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[2018] ZAFSHC 165
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Maluleka v S (A92/2018) [2018] ZAFSHC 165 (26 October 2018)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : A92/2018
In
the matter between:-
SEBUSISO
MALULEKA
Appellant
and
THE
STATE
Respondent
CORAM:
JORDAAN, J
et
MOLITSOANE, J
HEARD:
22 OCTOBER 2018
JUDGMENT
BY
MOLITSOANE, J
DELIVERED:
26 OCTOBER 2018
[1]
The appellant was convicted and sentenced in the Regional Court
sitting in Sasolburg on a charge of robbery with aggravating
circumstances, read with the provisions of s51(2) of the Criminal Law
Amendment Act 105 of 1997(the Act). He was sentenced to 15
(fifteen)
years imprisonment. This appeal on sentence is with leave of the
Regional Court.
[2]
Briefly the facts surrounding this case are as follows:
On
the 26
th
June 2009 the appellant and his former co accused, who is not before
us, went to the tuck shop of the complainant and robbed her
of money
in the amount of R1000 and cigarettes valued at R800. The former co-
accused of the appellant wielded a firearm while
the appellant
collected the money and the cigarettes. Having robbed the complainant
they left the scene. They were captured on
a video footage and the
appellant was arrested first and he led the police to his former co-
accused.
[3]
In a nutshell the grounds of appeal of the appellant may be
summarised as follows:
1.
That the appellant cooperated
with the police and he did not play a major role in the robbery;
2.
That he was a first offender
and had spent a year and 4 months awaiting trial.
3.
That he was remorseful of his
deed.
[4]
Me. Kruger for the appellant submitted on behalf of the appellant
that there were substantial and compelling circumstances which
taken
together cumulatively warranted a deviation from imposing a
prescribed minimum sentence of 15 years imprisonment. The following
personal circumstances of the appellant were placed on record: That
the accused was a first offender. He was married with one minor
child. He had been in custody for a year and 4 months awaiting trial.
Me. Kruger submitted that the fact that the value of the
stolen
amount was minimal was a factor to be taken into account. She
submitted that sentencing regime in the Act was reserved for
the most
serious offences.
[5]
On the other hand, Adv. Van der Merwe for the respondent submitted
that the appellant was convicted of a very serious offence.
He
submitted that the accused was convicted and sentenced in 2009 and
yet he still contested his conviction. This, the argument
goes,
illustrates that the accused is not remorseful of his conduct. He
submitted further that robberies of tuck shops were very
rife.
[6]
Punishment lies pre-eminently in the discretion of the trial court.
The court exercising appellate jurisdiction will not lightly
interfer
with the discretion of the trial court unless such a discretion is
vitiated by irregularity or is disturbingly inappropriate.
See
S
v Rabie
1975(2)
SA 855(A) at 857 D-F;
S
v Fhetani
2007 (2) SACR 590
(SCA) at para [5].
[7]
The appellant was charged with robbery with aggravating circumstances
read with the provisions of s51(2)(a) of Act 105 of 1997.
The
appellant was a first offender as alluded above. The court is obliged
to impose an imprisonment term of 15 years imprisonment
unless the
court finds that there are substantial and compelling circumstances
warranting the imposition of a lesser sentence.
The argument
that the Act is reserved for most serious offences loses sight of the
fact that certain prescribed minimum sentences
are ordained by the
legislature upon conviction in offences where section 51 of the Act
finds application. The offence for which
the accused has been charged
is such an offence. The court is obliged to impose the
prescribed minimum sentence unless if
it finds that substantial and
compelling circumstances exist which warrants it to depart from
imposing a prescribed minimum sentence.
The court cannot deviate from
imposing a prescribed minimum sentence for flimsy reasons.
[8]
The argument that the appellant did not play a leading role stands to
be rejected. It is difficult to reject the finding of
the trial court
that this offence was planned and premeditated. The robbers had
different roles to play which roles were predetermined.
The role of
the appellant was to collect money and the items to be stolen which
role he executed excellently. By way of analogy,
it would be absurd
to think that where robbers go and rob a store and other robbers go
inside the store and commit the robbery
while another is sitting in
the getaway car and drives the robbers away, the latter should be
seen as playing a minor role. The
appellant was indispensable for the
successful execution of this robbery and played an important role in
its ultimate success.
[9]
It was submitted in the Heads of Arguments that the appellant was
instrumental in the apprehension of his former co- accused
and it was
argued that this indicates remorse. In order to assess any remorseful
conduct on the part of the appellant one is also
obliged to have
regard to his conduct after the arrest. It is true that the accused
has no obligation whatsoever to assist the
state to prove its case
against him. The appellant brought this application about 8 years
after his conviction. On the 23rd of
March 2016 he brought an
application for leave to appeal his conviction and sentence. The
application was granted. He subsequently
filed a Notice of Appeal in
which he again contested his conviction. It appears, however, that in
2011 he wanted to bring an appeal
in the North Gauteng Division of
the High Court. I can only surmise that such an appeal was not
pursued in view of lack of
jurisdiction of the said court. In
the Notice of appeal of 2011 the appellant did not contest his
conviction. Before
us he also did not contest the conviction.
What, however, is clear that from 2016 the accused had always
contested his conviction.
It is clear that in this regard he has
shown lack of remorse. The evidence against him was overwhelming. He
was also captured on
a video footage. He wanted the court to believe
that he was coerced into committing this offence. This,
notwithstanding, he failed
to own up to his deeds. I am unable to
find that the appellant showed any remorse for his conduct.
[10]
The appellant spent 1 year and 4 months awaiting trial. The record is
unhelpful as to the reasons why the appellant spent this
time
awaiting trial. The time an accused person spent in custody
while awaiting finalisation of his trial is but one of the
factors to
consider in the imposition of sentence. It is my considered
view that it cannot be considered in isolation.
This robbery
was premeditated. Although no one was injured a firearm was used in
the commission of the offence.
[11]
Having regard to the triad of the personal circumstances of the
accused, the crime, the interest of society I am of the view
that
taking into account the appellant’s cumulative personal
circumstances they do not constitute substantial and compelling
circumstances warranting deviation from imposing the prescribed
sentence. I would propose the following sentence:
ORDERS
1.
The
appeal against the sentence is dismissed.
2.
An
order made in terms of
s103
(1) of the
Firearms Control Act 60 of
2000
is confirmed.
____________________
P.E.
MOLITSOANE, J
I
agree and it is so ordered.
______________
A.F
JORDAAN, J
On
behalf of appellant: Ms S Kruger
Instructed
by:
Legal
Aid, South Africa
Bloemfontein
On
behalf of the respondent: Adv. Van der Merwe
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN