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[2020] ZALMPPHC 59
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Mehlape v S (AA08/2019) [2020] ZALMPPHC 59 (17 June 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
PROVINCIAL DIVISION, POLOKWANE)
CASE NO:
AA08/2019
In
the matter between:
LEVY
MEHLAPE
: APPELLANT
And
THE
STATE
: RESPONDENT
JUDGMENT
SEMENYA
J:
[1]
The appellant and his co-accused were convicted on murder, robbery
with aggravating circumstances and on unlawful possession
of a
firearm. The appellant was sentenced in terms of section 286A read
with section 286B (1) (a) and (b) of the Criminal Procedure
Act 51 of
1977 (the Act). In addition to declaring the appellant a dangerous
criminal as envisaged in section 286A, the appellant
was sentenced
for an indefinite period of imprisonment. The trial court further
directed that the appellant is to be brought to
court on the 13
October 2034,
i.e.
after the expiration of a period of 35
years, for the purposes of reconsideration of the said sentence.
Ledwaba DJP granted leave
to appeal against sentence only. Counsel
for the appellant has in any event conceded that the conviction
cannot be faulted.
[2]
Section 286A and 286B of the Act provides as follows:
“
286A
Declaration of certain persons as dangerous criminals
(1)
Subject to
the provisions of subsections (2), (3) and (4), a superior court or a
regional court which convicts a person of one or
more offences, may,
if it is satisfied that the said person represents a danger to the
physical or mental well-being of other persons
and that the community
should be protected against him, declare him a dangerous criminal.
(2)
(a) If it
appears to a court referred to in subsection (1) or if it is alleged
before such court that the accused is a dangerous
criminal, the court
may after conviction direct that the matter be enquired into and be
reported on in accordance with the provisions
of subsection (3).
286B
Imprisonment for indefinite period
(1) The court which
declares a person a dangerous criminal shall-
(a) sentence such person
to undergo imprisonment for an indefinite period; and (b) direct that
such person be brought before the
court on the expiration of a period
determined by it, which shall not exceed the jurisdiction of the
court.
(2) A person sentenced
under subsection (1) to undergo imprisonment for an indefinite period
shall, notwithstanding the provisions
of subsection (1) (b) but
subject to the provisions of subsection (3), within seven days after
the expiration of the period contemplated
in subsection (1) (b) be
brought before the court which sentenced him in order to enable such
court to reconsider the said sentence:
Provided that in the absence
of the judicial officer who sentenced the person any other judicial
officer of that court may, after
consideration of the evidence
recorded and in the presence of the person, make such order as the
judicial officer who is absent
could lawfully have made in the
proceedings in question if he had not been absent.”
[3]
The correct approach to be adopted by a court faced with an appeal
against sentence has been laid down as follows in
S v Malgas
2013(1) SACR 469 (SCA) at [12]
“…
A
court exercising appellant jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its
exercise of
that discretion an appellate Court is of course entitled to consider
the question of sentence afresh. In doing so,
it assesses sentence as
if it were a court of first instance and the sentence imposed by the
trial court has no relevance. As it
is said an appellate Court is at
large. However, even in the absence of material misdirection, an
appellate court may yet be justified
in interfering with the sentence
imposed by the trial court. It may do so when the disparity between
the sentence of the trial
court and the sentence which the appellate
Court would have imposed had it been the trial court is so marked
that it can properly
be described as ‘shocking’,
‘startling’ or ‘disturbingly inappropriate’.
It must be emphasised
that in the latter situation the appellate
court is not at large in the sense in which it is at large in the
former. In the latter
situation it may not substitute the sentence
which it thinks appropriate merely because it does not accord with
the sentence imposed
by the trial court or because it prefers it to
that sentence. It may do so only where the difference is so
substantial that it
attracts epithets of the kind I have mentioned.
No such limitation exits in the former situation.”
[4]
The procedure followed by the trial court in declaring the appellant
a dangerous criminal and the penal jurisdictional competency
of that
court to impose a sentence in terms of section 286A and B are not
challenged. The crux of the argument proffered on behalf
of the
appellant rests on the well-established principle laid down in
S v
Zinn
1969 (2) SA 537
(A) at 540G (Zinn) and S v Rabie
1975 (4) SA 855
(A) at 862G (Rabie)
. In Rabie Holmes J stated the following:
“
Punishment should fit the
crime as well as the criminal, be fair to society and be blended with
a measure of mercy according to
the circumstances.”
Counsel
for the appellant argued that the trial court failed to have regard
to the effect that the length of the indefinite period
of
imprisonment will have on the appellant. It was further contended
that the only conclusion one can arrived at is that the trial
court
allowed anger to cloud its mind and ignored the principle that
enjoins courts to blend sentence with a measure of mercy.
[5]
A brief summary of the facts that led to the conviction of the
appellant are that on the 22 August 1997, the appellant and his
erstwhile co-accused broke into and entered the house of 80 years old
deceased person who was living with his 78 years old wife
and his 93
years old blind sister. The two tied and assaulted the occupants of
the house. One of the female victims was also raped.
They left with
certain properties, including a firearm, motor vehicle, TV set, money
and watches. The deceased died of the injuries
he sustained as a
result of the assault. The appellant was, among others, linked to the
scene by his finger prints.
[6]
It is common cause that on the
15 May 1992
, the appellant was
convicted on one count of murder, two of housebreaking with intent to
steal, one of robbery, one of arson, two
of unlawful possession of a
firearm and two of unlawful possession of ammunition. He was
sentenced to imprisonment for life in
respect of the murder charge
and to a total of 38 years in respect of other counts. It is further
common cause that he had escaped
from lawful custody when the
offences in the present case were committed, five years after the
commencement of the sentence of
life imprisonment. He was in essence
a fugitive from justice.
[7]
The argument that the trial court disregarded the principle laid down
in Zinn and Rabie is without merit. The court had regard
to the
personal circumstances of the appellant. On the issue of the ages of
the appellant and his co-accused, the court regarded
the differences
in their ages and that of the victims and regarded that aspect as an
aggravating factor. The appellant was 42 years
old as at the date of
the commission of the offence. His co-accused was 34. In passing
sentence, the trial court took judicial
notice of the fact that the
perpetrators of the offences the appellant was convicted of, are in
the most, young people, while the
victims are mostly defenceless
elderly people who are staying alone on farms, away from other
members of the community. It is not
the appellant’s contention
that the court misdirected itself in regarding this fact as a matter
of general knowledge on which
it can take judicial notice.
[8]
It appears clearly from the record of the proceedings that the court
dealt with the need to maintain law and order and to protect
the
peace loving members of the community from infringement of their
rights and make them feel safe where ever they might be. The
trial
court’s finding that the appellant was a dangerous criminal
cannot be faulted. The court in so doing, took into consideration,
as
an aggravating factor, the fact that the appellant was sentenced to
life imprisonment plus 38 years’ imprisonment. He
escaped from
prison and shortly thereafter committed exactly the same type of
offences he was sentenced for. I am in agreement
with the trial
court’s conclusion that the appellant is a dangerous criminal
on this basis alone.
[9]
Counsel for the appellant argued that the court should have ordered
the sentence to run concurrently with the sentence of life
imprisonment that the appellant was serving in terms of the previous
conviction. In terms of section 280(2) of the Act, a person
who is
sentenced by a court to different sentences, be it in one trial or in
separate trials, shall serve such sentences consecutively
unless the
court orders concurrent running of such sentences. I am alive to the
dictum in
S v
Mashava
[2013] ZASCA 200
;
2014 (1) SACR 541
(SCA) at para 7
wherein the following was stated with regard to
section 276B(1)(b)-(fixing of a non-parole period) :
“
The provision is clear. Any
determinate sentence of incarceration, imposed in addition to life
imprisonment, is subsumed by the
latter. This is logical and
practical. A person has one life and a sentence of life imprisonment
is the ultimate penal provision.”
One
may be tempted, on the basis of Mashava, to find that the trial court
was supposed to have ordered the sentence in this case
to run
concurrently with the life imprisonment sentence that the accused was
already sentenced to. However, the facts of this case
are not that
simple. The appellant was supposed to have been in custody serving
the imprisonment for life sentence when he committed
the offences.
The life of the victim in this case could have been spared had he
remained in custody until he is released on parole.
One is inclined
to believe that he escaped from custody solely for the purpose of
continuing to commit further serious offences.
This is nothing but
sheer disdain of the rule of law. The court was correct in ordering
that the sentences should not run concurrently.
As in
Jimmale
[2016] ZACC 27
; 2016 (2) SACR691 (CC);
2016 (11) BCLR 1389
(CC) at
para 11
, exceptional circumstances which can be established by
investigation of salient facts, legal argument and sometimes further
evidence
may call for a consecutive running of a sentence. Although
Mashava and Jimmale dealt with a different section of the Act, I am
of the view that the sentiments expressed therein finds application
in this matter.
[10]
Counsel for the appellant’s contention that the court failed to
blend the sentence with a measure of mercy loses the
fact that the
court in Rabie went further and stated that the extension of mercy on
an accused person must depend on the circumstances
of the case. Mercy
is not there for the taking. It must be earned. The manner in which
the offences were committed is one of the
factors that will dictate
whether a particular person is a suitable candidate for this mercy.
The fact that the victims in this
case were old, frail and
defenceless, more in particular the 93 years old blind victim, and
the gruesome manner in which the offences
were committed, the fact
that the appellant escaped from prison, and the fact that a firearm
was stolen, an instrument which the
appellant clearly uses to
perpetuate his criminal activities, are factors which disqualifies
the appellant from the category of
people on whom mercy should be
extended.
[11]
As stated in Malgas above, this court is not supposed to approach
sentence as if it is the trial court, unless it finds that
the trial
court has misdirected itself, as by so doing, it will usurp the
discretion of that court. It is evident that the trial
court was
influenced by circumstances that prevailed as at the date of
sentence. In
S v Moswathupa
2012 (1) SACR 259
(SCA) at [9] and S v
Mgibelo
2013 (2) SCAR 559
(GSJ)
the courts took judicial notice
of the prevalence of the offences of housebreaking, murder attempted
murder and other offences
in the entire country in imposing sentence.
The court in this matter was justified in taking the prevalence of
the offences into
consideration. The offences of murder are still
prevalent in 2020, just as they were in 1992, if not worse.
[12]
Counsel for the appellant argued that the trial court disregarded the
element of rehabilitation. It is convenient to state
that the
appellant is now of mature age and that the period he has spent in
custody has rehabilitated him. However, this is not
how the appeal
court should approach sentencing, lest it will turn itself into an
armchair critic, who is wise after the event,
which is discouraged in
Malgas. The statement made by the psychiatrist who compiled the
pre-sentence report, to which the trial
court relied upon, in which
the following was stated speaks a volume:
“
there is no
feature of mental illness which would render him more dangerous than
this known record would already predict”.
The
court, based on this statement, found that the only interpretation
one can attach to it is that the appellant is a dangerous
criminal.
As already stated, the appellant is not appealing against this
declaration. I am of the view that a court will
be justified,
as the trial court has done, in finding that a dangerous criminal
deserves to be removed from the society for a long
period of time. I
find that there is no need for this court to interfere with the
sentence, in particular, with the period he should
serve before he
could be brought back to court for reconsideration of the sentence.
It is on this basis that I make the order:
[13]
The appeal is dismissed.
M.V SEMENYA
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION
E.M
MAKGOBA
JUDGE
PRESIDENT OF THE HIGH
COURT
LIMPOPO DIVISION
M.G
PHATUDI
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION
APPEARANCES
ATTORNEY
FOR THE APPELLANT
: LEGAL AID SOUTH AFRICA
COUNSEL
FOR THE APPELLANT
: MR. L MANZINI
ATTORNEY
FOR THE STATE
: DPP
COUNSEL
FOR THE RESPONDENT :
ADV. KOTZE
DATE
OF HEARING
: 08 MAY 2020
JUDGMENT
DELIVERED ON
: 17 JUNE
2
020