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[2019] ZAECMHC 3
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Sobhuye and Others v S (CA52/2018) [2019] ZAECMHC 3 (5 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
Case No. CA52/2018
(ex ECM 97/2007)
In
the matter between:
ZUZEKILE
SOBHUYE
1
st
Applicant
SUNLIGHT
VELETO
2
nd
Applicant
ERIC
MAGINI
3
rd
Applicant
And
THE
STATE
Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
JOLWANA
J
[1]
The three appellants were, among themselves, convicted of eight
counts related to a spate of cash in transit armed robberies.
These offences were committed in a period of about six months from
the end of 2005 in various locations in Lusikisiki and Port
St Johns.
[2]
In granting leave to appeal against the cumulative effect of the
sentences imposed to all the appellants the trial court also
granted
the third appellant leave to appeal against convictions in respect of
counts 7 and 8. Ms Crouse, appellants’
counsel conceded
that she was unable to argue that the state had not proven common
purpose beyond reasonable doubt in respect of
these counts.
[3]
In convicting the third appellant on counts 7 and 8 the trial court
made the following factual findings:
v
“Count 7
·
At a meeting held at the home of accused no.4 (now accused no.3) it
was
decided to purchase a stolen vehicle to be used during the armed
robbery near Swazini on 2 May 2006. Accused no.4 (now accused
no.3) was present at this meeting.
·
The vehicle was purchased and left at the home of accused no.4 (now
accused
no.3).
·
However, there is no evidence suggesting that accused no.4 (now
accused
no.3) was involved in the actual robbery. However, he
received R10 000.00 as his share of the robbery presumably for
storing the stolen vehicle which was used during the robbery.
Although
there is evidence of a prior agreement to which accused no.4 (now
accused no.3) was a party, it is our view that he also
fulfils the
second condition of the common purpose doctrine namely that he
actively associated himself with the conduct which resulted
in the
robbery. Again, for purposes of sentence his minor role will
play a role but for purposes of conviction on the common
purposes
doctrine he falls squarely within the definition of common purposes
on the basis of active association and prior agreement.
v
Count 8
·
If accused no.4 (now accused no.3) is convicted under count 7 if
follows that on the same
basis a conviction under count eight must
follow. Again the role that he played in count 8 will be
reflected in the sentence,
but is irrelevant for purposes of
conviction. As a result of his participation in two or more of
the robberies, it follows
that he must also be convicted in respect
of count 1.”
[4]
There is no basis for interfering with the above factual findings.
The appeal court can only interfere with the trial
court’s
factual findings with great caution and respectful hesitation.
This trite legal position on factual findings
of the trial court was
stated as follows in
S v Leve
2011 (1) SACR 87
(ECG):
“
8.
The fundamental rule to be applied by a court of appeal is that,
while the appellant is entitled to a rehearing, because otherwise
the
right of appeal becomes illusory, a court of appeal is not at liberty
to depart from the trial court’s findings of fact
and
credibility, unless they are vitiated by irregularity, or unless an
examination of the record of evidence reveals that those
findings are
patently wrong. The trial court’s findings of fact and
credibility are presumed to be correct, because
the trial court and
not the court of appeal, has had the advantage of seeing and hearing
the witnesses, and is in the best position
to determine where the
truth lies.”
[5]
Once the unassailability of the trial court’s factual findings
is established in that they are neither vitiated by irregularity
nor
are they patently wrong, it follows that the convictions on counts 7
and 8 were correctly made. In convicting the third
appellant on
the basis of the doctrine of common purpose, the learned Judge
correctly analysed and relied on the judgment he himself
wrote for
the full court in
Mzwempi v S
2011 (2) SACR 237
(ECM).
In that case this court held that:
“
[52]
The conditions in the first stage which trigger the principle of
imputation are either a prior agreement or an active association
in
the joint venture. Any one of those two conditions must
exist. On the fact of this case, a prior agreement
was
not proved. The question is therefore whether or not the
appellant actively associated himself with the aims of the attack
on
the Makhwaleni. The answer to this question depends on the
meaning and content which our Courts, and in particular the
Supreme
Court of Appeal, have given to the concept of ‘active
association’. Both
Safatsa
(supra) and
Mgedezi
(supra) deal with this issue. In neither of these two cases was
any reliance placed on a prior agreement. It is, with
respect,
important to bear this distinction in mind.
[53]
The second stage of the definition imputes conduct to an accused
which falls within the common design or purpose
(my
emphasis). Conduct which falls within the common design seems
to be any or all conduct in the execution of the common
design or
purpose. In the case of a prior agreement therefore, all the
parties thereto will be held liable for the act of
any one of their
members which either falls within the common design or is executed in
the course of the implementation of the
agreement (provided, however,
the other definitional requirements such as
dolus
are also
present.
[54]
It follows that, where a prior agreement is proved, the accused is
not required to be present at the scene where the crime
is committed,
and neither is he required to have actively participated in the
conduct which caused the crime. Provided that
the conduct
imputed to him falls within the common design or the execution of the
agreement, and that he had the necessary
mens rea
(either
direct or
dolus eventualis
), he may be held liable under the
common purpose rule.”
[6]
Therefore counsel’s reassessment of the appeal on convictions
on these counts and the subsequent decision not to pursue
it is
laudable and was correctly made. On the facts of this matter
and the legal position on common purpose, the third appellant’s
appeal on convictions for counts 7 and 8 would have, in any event,
been without merit.
[7]
What now remains to be considered is the three appellants’
appeal against the sentences imposed on them by the trial court.
The appellants were sentenced as follows:
v
“Accused no.1
·
In respect of
COUNTS 2, 3, 5, 6 and 7
you are sentenced to
SEVEN (7) YEARS IMPRISONMENT
in respect of each count.
These sentences are to run consecutively. It means that they do
not run at the same time,
but one after the other.
·
In respect of count 4 which is the attempted robbery, you are
sentenced
to
FIVE (5) YEARS IMPRISONMENT
and this sentence
will also run consecutively with the sentences under counts 2, 3, 5,
6 and 7.
·
In respect of
COUNT 1
you are sentenced to
FIVE (5) YEARS
IMPRISONMENT
which will run concurrently with the sentences
imposed under counts 2, 3, 4, 5, 6 and 7 which means that this period
of sentence
runs at the same time as those other sentences.
·
In respect of
COUNT 8
you are sentenced to
FIVE (5) YEARS
IMPRISONMENT
which is to run concurrently with the sentence under
count 7, which means it will run at the same time as the sentence
under count
7
Therefore
the
TOTAL PERIOD OF IMPRISONMENT IS FORTY (40) YEARS
.
v
Accused no.2
·
In respect of
COUNTS 2 and 4
you are sentenced to
FIVE (5)
YEARS IMPRISONMENT
, in respect of each count.
·
In respect of
COUNTS 3, 5 and 6
you are sentenced to
SEVEN
(7) YEARS IMPRISONMENT
in respect of
EACH COUNT
.
The
sentences in respect of counts 2, 3, 4, 5 and 6 are to run
consecutively, which means not at the same time.
·
In respect of
COUNT 1
you are sentenced to
FIVE (5) YEARS
IMPRISONMENT
which will run concurrently with the sentences under
counts 3, 5 and 6.
Therefore
you are sentenced to a
TOTAL PERIOD OF THIRTY ONE (31) YEARS
IMPRISONMENT
.
v
Accused no.4: (now accused no.3)
·
In respect of
COUNT 4
you are sentenced to
FIVE (5) YEARS
IMPRISONMENT
.
·
In respect of
COUNTS 5 and 6
you are sentenced to
SEVEN (7)
YEARS IMPRISONMENT
in respect of each count.
·
In respect of counts 7 and 8 you are sentenced to
FIVE (5) YEARS
IMPRISONMENT
in respect of EACH COUNT.
·
The sentences in respect of counts 4, 5, 6 and 7 are to run
consecutively,
which means one after the other.
·
The sentence in respect of count 8 is to run concurrently with the
sentence
under count 7, in other words, at the same time.
·
In respect of
COUNT 1
you are sentenced to
FIVE (5) YEARS
IMPRISONMENT
.
In
respect of the sentence under count 1, it will run concurrently with
the sentence imposed under counts 5, 6 and 7.
It
follows that you are sentenced to
IMPRISONMENT FOR A TOTAL NUMBER
OF TWENTY FOUR (24) YEARS.”
[8]
Before passing the above sentences the trial court observed that each
one of the robberies for which the appellants had been
convicted was
carefully planned and executed with military precision. The
weapons used were AK47’s, R1 rifles, shotguns
and a variety of
9mm handguns. In committing the offences they had no hesitation
in opening fire on old age pensioners and
other sickly people who
were queuing for social grants. These people were both
unsuspecting, defenceless innocent good people
from the communities
surrounding the pay points. In fact one elderly pensioner and a
security guard were wounded during the
attempted robbery.
[9]
The learned judge
a quo
further observed that with these kind
of serious and violent crimes escalating the society at large would
be gravely concerned.
Society’s expectation is that its
anxieties, fears and wishes must be reflected in the sentences
imposed so that such sentences
serve a deterrent purpose. The
court concluded that the circumstances of the case did, however,
justify a departure from
the Minimum Sentences Act to prevent an
unreasonable cumulative effect of the total period of imprisonment
and to take into account
the seven years pre-sentencing period which
the appellants had already served.
[10]
Save for the cumulative effect of the sentences due to the number of
crimes they were convicted of the court found that there
was nothing
out of the ordinary in regard to the personal circumstances of the
first appellant. With respect to second appellant
the court
found that there was nothing peculiar in his personal circumstances
even though he seemed genuinely remorseful, took
responsibility for
his actions and had a chance of rehabilitating himself in prison.
With regard to the third appellant the
court found that his personal
circumstances are not different from the other appellants.
[11]
In launching the appeal against sentence the appellants made the
following submissions in their heads of argument:
“
23.
It is trite that a court of appeal will only interfere with a
sentence if the sentencing court has failed to exercise its
discretion
reasonably and properly.
24.
It is submitted that the trial court erred in imposing shockingly
inappropriate sentences on each Appellant.
25.
The Trial Court should have given more consideration to the
cumulative effect of the imposed sentences.
26.
Furthermore, the Appellants:
26.1.
Were incarcerated for seven years awaiting trial prior to their
sentences;
26.2.
Are all first offenders, despite not being young anymore;
26.3.
The Third Appellant suffers from ill health.”
[12]
The state’s main contention for the dismissal of the appeal is
that in addition to the fact that the appellants were
convicted of
very serious offences for which minimum sentences are applicable the
trial court did take into account all the relevant
factors including
the cumulative effect of the sentences. The cumulative effect
of the sentences is the main basis on which
the appeal against
sentence is sought to be assailed.
[13]
Our principles on sentencing, when correctly applied, are such that
the finding that there are no substantial and compelling
circumstances does not necessarily result in the imposition of the
prescribed minimum sentences. The trial court still has
a
discretion to depart from the minimum sentences.
[14]
There is no better way of articulating this aspect of our sentencing
regime than referring to what Nugent JA said in
S v Vilakazi
2009 (1) SACR 552
at 560 in which the learned judge of appeal said:
“
[14]
It is only by approaching sentencing under the Act in the manner that
was laid down by this court in
S v Malgas
– which was
said by the Constitutional Court in
S v Dodo
to be
undoubtedly correct – that incongruous and
disproportionate sentences are capable of being avoided.
Indeed,
that was the basis upon which the Constitutional Court in
Dodo
found the Act to be not unconstitutional. For by
avoiding sentences that are so disproportionate a court necessarily
safeguards
against the risk – and in my view it is a real risk
– that sentences will be imposed in some cases that are so
disproportionate
as to be unconstitutional. In that case the
Constitutional Court said that the approach laid down in Malgas, and
in particular
its ‘determinative test’ for deciding
whether a prescribed sentence may be departed from,
makes
plain that the power of the court to impose a lesser sentence …
can be exercised well before the disproportionality
between the
mandated sentence and the nature of the offence becomes so great that
it can be typified as gross [and thus constitutionally
offensive].
That
‘determinative test’ for when the prescribed sentence may
be departed from was expressed as follows in
Malgas
and it
deserves to be emphasized:
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.”
[15]
I must mention that it was the trial court’s finding that the
appellants were indeed first offenders. First appellant
was 41
years old on the date of the sentence. Therefore he had
maintained a clean record for 41 years before this sentence.
Appellant no.2 was born in 1958 and therefore was 55 years old when
he was sentenced. Appellant no.3 was 47 years old which
means
that he had lived a clean life with no brushes with the law for 40
years. It is only fair to observe that they had
no brushes with
the law for a substantial period of their lives.
[16]
It is clear that the court a quo wrestled with the conundrum of the
seriousness of the crimes, the interests of the society
and the
personal circumstances of the appellants which it said were neither
substantial nor compelling but still having to depart
from the
prescribed sentences, “
to prevent an unreasonable cumulative
effect of the total period of imprisonment, and to take into account
the seven years which
the three accused had already served in
custody
”.
[17]
There is no basis for criticising the court
a quo
’s
approach on the facts of this matter as it is clear that it applied
its mind and sought to balance the crimes committed,
the interests of
society and the interests of the appellants. However, the
sentences do appear to be still cumulatively unreasonable
when the
total number of years that the appellants must each serve is taken
into consideration.
[18]
Even in violent crimes such as those for which the appellants were
convicted, the Supreme Court of Appeal has cautioned against
over-emphasizing the retributive and deterrent elements in sentencing
and thus unwittingly de-emphasizing rehabilitation.
In
Scott–Crossley v S
[2007] 127 SCA the court stated thus:
“
[34]
The natural indignation which the community must feel at the
appellant’s conduct warrants appropriate recognition in
the
sentence. Nevertheless that can hardly invite a sentence that
is out of proportion to the nature and gravity of the offence.
Against the public interest must be weighed the unblemished record of
the appellant, who, at the time of the commission of the
offence, was
a useful member of society upon whom some 100 people and their
families were economically dependent. To his
credit the
appellant has expressed contrition and remorse.
[35]
Plainly any sentence imposed must have deterrent and retributive
force. But of course one must not sacrifice an accused
person
on the altar of deterrence. Whilst deterrence and retribution
are legitimate elements of punishments, they are not
the only ones,
or for that matter, even the overriding ones. Against that must
be weighed the appellant’s prospect
of reformation, which
appear to be good. It is true that it is in the interests of
justice that crime should be punished.
However, punishment that
is excessive serves neither the interests of justice nor those of the
society.”
[19]
As the trial court itself observed, the appellants could easily have
killed many people. However, it is a fact that in
all five
armed robberies and the attempted robbery, not a single person died
even though the robberies were committed in places
crowded with the
elderly and sickly. It is also a fact that in all those five
armed robberies and one attempted robbery,
only two people were
injured.
[20]
Whilst there is nothing necessarily wrong with the sentences imposed,
the manner in which the court
a quo
determined that those
sentences are to be served has resulted in the unreasonable
cumulative effect which the court itself determined
should be
avoided, still remaining a concern. This clearly justifies an
interference with the sentences imposed in so far
as the manner in
which the sentences are to be served is concerned.
[21]
Therefore appellants’ appeal against sentence must succeed and
the sentence imposed by the trial court must be set aside.
[22]
Accordingly the following order will issue:
1.
The appeal against sentence succeeds.
2.
The sentence imposed by the trial court is set aside and substituted
with the following sentences:
First
appellant
2.1
In respect of count 1 the first appellant is sentenced to five (5)
years imprisonment.
2.2
In respect of counts 2, 3, 4, 5, 6 and 7 the first appellant is
sentenced to seven (7) years imprisonment in respect
of each count.
2.3
The sentences in respect of counts 2, 3 and 4 are to run
consecutively. The sentences in respect of counts
5, 6 and 7
are to run concurrently with the sentences in respect of counts 2, 3
and 4.
2.4
In respect of count 8 the first appellant is sentenced to five (5)
years imprisonment.
2.5
Therefore the total period of imprisonment is 31 years.
Second
appellant
3.1
In respect of count 1 the second appellant is sentenced to five years
imprisonment.
3.2
In respect of counts 2, 3, 4, 5 and 6 the second appellant is
sentenced to seven (7) years imprisonment in respect of each count.
3.3
The sentences in respect of counts 2 and 3 are to run consecutively.
The sentences in respect of counts 4, 5 and 6 are
to run concurrently
with the sentences in respect of counts 2 and 3.
3.4
The second appellant is therefore sentenced to a total period of 19
years imprisonment.
Third
Appellant
4.1
In respect of count 1 the third appellant is sentenced to five (5)
years imprisonment. 4.2 In respect of counts 4, 5 and 6 the
third
appellant is sentenced to seven years imprisonment in respect of each
count. The sentences in respect of counts 5 and 6 will
run
concurrently with the sentence in respect of count 4.
4.3
In respect of counts 7 and 8 the third appellant is sentenced to five
years imprisonment. The sentences in respect of
counts 7 and 8
will run concurrently with the sentence in respect of count 4.
4.4
Therefore the total period of imprisonment is 12 years.
5.
The sentences are to be antedated to the 28 March 2013 for all three
appellants.
_______________________
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
I
agree:
_________________________
T.
MALUSI
JUDGE
OF THE HIGH COURT
I
agree:
__________________________
M.
MNYATHELI
ACTING
JUDGE OF THE HIGH COURT
Appearances
Counsel
for the Appellant: E. CROUSE
Instructed
by: Legal Aid Board
PORT
ELIZABETH JUSTICE CENTRE
Counsel
for the Respondent: M.W. SIYO
Instructed
by: NPA
MTHATHA
Heard
on : 10 October 2018
Delivered
on : 05 February 2019