberies in which
the
appellant, together with
a
number
of associates, set out on
a
spree
of robberies
and
car hijackings.
He
was sentenced
to
the minimum
sentence
of
15 years’ imprisonment on each of the robbery counts and five
years’ imprisonment on the count of kidnapping. None
of the
sentences were ordered
to
run concurrently
-
the
effective sentence therefore being 50 years’ imprisonment.”
[5]
The
court held as follows:
“
that
the only attack against the sentence imposed on the appellant that
had, at
least,
some merit was that the cumulative effect thereof could arguably be
perceived to be too heavy. The effective gaol term of
50 years’
imprisonment was an exceptionally long time by anyone's standard, ad
this raised the question of the maximum term
of imprisonment
that
should be imposed if life imprisonment were not imposed, or where
a
convicted
person had not been declared
a
habitual
criminal or
a
dangerous
criminal in terms of
ss 286
,
286A
and
2868
of the
Criminal Procedure
Act 51 of 1977
.”
[6]
[19]
Courts
have several avenues available to them to ensure that the cumulative
effect of sentences is mitigated, the most prevalent
being to order
that parts of
sentences
run concurrent.
[7]
[20]
It
is therefore the First Appellant’s submission that to curb the
cumulative effect
of
the sentences, the trial court should have made the kidnapping
charges run concurrent with the murder charges as well as the
assault
charge - resulting in
an
effective sentence of 48 years imprisonment. The Respondent on the
other hand submits that in the absence of any misdirection
on the
part of the trial court, this Honourable court must not interfere
with the trial court’s sentence and the appeal should
therefore
fail.
[21]
This
court is being asked to consider whether the cumulative effect of the
sentences was too severe, thereby resulting in a misdirection
that
would justify
interference.
In terms of the cumulative effect of the sentence, none of the
charges individually warranted a life imprisonment
sentence. However,
the effective sentence is equal to imposing a sentence which has the
effect of permanently removing the Appellant
from society. This
effective sentence is 52
years
imprisonment, even though the trial court noted it as 51 years of
imprisonment
[8]
and therefore
more onerous than a life sentence because for a person sentenced to
life imprisonment,
consideration
for
release on parole may be after 25 years imprisonment.
[9]
[22]
In
Zimila v S
[10]
, Shongwe
ADP at paragraph 10 states as follows:
“
The
regional court,
as
well
as
the court
a
quo,
considered all the purposes of punishment, the personal circumstances
of the appellant, the seriousness of the offences and
the interests
of society. There is no need to repeat same. The area of interference
will be in respect of making certain sentences
to run concurrently
with
count
1
and
the
sentences in
counts
13
and
15
to
run concurrently. The logic
is that when considering an appropriate sentence, the regional court
considered all the necessary factors,
therefore, since the offences
are similar in nature, it would serve the interests of justice to
mitigate the length of the sentence
by ordering some of the counts to
run concurrently.
”
[23]
As the offences that were committed were closely connected to each
other in time and space,
it is so that the learned magistrate should
have ordered the sentences to run concurrently. In granting the
sentences, the learned
magistrate neglected to do this. The appeal on
sentence must therefore succeed. Having regard to that, I therefore
“propose
what is stated in the order below to be an appropriate
effective sentence, taking into account the cumulative effect of the
individual
sentences.
[24]
The following order is made:
1.
The appeal is upheld.
2.
The order of the court a quo is set aside and replaced with the
following:
(a)
Count 1: Murder
- 15 years of imprisonment
(b)
Count 2: Kidnapping
- 1 year of imprisonment
(c)
Count 3: Murder
- 15 years of imprisonment
(d)
Count 4: Kidnapping
- 1 year of imprisonment
(e)
Count 5: Murder
- 15 years of imprisonment
(f)
Count 6: Kidnapping
- 1 year of imprisonment
(g)
Count 7: Assault with the intent to - 3
years of imprisonment
cause
grievous bodily harm
(h)
Count 8: Kidnapping
- 1 year of imprisonment
(i)
The sentences imposed in respect of Counts 2,4 and 6 are ordered to
run concurrently
with the sentences in Counts 1,3 and 5,
respectively, in terms of section 280(2) of the Criminal Procedure
Act 51 of 1977.
(j)
The sentence imposed in terms of Count 8 is
ordered to run concurrently with the sentence in count 7, in
terms of
section 280(2) of the Criminal Procedure Act 51 of 1977.
(k)
Effectively, the Appellant is sentenced to 48 years’
imprisonment.
(I)
The sentences are antedated to 14 July 2015 in terms of
section 282
of the
Criminal Procedure Act 51 of 1977
.
MA
LUKHAIMANE
ACTING
JUDGE OF THE HIGH COURT
I
agree
CJ
COLLIS
JUDGE
OF THE HIGH COURT
For
the First Appellant :
Adv. L.A van
Wyk
Instructed
by
: Legal Aid SA
For
the Respondent
:
Adv. L
Williams
Instructed
by
:
Director of
Public Prosecutions
Date
of Hearing
: 18 November
2020
Date
of Judgment
: 01 April
2021
[1]
Record p 691lines 21-
23
[2]
Record p 803 lines 17-19
[3]
S v Rabie 1975 (4) SA 855 (A)
[4]
2013 (2) SACR 625
(GNP)
[5]
2013 (2) SACR 625
(GNP)
at
par
4
[6]
2013 (2) SACR 625
(GNP)
at par 4
[7]
Section 280
(2) of the
Criminal Procedure Act 51 of 1977
[8]
Record p 803 lines 17-19
[9]
S
v
Mahlakaza
& Another 1997 (1)
1997 SACR 515
(SCA) at 521 G-1);
ands
73(6) of
the
Correctional
Services Act 111 of 1998
[10]
2017 ZASCA 55
(18 May 2017)