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[2020] ZALMPPHC 31
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Mathebula v S (A19/2018) [2020] ZALMPPHC 31 (15 May 2020)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NUMBER: A19/2018
15/5/2020
In
the matter between:
ABIA
MATHEBULA
APPELLANT
And
THE
STATE
RESPONDENT
JUDGEMENT
GAISA
AJ
INTRODUCTION
[1]
The
appellant appeared in the Limpopo Regional Division regional court,
wherein he stood trial on two counts.
[2]
The
first count was for unlawful possession of a firearm in contravention
of Section 3, read with Sections 1, 103, 117, 120(1)(a);
Section 121,
read with Schedule 4; and
Section 151
of the
Firearms Control Act, No
60 of 2000
, further read with
Section 250
of the
Criminal Procedure
Act, No 51 of 1977
and
Section 51(2)
of the
Criminal Law Amendment
Act of 1997
. An alternative count was for being in possession of a
defaced or altered firearm in contravention of
Section 41(f)(iv)
,
read with
Sections 2
,
17
,
19
,
20
,
103
,
117
,
120
(1)(a);
Section 121
,
read with Schedule 4; and
Section 151
of the
Firearms Control Act,
further
read with
Section 250
of the
Criminal Procedure Act, and
Section 51(2)
of the
Criminal Law Amendment Act.
>
[3]
The
second count proffered against the appellant was for being in
possession of ammunition in contravention of
Section 90
of the above
Firearms Control Act, read
with
Sections 1
,
103
,
117
,
120
(1)(a);
Section 121
, read with Schedule 4; and
Section 151
of the
Firearms
Control Act, further
read with
Section 250
of the
Criminal Procedure
Act and
Section 51(2)
of the
Criminal Law Amendment Act.
[4
]
At
the trial, the appellant was represented by Legal Aid South Africa.
[5]
The
appellant confirmed that he understood the charges levelled against
him by the prosecutor, as well as the explanation of
section 51(2)
of
the
Criminal Law Amendment Act provided
him by the court a
quo.
[6]
The
court a
quo
enquired
from the appellant's legal representative whether it was explained to
the appellant that the charge of possession meant
possession in his
immediate control, not necessarily mere physical possession. The
appellant's legal representative explained this
to him and confirmed
to the court that he had done so and that his client fully understood
the charge.
[7]
The
appellant pleaded not guilty to all the charges proffered against
him. He denied that he was found in possession of a firearm
at all,
or (alternatively) that he was found in possession of a defaced or
altered firearm. Similarly, the appellant denied that
he was found in
possession of ammunition as per the second charge.
[8]
The
state adduced the evidence of the following witnesses in support of
its allegations:
(a)
Samuel Fannie Chauke;
(b)
Patrick Maluzane; and
(c)
Bulani Nomsa Ngobeni.
[9]
In
his defence, the appellant adduced his own evidence, as well as that
of one Anna Mabuza.
[10] The
appellant was convicted on 26 September 2016 on both charges and
sentenced on 12 October 2016 to
fifteen years imprisonment.
[11]
The
appellant now appeals against the sentence.
BACKGROUND AND RELIEF
SOUGHT:
[12]
In terms of the appellant's notice, the
following are the grounds of appeal:
(a)
That an effective term of imprisonment
of fifteen years is strikingly inappropriate in that it is out of
proportion to the totality
of the accepted facts in mitigation;
(b)
That the court a
quo
erred in not imposing a lesser
sentence, considering the aforesaid mitigating factors, age, and
personal circumstances of the appellant;
and
(c)
That the Court a
quo
erred in over-emphasising the
seriousness and prevalence of the offence, and the retributive
element of sentencing.
[13]
In argument, counsel for the appellant
highlighted that: the court a
quo
only concerned itself with what
constituted substantial and compelling circumstances; it misdirected
itself in not calling for all
of the general or traditional
mitigating factors in determining the appropriate sentence; the court
a
quo
misdirected
itself by directing the defence attorney to address it on what could
be regarded as substantial and compelling circumstances;
the trial
attorney should also have applied to the trial court for an
opportunity to present to it all available traditional mitigating
factors; as a result of the misdirection, the court a
quo
sentenced · the appellant
without properly considering mitigating factors, resulting in him
being prejudiced by the prescribed
minimum sentence of fifteen years
imprisonment; and that the court a
quo
did not take into account the
purpose of the sentence.
FINDINGS OF THE COURT A QUO
IN RESPECT OF SENTENCE:
[14]
Before pronouncing its sentence, the
court a
quo
invited
the appellant's legal representative to
"address
the court on what factors should be taken as substantial and
compelling circumstances" .
In
essence, the court a
quo
wanted
to know from the appellant what the defence would
"want
the court to consider as substantial and compelling circumstances
taking into consideration that the offense was
committed while
Mr. Mathebula was on parole [while facing]
a
pending case of robbery".
[15]
It appears from the record that the
appellant has a previous conviction, which sentence was pronounced in
1999. On 27 August 2015,
when the appellant was found in possession
of the firearm and ammunition for which he was convicted on 26
September 2016, he was
on parole in respect of the previous
conviction, and he, at that time, had a pending case of robbery
against him.
[16]
The appellant's attorney placed before
the court a
quo
the
following as substantial and compelling reasons why the court a
quo
should deviate from the prescribed
fifteen-year sentence and impose a lesser sentence:
(a)
That the appellant is a family man with
three children;
(b)
That the appellant's wife, at the time
of his arrest, was unemployed; and
(c)
That the appellant was the sole
breadwinner in his household.
[17]
The court a
quo
was aware of, and correctly referred
to, the leading cases of the Supreme Court of Appeal ("the
SCA"), in
S v Malgas
2001 (1)
SACR 469
(SCA),
where the court held
that:
"If the sentencing court
on consideration of the circumstances of the particular case is
satisfied that they render the prescribed
sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice
would be done by imposing that
sentence, it is entitled to impose
a
lesser
sentence."
[1]
[18]
When the record of the proceedings is
considered, there is no suggestion that the personal circumstances of
the appellant were not
taken into account by the court a
quo.
The record supports the following
statement by the court a
quo:
"I have carefully applied
my mind to the submission from both the prosecution and the defence.
I have weight [sic] all the
factors one against the other in order to
determine whether substantial and
compelling
circumstances exist which justify the imposition of
a
lesser sentence
than the prescribed sentence.
I have also considered that Mr.
Mathebula has [a] previous conviction. Mr. Mathebula has previous
convictions of possession of unlicensed
firearm, committed or
convicted in 1999."
[19]
The court a
quo
further stated that:
"I have carefully applied
my mind to the submission that the court should find that the fact
that Mr. Mathebula is
a
family man
constitute substantial and compelling circumstances justifying the
imposition of
a
lesser sentence
than the mandatory sentence of 15 years imprisonment."
[20]
The court a
quo
then proceeded:
"
to
endorse [the] record that the court finds that there are no
substantial and compelling circumstances justifying the imposition
of
a
lesser sentence than
the mandatory sentence of imprisonment of not less than 15 years.
I will therefore proceed to
take into consideration to determine an appropriate sentence and when
determining an appropriate sentence
the court will take into
consideration the traditional aims and purpose of sentence, which are
deterrence, rehabilitation, prevention
and retribution.
The court will strive to
achieve
a
balance
between... the crime, the offender and the interests of the society.
Punishment must fit the
offender as well as the crime, be fair to the
society
and be blended with
a
measure of mercy,
mercy is the· hallmark of justice."
[21] In
dealing with the interests of society, the court a
quo
stated
that society demands that serious offences be severely punished - if
the court imposes lenient sentences in serious crimes,
the
administration of justice falls into disrepute. This in turn leads
society to lose trust in the criminal justice system and
take the law
into their own hands. The court a
quo
also considered that
society's interests are not served by a sentence which is out of
proportion to the seriousness of the crime.
[22] Being
persuaded by the appellant's legal representative, the court a
quo
"decided to treat Mr. Mathebula as
a
first offender '
and
sentenced him to fifteen years' imprisonment in respect of the first
count, and five years' imprisonment in respect of the second
count.
Ultimately, the court a
quo
exercised
mercy towards the appellant by treating him as a first-time offender,
when in fact he had a previous conviction and committed
the acts of
which he was convicted herein during the time he was on parole in
respect of the previous conviction.
CONCLUSION:
[23] In
S
v Matyityi (659/09)
[2010] ZASCA 127
(30 September 2020),
approximately nine years after
S v Malgas supra,
the SCA
noted that criminality is still on the rise, despite the imposition
of minimum sentences. It stressed the relevance of legislation
as
follows:
"Despite certain limited
successes there has been no real let-up in the crime pandemic that
engulfs our country. The situation
continues to be alarming. It
follows that, to borrow from Ma /gas, it still is 'no longer business
as
usual'.
And yet one notices all too frequently
a
willingness on
the part of sentencing courts to deviate from the minimum sentences
prescribed by the legislature for the flimsiest
of reasons
-
reasons ,
as
here, that do not
survive scrutiny. As Ma/gas makes plain courts have
a
duty, despite any
personal doubts about the efficacy of the policy or personal aversion
to it, to implement those sentences. Our
courts derive their power
from the Constitution and like other arms of state owe their fealty
to it. Our constitutional order can
hardly survive if courts fail to
properly patrol the boundaries of their own power by showing due
deference to the legitimate domains
of power of the other arms of
state. Here parliament has spoken. It has ordained minimum sentences
for certain specified offences.
Courts are obliged to impose those
sentences unless there are truly convincing reasons for departing
from them. Courts are not
free to subvert the will of the legislature
by resort to vague, ii/ defined concepts such as "relative
youthfulness"
or other equally vague and ill-founded hypotheses
that appear to fit the particular sentencing officer's personal
notion of fairness.
Predictable outcomes, not outcomes based on the
whim of an individual judicial officer, is foundational to the rule
of Jaw which
lies at the heart of our constitutional order.'
[2]
[24] It is
against the above background that the present appeal should be
considered.
[25] In
Booysen v S 2011
(1) SACR 448 (SCA),
[3]
the SCA,
regarding whether the personal circumstances of the accused were
taken into account by the trial court, stated that the
"personal
circumstances of the appellant cannot be viewed in isolation. They
have to be weighed against the aggravating circumstances
of the
offence".
[26]
The manner in which the court a
quo
handled the sentencing in this
matter can be compared to
Booysen v S
where the SCA stated that:
"[21] Not having found
substantial or compelling circumstances to be present, the trial
court found no justification to depart
from the prescribed minimum
sentence. Clearly there are none. To find otherwise would be to fall
into the trap of doing so for
"flimsy reasons" and
"speculative hypothesis favourable to the offender'' as was
cautioned against in Ma/gas. This
the trial judge did not do, and
consequently did not err in that regard. It follows that the appeal
must fail."
[27]
In this matter too, the appeal must
fail.
[28]
In the result, the appeal is dismissed.
GAISA
AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
I
concur:
KGANYANGO
J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCE
COUNSEL
FOR APPELLANT : MR MOKGOTHO
INSTRUCTED
BY
:
LEGAL AID SOUTH AFRICA
COUNSEL
FOR RESPONDENT : ADV N.MATHABATHA
INSTRUCTED
BY
: DPP LIMPOPO POLOKWANE
DATE
OF HEARING
: 6
TH
DECEMBER 2019
DATE
OF JUDGMENT
: 15/5/2020
[1]
At para [25]
[2]
At para [23]
[3]
At para [11]