About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2018
>>
[2018] ZAGPJHC 619
|
|
Hlatswayo v S (SS163/2017) [2018] ZAGPJHC 619 (1 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER : SS163/2017
In
the matter between:
GIGULETHU
HLATSHWAYO APPLICANT
and
THE
STATE
RESPONDENT
JUDGMENT
LEAVE TO APPEAL
DOSIO AJ:
INTRODUCTION
[1]
The Applicant was charged in the High Court, Gauteng Local Division,
Johannesburg with 5 counts. Count 1 was a charge of murder,
count 2
was a charge of attempted murder, count 3 was a charge of robbery
with aggravating circumstances, count 4 was a charge
of possession of
a semi-automatic firearm and count 5 was a charge of possession of
unlicensed ammunition.
[2]
The Applicant was legally represented throughout the proceedings.
[3]
The State and Applicant entered into a formal plea and sentence
agreement in terms of Section 105A of the Criminal Procedure
Act 51
of 1977 (Hereinafter referred to as The Act).
[4] On the 8
th
of February
2018 the Applicant was convicted and sentenced as follows:
1. Count 1:
Murder
25 Years imprisonment;
2. Count 2:
Attempted murder
7 years imprisonment;
3. Count 3:
Robbery
10 years imprisonment;
4. Count 4:
Unlawful possession of firearm
3 years imprisonment;
5. Count 5:
Unlawful possession ammunition
1 years imprisonment;
[5]
In terms of Section 280(2) of the Act the sentences on count 2 –
5 were ordered to run concurrently with the sentence
on count 1.
The effective sentence therefore is 25 years imprisonment.
[6]
The leave to appeal is in respect to sentence only.
[7] Condonation is granted for the
late filing of the leave to appeal.
AD
RIGHT TO APPEAL
[8] The Applicant is entitled to apply
for leave to appeal in terms of the provisions of section 316 of the
Act.
[9]
An Applicant who applies for leave to appeal must satisfy the court
that there is a reasonable prospect of success on appeal.
(see
S V
Ackerman en n’ ander
1973 (1) SA (A) 765 G-H.)
[10]
In the case of
Matshona v S
2008 (4) SA 69
SCA at paragraph 4,
the Supreme Court of Appeal stated that the test to determine whether
leave to appeal should be granted is
“simply whether there is a
reasonable prospect of success in the envisaged appeal”.
[11]
The conviction and sentence flow from a formal agreement between the
State and the Applicant in terms of Section 105A of the
Act.
[12]
Section 105A of The Act sets out clearly the steps that must be
followed in order for the plea and sentence agreement to be
valid.
Prior to the Applicant pleading on the day, this court also complied
with the provisions of section 105A (5) and (6) and
enquired from the
applicant if he confirmed the agreement and the admissions made,
furthermore, whether he admitted all the allegations
contained in the
charge to which he was pleading guilty and also whether he was
pleading guilty freely and voluntarily. The Applicant
confirmed he
understood the admissions made and that he was pleading guilty freely
and voluntarily. Prior to the Applicant pleading
this court also
apprised him of the minimum sentences of life imprisonment in respect
to count 1 and 15 years imprisonment in respect
to count 3. The
agreement in the present case complied with all of the requirements
as set out in section 105A.
[13]
In the case of
S v de Koker
2010 (2) SACR 196
(WCC) the
Honourable Breitenbach AJ in his judgement stated that there was no
clearer case of peremption “than one where
an accused duly
concludes a plea and a sentence agreement with the State in terms of
section 105A of the CPA, confirms the agreement
to the court before
which he is arraigned, asks the court to convict and sentence him in
accordance with the agreement, and is
thereupon duly convicted and
sentenced in accordance with the agreement. By following the process
created by s 105A of CPA, the
appellant settled the
lis
between the State and him once and for all”.
[14]
In the matter of
S v Armugga
and others
2005 (2) SACR
259
(N) the court was also faced with a leave to appeal imposed after
consideration of a plea bargain agreement. At page 264e the learned
Msimang J held “that it had always been contemplated that the
right of appeal in cases such as the present, would be a limited
one,
and that the appellants in those cases would be granted relief only
in exceptional circumstances”.
[15]
Notwithstanding the contents of the decided case of
S v De Koker
supra
, this court has still considered what the Applicant’s
grounds are for a reduction in sentence. His legal representative has
argued that the Applicant has assisted the police in tracing his
co-accused and played a vital role in their apprehension. In
addition, the Applicant testified in the trial against his
co-accused. According to the counsel for the State these are all
factors
that were already known at the time of concluding the formal
agreement, and were considered at the time of entering the formal
agreement. These factors were the reason why the State did not insist
on a sentence of mandatory life imprisonment on count 1. The
Applicant has also through his legal representative placed an
additional factor which was not known to the State at the time the
formal agreement was entered into and that is, that he assisted the
police to trace a third accused. Counsel for the State has
argued
that this aspect has not conclusively been established as yet.
Accordingly, the latter issue raised by the Applicant,
which was not
available at the time the agreement was entered into, does not amount
to an exceptional circumstance.
[16]
The offences which the Applicant pleaded guilty to are serious. The
sentences imposed on count 2-5 were ordered to run con-currently
with
the sentence imposed on count 1.
[17] After having heard the arguments
raised by the Applicant’s counsel and the State advocate, I do
not find that there is
a reasonable possibility that another court
will arrive at a different conclusion in regard to the conviction of
the Applicant
on count 1. Life imprisonment should have been imposed
on count 1, however, based on the formal agreement a term of 25 years
imprisonment
was imposed.
CONCLUSION
[18] In the absence of any exceptional
circumstances raised by the Applicant there is no reason why another
court will come to a
different conclusion regarding sentence and
accordingly the leave to appeal in regard to sentence is dismissed.
_______________________
D DOSIO
ACTING JUDGE OF THE HIGH COURT
Appearances
:
On behalf of the applicant: Mr
Nobangule
On
behalf of the Respondent: Adv Buitendag
Date Heard: 1 November 2018
Handed down Judgment: 1 November 2018