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[2020] ZALMPPHC 40
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Zulu v S (A12/2019) [2020] ZALMPPHC 40 (26 June 2020)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE: NO
(2)
OF INTEREST TO
OTHER JUDGES: NO
(3)
REVISED:
YES / NO
CASE
NO: A12/2019
In
the matter between:
ZULU,
DAVID BINO
APPELLANT
And
THE
STATE
RESPONDENT
J
U D G M E N T
Summary
:
Sentence
– section 280(2) of the Criminal Procedure Act 51 of 1977
(CPA) appeal against sentence –
court
may interfere with a sentence imposed by a lower court
–
material
misdirection by the sentencing court
–
may
interfere even in the absence of a material
misdirection
sentence imposed by
the trial court shocking, startling or disturbingly
inappropriate
–
discrection
exercised
injudiciously
order
of court a quo varied
MUDAU,
J:
[1]
This
appeal against sentence only comes before us with the leave of the
court
a
quo
.
The Regional Magistrate, Lulekani, convicted the appellant on 12
April 2016 in respect of five counts of robbery with aggravating
circumstances as defined in section 1 of the Criminal Procedure
Act 51 of 1977 (CPA), read with the provisions of
section 51
(2) of
the
Criminal Law Amendment Act 105 of 1997
as well as four counts of
attempted murder. Consequently, he was sentenced as follows:
a)
Count
one: robbery with aggravating circumstances: 15 years’
imprisonment
b)
Count
two: attempted murder: 10 years’ imprisonment.
c)
Count
three: attempted murder: 10 years’ imprisonment.
d)
Count
four: robbery with aggravating circumstances: 15 years’
imprisonment.
e)
Count
five: attempted murder: 10 years’ imprisonment.
f)
Count
six: robbery with aggravating circumstances: 15 years’
imprisonment.
g)
Count
seven: robbery with aggravating circumstances: 15 years’
imprisonment.
h)
Count
eight: robbery with aggravating circumstances: 15 years’
imprisonment.
i)
Count
nine: attempted murder: 10 years’ imprisonment.
[2]
In
terms of
section 280
(2) of the CPA the sentences in respect of
counts 1, 2 and 3 were ordered to run concurrently. In addition, the
sentences in respect
of counts 4 and 5 were also ordered to run
concurrently. The sentences in respect of counts 7, 8 and 9 were
specifically ordered
not to run concurrently. Effectively, the
appellant was sentenced to 75 years’ of imprisonment. Barring
parole, the appellant
would be released at approximately 107 years of
age.
[3]
The
trial arose from several separate incidents. Briefly stated, on 25
May 2012, the appellant and his co-accused targeted a supermarket
at
gunpoint and robbed the owner and shop assistants of goods and cash
worth thousands in rands. During the course of the business
robbery,
two of the victims, a female and male person, were shot on the
stomach and shoulder respectively. The incident laid the
basis for
counts 1 to 3.
[4]
About
a month later, on 27 May 2012, the appellant and his co-accused
targeted another supermarket. During the incident, several
properties
were stolen at gunpoint and the owner was shot on his left thigh. The
incident formed the basis for the charges in respect
of counts 4 and
5. Two days later, on 29 May 2012 the appellant, his co-accused and a
third person who turned state witness pursuant
to
section 204
of the
CPA robbed the complainant of his Toyota Hilux motor vehicle (count
6) at gunpoint. It was on this occasion that the appellant
was shot
but survived and evaded arrest, after a shootout with the police.
[5]
Subsequently,
on 2 June 2012 another business premises (a general dealership) was
targeted and the owners were robbed at gunpoint
of several properties
including R2 000.00 in cash (count 7). The appellant had supplied
some of the firearms that were used in
that incident and was
accordingly convicted together with his co-accused. Three days later,
on 5 June 2012 the appellant and his
co-accused with the help of the
section 204
witness targeted yet another business, this time an
eatery wherein the complainants were robbed at gunpoint (count 8). In
the process,
one of the victims was shot on her arm (count 9). Again,
the appellant had supplied some of the firearms that were used during
the course of the robbery and was on this basis convicted. His
co-accused and the
section 204
witness were arrested on their way to
return some of the firearms to the appellant at his hideout in
Nelspruit (Mbombela), Mpumalanga.
Thus ended the spate of robberies
in remote business premises in the villages involving the appellant
and his gang.
[6]
At
the time of his sentencing, the appellant was approximately 32 years
old since he was 28 years of age on his first appearance,
and an
unmarried father to a six years old daughter. He had an informal
business, a carwash as well as a tuck-shop. He remained
in custody
before he was convicted for these crimes. He admitted to a record of
previous convictions that included robbery with
aggravating
circumstances part of which was suspended on customary conditions for
a period of three years. The date of conviction
and sentence is not
apparent from the record. Later in 2008, he was released on parole
conditions that expired in 2010.
[7]
In
August 2009, the appellant was convicted by the Johannesburg
Magistrate Court on three counts of possession of firearms without
the required licences as well as ammunition. An effective sentence of
15 years’ imprisonment was later on appeal overturned
and
replaced by three years’ imprisonment suspended for five years
on customary conditions. On 17 October 2012, he was convicted
of
possession of a firearm without license in respect of which a fine of
R9 000.00 or three years’ imprisonment was imposed
by the
Nelspruit Magistrate Court. In all his appearances, the appellant
used various names. In sentencing the appellant, the learned
magistrate had regard to the personal circumstances of the appellant,
the seriousness of the crimes as well as the interests of
society.
[8]
There
is no disputing that the appellant deserved a period of
incarceration. The appellant contends that the cumulative effect of
75 years’ of imprisonment is shocking. The 75 years’
imprisonment is startling. Our law is settled on when an appellate
court may interfere with a sentence imposed by a lower
court. It can only do so when there was a material misdirection
by
the sentencing court.
[1]
However, it may interfere with the exercise by the sentencing court
of its discretion, even in the absence of a material misdirection,
when the disparity between the sentence imposed by the
trial court and that which the appellate court would have
imposed,
had it been the trial court, was 'so marked that it [could] properly
be described as shocking, startling or disturbingly
inappropriate'
[2]
.
Marais JA stated the following in
S
v Sadler
[3]
when
dealing with the distinction that exists between a non-custodial and
a custodial sentence:
“
However,
even in the latter class of case, it is important to emphasise that
for interference to be justified, it is not enough
to conclude that
one’s own choice of penalty would have been an appropriate
penalty. Something more is required;
one must conclude that one’s
own choice of penalty is the appropriate penalty and that
the penalty chosen by the
trial court is not. Sentencing
appropriately is one of the more difficult tasks which faces courts
and it is not surprising that
honest differences of opinion will
frequently exist. However, the hierarchical structure of our courts
is such that where such
differences exist it is the view of the
appellate court which must prevail”.
[9]
The
cumulative effect of sentences must always be borne in mind and
concurrently served sentences may prevent an accused from undergoing
a severe and unjustified long effective term of imprisonment
[4]
. Usually, an order that sentences run concurrently is called for
where the evidence shows that the relevant offences are 'inextricably
linked in terms of the locality, time, protagonists and, importantly,
the fact that they were committed with one common intent’
[5]
.
[10]
In
sentencing the appellant in this appeal, the learned magistrate
remarked that the appellant attempted to kill a court orderly
in his
presence inside the courtroom. To my mind, there lies a material
misdirection. In terms of section 35 (3) of the Constitution,
the
appellant like every other accused person, has a right to fair trial
in relation to those allegations. The Bill of Rights,
inter alia,
guarantees him to be informed of the charge with sufficient detail to
answer it; to a public trial before an ordinary
court; to be presumed
innocent and to adduce and challenge the evidence. Simply put, it was
irregular for the learned magistrate
to factor in during the
sentencing process, an incident in respect of which the appellant had
not been tried albeit witnessed by
the learned magistrate in
accordance with the basic notions of justice to justify the sentences
imposed.
[11]
In
S
v Zondo
[6]
the
Supreme Court of Appeal’s interference was called for because
the court
a
quo
had
allowed its sentence of 14 years’ imprisonment to run
consecutively with a sentence of 25 years’ imprisonment
that
the accused was already serving. Given all the circumstances, this
induced a 'sense of shock’ (at [8]) because it left
the
39-year-old accused with a cumulative effective sentence of 39 years’
imprisonment (at [7]), which meant that, upon completion
of the
period, the accused would have been 76 years old (at [8]). In
S
v Muller & Another
[7]
it
was held that '[a]n effective sentence of 30 years’
imprisonment is an extremely severe punishment that should
be
reserved for particularly heinous offences’. An effective
period of 50 years’ imprisonment was found unacceptable
in
S
v Mahlatsi
[8]
.
[12]
There
is no denying that the crimes committed were not only serious, but
also well-orchestrated by the appellant and his cohorts,
and involved
thousands of rands worth of property as well as gratuitous violence
that accompanied the shooting of innocent victims.
The victims in the
attempted murder charges suffered bodily injuries. The various
robberies were not only motivated by greed, but
were well planned.
Evidently, they were not the product of a sudden decision taken
impulsively.
[13]
Crimes
of armed robbery involving the use of firearms are unacceptably
prevalent in this country. To the extent that the learned
magistrate ordered that some of the sentences run concurrently, he
did not go far enough, but paid lip service to our common law
position. The attempted murder charges were committed in the course
of the robbery incidents .The discretion he had was therefore
exercised injudiciously. This court, on appeal, is completely
justified in interfering with the sentences imposed by the trial
court.
[14]
The
appeal succeeds to the extent that the sentences are varied by the
order that follows. In my view, the interests of justice
would
be served by ordering that 15 years’ of the sentences
imposed on each count 4 and 5 to run concurrently with the
sentence
in respect of count 1. Furthermore, 15 years’ of the sentences
imposed on each count 7 and 8 are to run concurrently.
Finally, 5
years of the sentence imposed in respect of count 9 is to run
concurrently with sentence imposed in count 8. The effect
of the
foregoing is that, effectively, the appellant is to serve 35 years’
imprisonment backdated to 12 April 2016, the date
of the original
sentence.
T P MUDAU
[Judge of the High Court]
I agree
G C MULLER
[Judge of the High Court]
Date of Hearing:
26 JUNE 2020
Date of Judgment:
26 JUNE 2020
APPEARANCES
For the Appellant:
Adv. L Mohlaka
Instructed by:
Legal Aid South Africa
For the Respondent:
Adv. J J Kotze
Instructed by:
DPP –
Polokwane
[1]
S v
Motloung
2016 (2) SACR 243
(SCA) at para 6
[2]
S v
Sadler
2000
(1) SACR (SCA) at para 9
[3]
S
v Sadler
above at para 10; see also
S
v
Motloung
note 1 above at para 8
[4]
S
v Whitehead
1970
(4) SA 424
(A)
438F–440;
S
v Young
1977
(1) SA 602
(A)
;
R
v Abdullah
1956
(2) SA 295 (A)
299-300
[5]
See
S
v Mokela
2012
(1) SACR 431 (SCA)
at 11
[6]
[2013]
ZASCA 51
(unreported, SCA case no 627/12, 28 March 2013; 2013 JDR
0653 (SCA))
[7]
2012
(2) SACR 545 (SCA)
at para10
[8]
2013
(2) SACR 625 (GNP)