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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2019] ZAKZPHC 3
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Duma and Another v S (AR 742/17) [2019] ZAKZPHC 3 (1 February 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISIOIN,
PIETERMARITZBURG
CASE NO: AR 742/17
In the matter between:
LINDOKUHLE ZAMANI
DUMA
First
Appellant
NJABULO
CYPRIAN NXUMALO
Second
Appellant
and
THE
STATE
Respondent
Order
Having heard counsel and
after reading the papers, the following order is made:
(a) The appeal
succeeds in so far as it related to the cumulative effect of
sentence;
(b) The
decision of the court a quo is altered to read:
‘
(i)
In respect of count 2, the robbery charge, the accused are sentenced
to 20 years imprisonment.
(ii)
On count 3 that of attempted murder, the accused are sentenced to 15
years.
(iii)
Counts 4, 5 and 7 have been taken together for purposes of sentence
and the accused are
sentenced to a cumulative sentence of 10 years
Counts 2 and 3 are ordered to run
concurrently with the effective sentence being 30 years.’
(c)
The sentence is antedated to 6 January 2017.
JUDGMENT
MASIPA
J (JAPPIE JP AND NKOSI J concurring):
Introduction
[1]
On 6 January 2017, the
court a quo convicted the appellants of one count of robbery with
aggravating circumstances, count 2; and
4 counts of attempted murder
counts 3, 4, 5 and 7. They were on the same day sentenced to 20 years
for the robbery charge, 15 years
in respect of the attempted murder
charge in count 3 and counts 4, 5 and 7 were taken together for
purposes of sentence and they
were cumulatively sentenced to 10
years. Count 2 was ordered to run concurrently with the 10 years in
counts 4, 5 and 7 with the
effective term of imprisonment being 35
years. The appellants were granted leave to appeal only in respect of
sentence.
[2]
What gave rise to the appellants’ conviction and sentence
emanates from a robbery
which was effected at a pension pay point at
the Ncinci Community Hall in Mpumalanga in the Province of
KwaZulu-Natal. The accused
armed themselves with firearms for
purposes of carrying out the robbery and acquired a stolen vehicle.
On 14 June 2013, while the
pension pay out officials were paying out
the pension to the recipients who are elderly, the appellants
accosted the pension pay
out officials and the security officers at
gun point disarming the security officers from Fidelity Security of
their firearms.
The complainant in count 3 Mr D S Nzuza was shot and
seriously wounded during this interaction, hence the attempted murder
charge
on this count.
[3]
The appellants boarded their vehicles and fled the scene. The South
African Police
Service was alerted of the robbery and its members
converged to the scene and in pursuance of the appellants. The
appellants shot
at the police and a shootout ensued. This then
related to the attempted murder charges in counts 4, 5 and 7.
Judicial notice
can be taken of the fact that pension pay
points are ordinarily amassed with pensioners and those intending to
conduct business
with them.
[4]
Sentencing is a discretion of the trial court, see
S
v PB
2013 (2) SACR 533
(SCA) at par 19. It is trite that an appeal court
will not interfere with the decision of the court a quo unless it
finds that
on a conspectus of the evidence before the court a quo its
decision was clearly wrong or that in arriving at such decision, the
court a quo acted irregularly and misdirected itself in a material
respect. See In
S
v Pistorius
2014 (2) SACR 314
(SCA) para 30.
[5]
What was raised in the appellant’s heads of argument related to
the appropriateness
of sentence based on the purported failure by the
court a quo to inform the appellants of its intention to impose a
sentence in
excess of the prescribed minimum sentence? The second
point which was raised by Mr Pillay for the appellants was the
cumulative
effect of sentence. He argued in this regard that all the
sentences ought to have been made to run concurrently.
[6]
Mr Pillay conceded that the argument relating to the failure to
inform the appellants
of an intention to impose a sentence in excess
to the prescribed minimum was unmerited. The concession was correctly
made in view
of
the
court in
S
v Mthembu
2012 (1) SACR 517
(SCA) holding that the approach that the failure to
inform the defence that a sentence exceeding the minimum prescribed
sentences
provided for in S51 of the Criminal Law Amendment Act was
contemplated by the sentencing court constitutes a defect in the
proceedings
cannot be endorsed and that the failure by the sentencing
court to appraise the defence of this does not result in a failure of
justice vitiating the sentence. The circumstances of this case do
justify the sentences imposed by the court a quo. The conduct
of the
appellants was reprehensible and they clearly disregarded the value
of human life especially that of the elderly who deserve
to be care
for.
[7]
In
S v Maake
2011 (1) SACR 263
(SCA) at para 20 the court set
out the importance of a judicial officer providing reasons for
arriving at a particular sentence
and stated the following:
"When
a
matter is taken
on appeal,
a
court of appeal
has
a
similar
interest in knowing why
a
judicial officer
who heard the matter made the order that he did. Broader
considerations come into play. It is in the interests
of the open and
proper administration of justice that courts state publicly the
reasons for their decisions. A statement of reasons
gives some
assurance that the court gave due consideration to the matter and did
not act arbitrarily. This is important in the
maintenance of public
confidence in the administration of justice".
[8]
The judgment of the court a quo falls short of this since there are
no reasons provided
by the court a quo as to why it arrived at the
sentence which it did. What we are left with is to speculative. Of
course as was
conceded by Mr Pillay for the appellant, the gruesome
nature of the offences of which the appellants were convicted cannot
be denied
and warranted the sentences imposed.
[9]
It is our view that the court
a quo
arrived at an appropriate
sentence in respect of each of the three counts. Since there are no
reasons provided by the court a quo,
it is unclear as to how it
arrived at its decision that the sentence in count 2 should run
concurrently with that imposed in respect
of counts 4, 5 and 7. The
issue which this court should consider therefore relates to the
effective sentence of 35 years.
[10] In
my view, the court failed to take into account
the
inextricable link between counts 2 and 3 the fact that the offences
of which the accused were convicted are closely connected.
The
sentences in counts 2 and 3 ought to have been made to run
concurrently with each other. The subsequent counts being count
4, 5
and 7 were somewhat remote from the main scene to be made to run
concurrently with counts 2 and 3.
[11]
Having heard counsel and after reading the papers, the following
order is made:
(a)
The appeal succeeds in so far as it related to the cumulative
effect of sentence;
(b)
The decision of the court a quo is altered to read:
‘
(i)
In respect of count 2, the robbery charge, the accused are sentenced
to 20 years imprisonment.
(ii)
On count 3 that of attempted murder, the accused are sentenced to 15
years.
(iii)
Counts 4, 5 and 7 have been taken together for purposes of sentence
and the accused are
sentenced to a cumulative sentence of 10 years
Counts 2 and 3 are ordered to run
concurrently with the effective sentence being 30 years. ’
(c) The sentence is antedated to 6
January 2017.
MASIPA, J
JAPPIE, JP
I AGREE
NKOSI, J
I AGREE
APPEARANCES
:
For the Applicant:
Mr T P Pillay
Instructed by:
Justice
Centre, Durban.
For the Respondent:
Ms C
Kander
Instructed by:
Director of Public Prosecutions, Pietermaritzburg.
Matter
heard on:
28
January
2019.
Judgment
delivered:
1 February 2019.