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[2018] ZAGPPHC 713
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Maziya v S (A420/16) [2018] ZAGPPHC 713 (6 March 2018)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE NO: A420/16
6/3/2018
In
the matter between:
MAZIYA
BONGAN
I
GEORGE
and
THE
STATE
JUDGMENT
MTATI
AJ:
Introduction
[1]
The Appellant in this matter applied for
leave to appeal against both conviction and sentence which was
subsequently dismissed on
2 February 2015. Appellant directed a
Petition to the Judge President, where after leave to appeal against
his convictions was
dismissed but granted against sentences.
Background
[2]
The Appellant was convicted in the
Gauteng Regional Court held at Benoni on the following charges:
(a)
Count
1: Housebreaking with intent to steal and theft which was committed
on 16 January 2013;
(b)
Count
2: Housebreaking with intent to steal and theft which was committed
on 20 May 2013;
(c)
Count
3: Housebreaking with intent to steal and theft which was committed
on 18 June 2013;
(d)
Count
4: Theft of a motor vehicle which was committed on 16 July 2014;
(e)
Count
5: Housebreaking with intent to steal and theft which was committed
on 20 August 2013;
(f)
Count
6: Housebreaking with intent to steal and theft committed on 3
September 2013; and,
(g)
Count
7: Housebreaking with intent to steal and theft committed on 10
September 2013.
[3]
All the offences proffered against the
Appellant, except count
4,
were
committed at Etwatwa, within the Regional Division of Gauteng. Count
4
relating
to the theft of a motor vehicle was committed at Witbank but
Appellant was arrested at Etwatwa for this offence.
[4]
The Appellant was sentenced to 5 years
imprisonment for each offence on counts 1 to 3 and an order made that
these sentences run
concurrently. He received a sentence of 10 years
imprisonment on count 4. On counts 5 to 7, he was sentenced to 8
years imprisonment
for each of the counts and an order made that
these sentences run concurrently. The Regional Magistrate further
ordered that a
period of 7 years on each of the counts in 5 to 7 be
served concurrently with the sentence of 1O years imprisonment on
count 4.
Accordingly, Appellant was to serve a period of 18 years
imprisonment.
Issues
[5]
The main issue to be decided is whether
the court a
quo
erred
in differentiating between the effective sentences in respect of
counts 1 to 3 and counts 5 to 7 which was argued on behalf
of
Appellant to be shockingly harsh.
[6]
The other issue is whether, as argued on
behalf of Appellant, the sentence of 10 years imprisonment on the
theft of a motor vehicle
was equally shockingly harsh.
Differentiation
between the sentences in count 1 to 3 and count
5
to
7
[7]
The Court struggled to elicit an
explanation from the Respondent's Counsel on what was the motivation
for the different sentences
on counts 1 to 3 and 5 to 7. It was
instead conceded that the sentence of 5 years imprisonment on all
these charges and an order
for them to run concurrently was
appropriate except for charge 4.
[8]
In
S
v Rabie
[1]
Holmes JA held as follows with
regard to sentence:
"1. In every appeal
against sentence, whether imposed by
a
magistrate or
a
Judge , the Court
hearing the appeal-
(a)
should be guided by the principle
that punishment is 'pre-eminently
a
matter for the discretion of the
trial Court', and
(b)
should be careful not to erode
such discretion: hence the further principle that the sentence should
only be altered if the discretion
has not been Judicially and
properly exercised'.
2.
The
test under (b)
is
whether the
sentence
is
vitiated by
irregularity or misdirection or
is
disturbingly
inappropriate"
[9]
The
word
' misdirection'
was
remarked upon by Trollip JA in
S
v Pillay
[2]
-
when he said:
"Now the word
'misdirection' in the present context simply means an error committed
by the Court in determining or applying
the facts for
assessing
the appropriate
sentence.
As
the
essential enquiry in an appeal against sentence, however, is not
whether the sentence was right or wrong, but whether the Court
in
imposing it exercised its discretion properly and judicially, a mere
misdirection
is
not by itself
sufficient to entitle the Appeal Court to interfere with the
sentence; it must be of such
a
nature, degree or
seriousness that it shows, directly or inferentially, that the Court
did not exercise its discretion at all or
exercised it improperly or
unreasonably. Such
a
misdirection is
usually and conveniently termed one that vitiates the Court's
decision on sentence "
[10] The Court has
then to investigate whether or not the Magistrate may have
misdirected herself in sentencing the
Appellant to the extent
justifying this Court to interfere with her ruling. It must be stated
that the Magistrate is required to
properly motivate her findings in
order for the Court not to unnecessarily interfere with the
sentences
[3]
imposed.
[11]
In examining the record, the Magistrate
does not appear to have had any justification or advanced any reasons
why she differentiated
between the sentences of 5 and 8 years
imprisonment. She rather saw Appellant as a dishonest person that
requires removal from
society for a long time of incarceration.
[12]
In the case of
S
v Maake
[4]
Navsa JA and Tshiqi JA remarked
as follows on the need to provide reasons by presiding officers:
"[19] It is not only
a
salutary practice
, but obligatory for judicial officers to provide reasons to
substantiate conclusions .
..
[20] 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 which he did. Broader
considerations come into play. It is in the interest
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
administration of
justice"
[13]
It is trite that when considering
sentence the Court has to take cognizance of the seriousness of the
offence, the interest of the
accused as well as the interests of
society. Courts should be very weary of over-emphasizing public
opinion more than the interest
of society. In my view, the Magistrate
fell in the trap of looking at the public opinion too heavily rather
than the public interest
inclusive of the interests of the Appellant.
As remarked in the case of
S v
Makwan yane
[5]
:
"[P]ublic opinion
may
have some
relevance to the enquiry, but, in itself, it is no substitute for the
duty vested in the court; the court cannot allow
itself to be
diverted from its duty to act as an independent arbiter by making
choices on the basis that they will find favour
with the public."
It is my
view
that the
differentiation of sentences in respect of these charges should have
been motivated, to say the least, by the Regional
Magistrate.
[14]
In reading the record, one can discern
that the Magistrate did not want the sentences to be the same for
fear of same running concurrently.
The Court notes however that
whilst the Magistrate said a lot about concurrent sentences as if in
doubt about the validity thereof,
she applied the same principle in
all the convictions when sentencing.
[15]
No aggravating circumstances appear on
record from the side of the State, particularly in respect of the
convictions in counts 5
to 7, in order to differentiate these
convictions from the convictions in counts 1 to 3. No person was
injured in all the offences
committed. The Court is aware of inherent
dangers of breaking and stealing in people's houses whilst they are
asleep but this cannot,
in itself, be sufficient motivation for
different sentences on the charges of housebreaking.
[16]
The sentences of the trial Court are
not, in my view, necessarily shockingly inappropriate but the lack of
explanation or justification
of the differential sentences for
similar offences cannot be left unchallenged. Whilst sentencing is
within the purview of the
trial court
[6]
, presiding officers should be discouraged to arbitrarily and without
justification, impose sentences that are dissimilar for the
same
offences.
[17]
This Court has a discretion to remit
this matter to the trial Court for that Court to apply its mind and
substantiate its reasons
for the different sentences. In my view,
this will be an unnecessary administrative burden where, such as in
this case, the State
made a concession that there is no justifiable
reason to deviate from other sentences similar to charges in counts 1
to 3. In light
of all the above and comparative case law, the
sentences in counts 7 and 8 should therefore be interfered with.
Is the sentence of 10 years
imprisonment appropriate for the theft of
a
motor vehicle?
[18]
My view is that as regards the sentence in charge 4 there is no
misdirection by the trial court
in imposing the sentence of 10 years
imprisonment. When imposing sentence, the trial court took into
account all the factors traditionally
to be considered when meting
out sentence, that is, the nature and gravity of the offence, the
personal circumstances of the offender
and the interest of society.
The trial court also took into account that, as far back as 1995,
sentences imposed for motor vehicle
theft were already in the region
of 5 years imprisonment.
[19]
The submission, in the current matter,
is that the trial court ought to have considered the following
factors in mitigation of sentence:
that the appellant was a first
offender, the theft of the motor vehicle was committed almost 1O
months after the commission of
the other offences he is convicted of;
the motor vehicle was recovered with minor damages amounting to R3
000 to R4 000. In addition,
the submission is that, on the basis of
comparative case law, the trial court failed to consider that
sentences imposed are today
different from 1995. We were referred to
the judgments in
S v Gerbers
[7]
and
S v Nxopo
[8]
providing guidelines as to sentences imposed recently by our courts.
[20]
The question, therefore, is whether the
sentence of 10 years imprisonment imposed for motor vehicle theft is
shockingly harsh as
argued on behalf of the appellant. The factors
raised on behalf of the appellant in mitigation of sentence are
overshadowed by
the nature of the offence in that the offence was
committed as part of other numerous offences. The argument that this
offence
should be taken in isolation from the other offences
committed does not carry weight. The appellant was on a crime spree.
The fact
that he committed this offence 1O months after the other
offences is no indication that he was about to stop with his criminal
activities. More than anything else, it is an indication that he was
continuing and rules out the possibility of rehabilitation.
[21]
It is trite that each case stands
against the setting of its own facts and circumstances. The
comparative case law referred to by
the appellant's counsel does not
assist the appellant's case at all. The sentences imposed in those
judgments are only guidelines
and are not binding on this Court.
[22]
In the circumstances I suggest the
following order:
HEARD ON 29 JANUARY 2018
JUDGMENT DATE
FOR
THE APPELLANT: ADV M BOTHA
INSTRUCTED
BY: LEGAL AID SOUTH AFRICA
FOR THE RESPONDENT: ADV M.J.
NETHONONDA
INSTRUCTED BY: DIRECTOR OF PUBLIC
PROSECUTIONS
Order
[22]
It
is ordered that:
(a)
The Appeal against sentence is
partially upheld;
(b)
The Magistrate's sentence is
altered to read as follows:
1.
The
Appellant is sentenced to a period of 5 years imprisonment on each of
counts 1 to 3 and counts 5 to 7;
2.
The
sentences in counts 1 to 3 as well as counts 5 to 7 are to run
concurrently.
3.
The
sentence of 10 years imprisonment in count 4 is confirmed;
4.
The
sentence is antedated to 10 November 2014.
5.
The
accused is unfit to possess a firearm in terms of
section 103
of the
Firearms Control Act 60 of 2000
.
MTATI AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I
agree and it is so ordered.
KUBUSHI J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
[1]
1975 (4) SA 855(A) at 857
[2]
1977 (4) SA 531
at 535
[3]
S v Maake 2011 (1) SACR 263 (SCA)
[4]
Ibid
[5]
1994 (3)
[6]
S v Toms; S v Bruce
1990 (20 SA 802
(A) at 806H-I
[7]
2006 (1) SACR 618 (SCA)
[8]
2012 (1) SACR 13
(EGC)