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[2017] ZASCA 96
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Manyike v S (527/17) [2017] ZASCA 96 (15 June 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 527/17
In
the matter between:
JOSEPH
MANYIKE
APPLICANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Manyike
v S
(527/17)
[2017] ZASCA 96
(15 June 2017)
Coram:
Shongwe
AP
Heard:
In
Chambers
Delivered:
15
June 2017
Summary:
Application
in terms of
s 17(2)
(f)
of the
Superior Courts Act 10 of 2013
: powers of the President of the
SCA: in exceptional circumstances: to refer a decision of this court
on petition for reconsideration
and, if necessary, variation:
exceptional circumstances not found: application refused.
ORDER
On
appeal from:
Application
in terms of
section 17
(2) (f) of the
Superior Courts Act 10 of 2013
.
The
application is dismissed.
JUDGMENT
Shongwe
AP
[1]
On 23 October 2013, the applicant was arrested and charged with
housebreaking with intent to rob, murder and robbery with aggravating
circumstances as defined in s 1 of the Criminal Procedure Act 51 of
1977 (the CPA) read with the provisions of s 51(1) and (2)
of the
Criminal Law Amendment
Act
105 of 1997 (the CLAA). He subsequently pleaded guilty in terms of s
112(2) of the CPA, and was found guilty on his plea. On
31 October
2014 he was sentenced to 5 years’ imprisonment on the charge of
housebreaking with intent to rob; life imprisonment
on the charge of
murder; and 15 years’ imprisonment on the charge of robbery
with aggravating circumstances. However, the
sentences on the charges
of housebreaking and robbery with aggravating circumstances were
ordered to run concurrently with the
sentence of life imprisonment.
Effectively, he would have to serve life imprisonment.
[2]
His application for leave to appeal against sentence was unsuccessful
and so was his petition to the President of the Superior
Court of
Appeal (the SCA). He now brings this application in terms of s
17(2)
(f)
of the Superior Courts Act 10 of 2013 (the SC Act). He also
asks for condonation for the late filling of this application.
To
persuade the President of the SCA to refer the decision to this court
for consideration and, if necessary, variation, the appellant
must
demonstrate that exceptional circumstances exist.
[3]
What constitutes exceptional circumstances depends on the facts of
each case. (See
Avnit
v First Rand Bank Ltd
[2014] ZASCA 132
(23/9/14) para 4;
S
v Dlamini
;
S v
Dladla & others
;
S v
Joubert; S v Scheitikat
[1999]
ZACC 8
;
1999
(4) SA 623
(CC) paras 75-77). Thring J in
MV
Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas & another
2002
(6) SA 150
(C) at 156H remarked that:
‘
1. What
is ordinarily contemplated by the words “exceptional
circumstances' is something out of the ordinary
and of an
unusual nature; something which is accepted in the sense that
the general rule does not apply to it; something uncommon,
rare or
different . . . .”
2. To
be exceptional the circumstances concerned must arise out of, or be
incidental to, the particular case.
3. Whether
or not exceptional circumstances exist is not a decision which
depends upon the exercise of a judicial
discretion: their existence
or otherwise is a matter of fact which the Court must decide
accordingly.
4. Depending
on the context in which it is used, the word “exceptional”
has two shades of meaning:
the primary meaning is unusual or
different; the secondary meaning is markedly unusual or specially
different.
5. Where,
in a statute, it is directed that a fixed rule shall be departed from
only under exceptional circumstances,
effect will, generally
speaking, best be given to the intention of the Legislature by
applying a strict rather than a liberal meaning
to the phrase, and by
carefully examining any circumstances relied on as allegedly
being exceptional.’
In
a nutshell the context is essential in the process of considering
what constitutes exceptional circumstances.
[4]
The facts of this particular case are briefly that the appellant and
his fellow
socius
criminis
broke into the house of an elderly lady, 89 years of age, in the dead
of night. The appellant strangled and suffocated her while
demanding
money. An 80kg maize meal bag was placed on her chest to restrain
her, frail as she was. They ransacked the house and
took off with a
sum of money. She was left dead as the appellant
killed
her by strangulation
.
All this happened while her 6 year old grandson was watching. The
deceased was defenceless; there is no evidence that she resisted
the
attack. This was simply a callous and greedy act of criminality which
lacked justification.
[5]
The trial court, correctly so in my view, found no substantial and
compelling circumstances, hence the sentence of life imprisonment
on
the charge of murder and the 15 years’ imprisonment on the
charge of robbery with aggravating circumstances. The applicant
on
the other hand contended that the trial court failed to consider
antedating the sentence, however did not suggest a particular
date.
It is unclear as he was convicted on 29 October 2014 and sentenced
the following day, 30 October 2014. Antedating is therefore
irrelevant. He complained that he pleaded guilty but such plea was
not given sufficient consideration. He further pleaded for mercy,
especially on the charge of murder. The murder occurred during a
robbery, which falls under section 51 part 1of schedule 2 of the
CLAA. Life imprisonment is mandatory under the circumstances in
the absence of substantial and compelling circumstances.
[6]
The trial court was unable to find any reasonable prospects of
success for an appeal and so did the two judges of this court
who
considered the petition. After considering the merits of the case as
well as all the factors considered by the trial court
when imposing
an appropriate sentence, I am satisfied that no exceptional
circumstances exist to merit a further appeal and or
a variation of
the decision to refuse the appellant’s application for leave to
appeal.
[7]
The application must fail and I thus make the following order.
[8]
The application is dismissed.
_____________________
J
B Z Shongwe
Acting
President
Appearances:
For the
Appellant:
In Person
For the
Respondent:
No appearance