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
>>
2019
>>
[2019] ZAGPPHC 302
|
|
Mokgaka v S (A104-2018) [2019] ZAGPPHC 302 (18 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
1.
Reportable: No
2.
Of interest to other judges: No
CASE NO: A104/2018
18/7/2019
In the matter between:
PULE
MOKGAKA
Appellant
and
THE
STATE
Respondent
JUDGMENT
MAKHUVELE J
Introduction
[1]
This appeal, with leave of this court on
petition is against the sentence imposed on the appellant by Regional
Magistrate Mr Steyn
('the Magistrate') in the Regional Division of
Oberholzer where he was arraigned and convicted of two counts
relating to contraventions
of the Firearms Control Act, Act 60 of
2000 ("the Act'').
[2]
In Count 1, he was found guilty of
possession of a 9mm Parabellum calibre vector model 288 semi
automatic pistol in contravention
of the provisions of Section 3 of
the Act as he was not a holder of a licence, permit or authorisation
issued in terms of the Act.
In Count 2, he was found guilty of
contravention of the provisions of section 90 of the Act in that he
was found in possession
of 9mm live rounds of ammunition without
being the holder of a licence in respect of a firearm capable of
discharging that ammunition,
a permit to possess ammunition , a
dealers' licence, manufacturer's licence, import, export or
in-transit or transporter's permit
issued in terms of the Act or
otherwise authorized to do so.
[3]
The appellant had pleaded not guilty to
both charges and chose not to tender any explanation. The State led
the evidence of the
police officer that arrested him and also
submitted a ballistic report affidavit in terms of
section 212
of the
Criminal Procedure Act 51 of 1977
, as amended. The appellant
testified in his own defence and did not call witnesses. He was found
guilty as charged as I have indicated
above.
[4]
On 21 June 2017 the Magistrate sentenced
him to 5 and 3 years imprisonment on counts 1 and 2 respectively.
After indicating the
sentences on both counts, the Magistrate went on
to state that"
So the total is 8
years imprisonment".
[5]
The appellant was refused leave to
appeal. He petitioned the Judge President in terms of
Section 309(a)
of the
Criminal Procedure Act, 51 of 1977
. The petition to appeal the
conviction was refused. He was granted leave to appeal the sentence
only.
[6]
It appears from the transcript of the
record of proceedings that the appellant was legally represented
throughout the trial. It
is also evident that he had a fair trial in
that at the request of the Public Prosecutor and after charges were
put to him, the
Magistrate explained the effect of the various
statutory provisions in the charge sheet, specifically the prescribed
minimum sentencing
regime with regard to count 1.
Relevant background facts
leading to the conviction and sentence
[7]
On 28 August 2016 at about 20:00, three
police officers were on patrol duties and driving in a marked police
vehicle around Khutsong
in an area called Majimbos, Tshwane Section.
[8]
Constable Labethe, who was the driver,
testified that he saw three males and
that two of them were wearing 'Sotho clothes' and one
had a 'big lumber jacket'. They changed direction when they saw the
police and entered 'an indian shop'.
[9]
He drove faster as he had formed a
suspicion about their conduct. He stopped next to them. Two started
running, but he managed to
apprehend one, the appellant. He searched
him and found a 9 mm firearm on his waist belt and one magazine with
ten 'bullets'. The
firearm was not In a holster. The appellant also
had a black backpack referred to as 'a school bag'. He searched
the contents
and found a balaclava, a small torch used in mines, a
knife and a big 'cello tape'.
[10]
The other two men were also apprehended by his colleagues. They found
a 'revolver' in the possession
of one and nothing was found on the
third suspect.
[11]
The appellant's version that he was already inside the 'tuckshop '
and awaiting for his purchases
when the police came in and called the
two men who were also there and unknown to him was rejected.
[13]
The ballistic report confirmed that the
pistol was
'self-loading, but not
capable of discharging more than one shot with
a
single depression of the trigger'
and
that it
'was manufactured or designed
to discharge centre-fire ammunition'.
The
serial number of the pistol could not be determined.
Issues
for decision and submissions
[14]
The issues that this court is required
to decide are;
[14.1] whether the
individual sentences as well as the cumulative sentence of eight (8)
years imprisonment are harsh
and startingly inappropriate and
whether, taking into account the fact that the two offences were
committed under the same circumstances
and thus inextricably
intertwined, the Magistrate misdirected himself by not ordering that
the two sentences should run concurrently.
[15]
In response to the issue of harshness of
the individual sentences, counsel for the State argued that count 1
(possession of a semi
automatic firearm) attracts a minimum sentence
of 15 years and that the Magistrate has already exercised his
discretion and deviated
form imposing the prescribed sentence. It was
also submitted that the sentence of 3 years for unlawful possession
of ammunition
was not shockingly inappropriate and harsh because the
Magistrate took into account all relevant factors and cannot be said
to
have misdirected himself.
Factors taken into account
during sentencing
[16]
The Magistrate took into account the
fact that the appellant had no previous convictions , that he was 39
years old , unmarried
with two children aged 2 and 4 , that he had no
'school training' and was healthy.
[17]
With regard to count 1, he took into
account that the appellant had been in custody for a period of 10
months.
[18]
He also took into account the total
effect of the two sentences and in this regard, decided to
'reduce
each sentence to reduce the total effect of the two sentences'.
[19]
He also considered
the interest of society and specifically mentioned the prejudice on
the legal owners of firearms who must apply
for licences and undergo
expensive training.
The
law
[20]
It is trite that the appeal court can
only interfere with the discretion of the lower courts to impose
sentences only if :
[20.1] There was an irregularity
during the trial or sentencing of an accused person.
[20.2] The lower court misdirected
itself in respect of the imposition of the sentence.
[20.3] The sentence imposed by the
trial court could be described as disturbingly or shockingly
inappropriate. 1
[21]
The question is not whether the sentence
is right or wrong, but rather whether the lower court exercised its
discretion properly
and judicially.
[1]
[22]
The proper approach to sentencing under
circumstances where the provisions that created a mandatory minimum
sentencing regime ,
Section 51(3)(a)
of Act 105 of 1997 are
applicable was formulated by Marais JA in the leading case of
S
v Malgas {117/2000) [20011 ZASCA 30: [200113 All SA 220 (A) (19 March
2001)
[2]
.
[231 In Paragraph 25, Marais JA
summarized the proper approach by examining the provisions that
created the minimum sentencing regime
as well as the
specific
offences
referred to in Part 1 of Schedule 2. With regard to the latter, the
learned Judge stated that the court's discretion in
imposing sentence
has been limited, and not eliminated. The usual factors that a trial
court would take into account when sentencing
are still applicable,
such as proportionality of the sentence to the crime, balancing the
various competing interests, and the
nature of the offence.
Discussion
Ad sentence in count 1
[24]
The Magistrate took into account various
factors Indicated above and imposed a sentence of 5 years instead of
the prescribed minimum
15 years sentence in respect of count 1. He
imposed 5 years instead.
[25]
In the matter of
Asmal
v The State (20465/140) ]2015) ZASCA 122 (17 September 2015)
the appellant was found in possession of an automatic rifle, an AK 47
and was sentenced to the prescribed 15 years Imprisonment.
This was
reduced to eight years on appeal to the SCA and mainly on the basis
that it induced a sense of shock. The appellant was
charged with
murder of a herdsboy and during the investigations, his home was
raided by the police who found this firearm. It was
not linked to the
commission of the crime. It was not loaded. The appeal court held
that the combined effect of all his personal
circumstances together
with his personal circumstances amounted to substantial and
compelling circumstances justifying a deviation
from the minimum
sentence.
[26]
Comparatively, the 5 years imposed on
the appellant before us, who remained unremorseful is quite lenient .
Even looking at the
cases cited by the counsel for the appellant,
where sentences of 4 and 3 years were imposed, 5 years does not
appear to be
off
the
mark. In any event, there is no formula with regard to the sentence
that may be imposed after a trial court has decided to deviate
from
the minimum sentencing regime. All that the appeal court is enjoined
to do is to enquire as to whether such a sentence is
appropriate and
not harsh or induces a sense of shock.
Ad sentence in count 2
[27]
The Magistrate did not specifically
address count 2 but only stated that he needed to
'reduce
each sentence to reduce the total effect of the two sentences'.
There
is no prescribed minimum sentence in count 2, as such, it is not
clear what he meant by wanting to reduce this sentence.
[28]
In my view, the 3 years sentence imposed
in count 2 on its own is neither shockingly inappropriate nor harsh
when one takes into
account the circumstances under which the
ammunition was found. The ammunition was loaded in a semi·
automatic firearm which
was in the appellant's waist belt. He also
had a backpack that was loaded with a knife, torch and masking tape
(cello tape).The
appellant and the two other men attracted the
police's attention and ran away when confronted. These circumstances,
correctly considered
are different form a situation where a firearm
or ammunition would be found by chance, for instance in a house when
police conduct
a raid.
The cumulative effect or
concurrent running of the sentences
[29]
It is clear from the sentencing record
that the Magistrate was alive to the cumulative effect of the
sentences that he intended
to impose. However, he did not give an
order as to how they should run, whether the second one on expiration
of the first or concurrently.
Instead, the Magistrate chose to
'reduce'
the
sentences to counter the cumulative effect. The problem with
'reducing' the sentences as I have already indicated is that there
is
no prescribed minimum sentence in count 2.
[30]
Other than the obvious fact that count 2
has no prescribed minimum sentence, this method of reducing sentences
is clearly not in
accordance with the provisions of
Section 280(2)
of
the
Criminal Procedure Act 51 of 1977
, as amended.
The relevant parts read as
follows;
"
280 Cumulative or concurrent
sentences
(1)
When
a
person is at any trial convicted of
two or more offences or when
a
person under sentence or undergoing
sentence Is convicted of another offence, the court may sentence him
to such several punishments
for such
offences
or, as the case may be, to the punishment for such other offence, as
the court is competent to impose.
(2)
Such punishments, when consisting
of imprisonment, shall commence the one after the expiration, setting
aside or remission of the
other, in such order as the court may
direct, unless the court directs that such sentences of
imprisonment
shall run concurrently.
[31]
The Magistrate clearly did not apply his
mind to the provisions of this section because if he had, he should
have considered and
specifically made a ruling about whether or not
the sentences should run one after the other or concurrently and not
purport to
reduce the individual sentences under circumstances where
count 2 has no prescribed minimum sentence. Even if count 2 had a
prescribed
minimum sentence, and taking into account the fact that
the offences occurred under one act and similar circumstances, it
would
have been desirable to make a specific order as provided for in
Section 280(2)
of the
Criminal Procedure Act.
[32
]
During argument counsel for the appellant referred us to the matter
of S V Motshathupa
2012 (1) SACR 259
(SCA) where it was held
[3]
that a court must not lose sight of the fact that the aggregate
penalty must not be unduly severe when dealing with multiple
offences.
[33]
I do not think that the aggregate penalty is unduly severe, however,
and in view of the failure
to consider
Section 280(2)
, I am of the
view that the Magistrate misdirected himself and this entitles this
court to intervene.
[34]
Though the circumstances under which the offences were committed are
repulsive, the possession
of the ammunition is as correctly submitted
by the counsel for the appellant intertwined to the facts that gave
rise to the conviction
and sentence in count 1.
[35]
Consequently, the cumulative effect of the sentence Imposed in both
counts must be altered by
making an order in terms of
Section 280(2)
of the
Criminal Procedure Act to
make the sentences imposed to run
concurrently.
Order;
[36]
The appeal on the individual sentences imposed in count 1 and 2 is
dismissed.
[37]
The appeal succeeds in as far as the
cumulative effect of 8 years is concerned.
[38]
The order of the Magistrate is varied to
read as follows;
"
Count 1: 5 years imprisonment;
"
Count 2: 3 years imprisonment.
In terms of
Section 280(2)
of
the
Criminal Procedure Act, 51 of 1977
,
the sentence
imposed in respect of count 2 is ordered to run concurrently with the
sentence imposed in respect of count 1"
TAN
MAKHUVELE J
Judge
of the High Court
I
agree, and it is so ordered,
NN BAM AJ
Acting
Judge of the High Court
APPEARANCES:
Appellant:
Advocate JL Kgokane
Instructed
by Legal Aid South Africa
The
State: Advocate R Molokoane
On
behalf of the Office of the Director of Public Prosecututions,
Pretoria.
Date
heard: 20 May 2019
Judgment
delivered on: 18 July 2019
[1]
S v Pillav
1977 (4) SA 531
(A) at p 535 E-G
[2]
reported in the South African Criminal Law Reports as S V Malgas
2001 (1) SACR 469
(SCA)
[3]
Para. 8