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[2018] ZANCHC 51
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Ntonga v S (JA78/10) [2018] ZANCHC 51 (17 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number: JA 78/10
Case No: CA& R
26/18
Heard
on: 06/08/2018
Delivered
on: 17/08/2018
In
the matter between:
PIET
NTONGA
APPELLANT
And
THE
STATE
RESPONDENT
Coram:
Tlaletsi JP et Mamosebo J
Summary:
Appeal against sentence – appellant convicted of stock theft -
sentenced to 6 years direct imprisonment – not
declaring the
appellant an habitual criminal- cumulative effect of sentence.
Whether interference with the sentence is warranted.
On
appeal- sentence confirmed.
JUDGMENT: APPEAL ON
SENTENCE
MAMOSEBO
J
[1]
This appeal by Mr Piet Ntonga, is limited to two grounds: the
cumulative effect of the sentences imposed and whether the failure
by
the regional court magistrate to order concurrent running of the new
sentence with the sentence that the accused is already
serving is a
misdirection that warrants interference.
[2]
The appellant’s application for leave to appeal against his
conviction and sentence was unsuccessful in the regional court.
He
filed a petition to this Court for leave to appeal and was only
granted leave to appeal against his sentence.
[3]
The appellant was convicted of stock theft of 8 sheep to the value of
R13 600.00 by the Magistrate in the district of Kakamas
and the
case was transferred to the regional court in terms of s 116(1)(b) of
the Criminal Procedure Act
[1]
(CPA) for sentencing. He was sentenced to 6 years imprisonment.
Counsel for the appellant, Adv Steynberg, correctly conceded the
appropriateness of the 6-year sentence, however, sought to convince
us that the failure by the regional court magistrate, Mr Viewe,
to
order the sentence to run concurrently with the 10 year sentence
which was imposed a few months prior, resulted in the sentence
being
shockingly harsh and inappropriate based on its cumulative effect. Mr
Steynberg further submitted that the failure by the
magistrate to
declare the appellant an habitual criminal also added to the harsh
and inappropriate sentence. The appellant is 50
years old and his
appeal should be upheld, urged counsel.
[4]
On the contrary, counsel for the Respondent, Adv Van Heerden, argued
that it is only if this Court were to find material misdirection,
which she submitted was absent, where interference would be
warranted. Counsel submitted further that the trial court had applied
its mind correctly and judiciously, having considered the appellant’s
personal circumstances, his catalogue of previous convictions
which
included a suspended sentence which was still in operation when the
appellant committed this offence. Counsel submitted that
the trial
court was correct in not ordering the sentences to run concurrently.
In as far as the declaration of the appellant as
a habitual criminal
is concerned, counsel argued that although it was not a requirement
to warn the accused before the declaration,
counsel conceded that it
is in the interests of justice to do so. In this instance, the
magistrate chose to warn the appellant.
Counsel
maintained that there was no misdirection by the trial court and
asked the Court to dismiss the appeal.
[5]
The principles when considering appeals against sentence and the
cumulative effect thereof are trite. Sentencing lies pre-eminently
within the discretion of the sentencing court. Absent any
misdirection or where the sentence is not vitiated by any
irregularity
or is not disturbingly inappropriate, the appeal courts
must be careful not to interfere with such discretion.
[2]
This
is the test that we follow to determine if there is any misdirection
or the sentence is disturbingly inappropriate. It is only
once those
are found, that we will be entitled to interfere with the sentence.
I
now turn to deal with the two aspects raised before us.
Cumulative
as opposed to concurrent sentence
[6]
To recap, Mr Steynberg argued on behalf of the appellant that the
trial court misdirected itself by failing to order that the
sentence
imposed must run concurrently with the sentence already being served.
[7]
Section 280 of the CPA stipulates:
“
(1)
When a person is at any trial convicted of two or more offences or
when a person under sentence or undergoing sentence is convicted
of
another offence, the court may sentence him to such several
punishment for such offences or, as the case may be, to the
punishment
for such other offence, as the court is competent to
impose.
(2)
Such punishments, when consisting of imprisonment, shall commence the
one after the other, in such order as the court may direct,
unless
the court directs that such sentences of imprisonment shall run
concurrently.”
[8]
The trial court was mindful that the appellant had commenced serving
an imprisonment term of 10 years for rape. It was alive
to the age of
the appellant and that he is a livestock farmer who did not steal out
of hunger or need but out of greed. Only four
of the eight stolen
sheep were recovered. The appellant had seven previous convictions of
which one was also of stock theft. He
is a father of three children
and also cares for his own father.
[9]
The trial court considered the following factors as aggravating: the
seriousness of the offence and its impact in the Northern
Cape; the
effect of stock theft on employment; the increase in price of the
livestock and the cost of meat to consumers.
[10]
I have considered whether the trial court could have erred in not
ordering the sentences to run concurrently. I do not think
so. The
cumulative effect of the sentences does not induce a sense of shock.
In fact, the argument presented by Mr Steynberg on
this aspect is
linked to the fact that had the appellant been declared a habitual
criminal he would have served 15 years instead
of the 16 years that
he is currently facing. The argument seems to lose sight of the fact
that the two offences are completely
unrelated and have occurred at
different times and places. The effect of the sentences if they run
consecutively is that the appellant
serves an effective term of 16
years’ imprisonment.
[11]
It is common cause between the parties that an imprisonment term of 6
years is appropriate for the current offence. Consideration
was given
on the aspect of ameliorating the effect of the sentence. Nothing
substantial was argued that swayed me to find misdirection
by the
trial court that warranted tampering with the sentence. The
instructive remarks by Marais JA in
S
v Malgas
[3]
need
mentioning:
“
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court.”
Declaring
an accused person a habitual criminal
[12]
Section 286 of the CPA stipulates
“
(1)
Subject to the provisions of subsection (2), a superior court or a
regional court which convicts a person of one or more offences,
may,
if it is satisfied that the said person habitually commits offences
and that the community should be protected against him,
declare him
an habitual criminal, in lieu of the imposition of any other
punishment for the offence or offences of which he is
convicted.”
[13]
Du Toit et al
[4]
, dealing with
situations or circumstances when the declaration of a person as a
habitual criminal is competent say the following
at Clause 8:
“
Even
though the court is satisfied or convinced…., no obligation to
declare the accused an habitual criminal arises; there
is still a
discretion (Du Toit 291;
S
v Makoula
[5]
;
R v Swarts
[6]
.
See
generally Terblanche
A
Guide to sentencing in South Africa
3
ed (2016) at 271 – 5
.”
[14]
It remains within the discretion of the judicial officer whether to
declare a person a habitual criminal or not. The Supreme
Court of
Appeal (SCA) has made plain in
S
v Van Eck
[7]
that:
“
A
Court will not ordinarily make a declaration in the absence of a
prior warning to the accused of the provisions of s 286.”
[15]
Taking cue from the SCA’s remarks in the
Van
Eck
case Snellenburg AJ concurred in by Moloi J made the following
pronouncements in
S
v Smith
[8]
:
“
[10]
Although s 286 contains no requirement that an accused person must be
warned that he is at risk of being declared a habitual
criminal prior
to such a declaration being made (see S v Van Eck
[9]
;
S v Masisi
[10]
),
and the fact that a warning has been given or not does not fetter the
discretion of the court to impose such a sentence (see
S v Magqabi
2004 (2) SACR 551
(E), it is notwithstanding a well-settled practice
not to declare a person a habitual criminal without prior warning,
save in exceptional
circumstances.”
[16]
It therefore follows that there could not have been a misdirection by
the trial court when it warned the appellant instead
of declaring him
a habitual criminal. I therefore find that the argument by the
appellant’s counsel in this regard is without
merit and must
fail.
[17]
The regional magistrate did not impose a disproportionate sentence.
The trial court also exercised its discretion judiciously
by warning
the appellant instead of declaring him a habitual criminal. This is
settled practice for which nothing in the record
dictated otherwise.
I could also find no material misdirection in not ordering that the
sentence imposed should run concurrently
with the sentence the
appellant is already serving. The cumulative effect of the sentences
is not so marked that it can properly
be described as ‘shocking’,
‘startling’ or ‘disturbingly inappropriate’.
Based on the aforementioned
reasons, the appeal stands to be
dismissed.
[18] In the result, the
following order is made:
The
appeal against sentence is dismissed.
_______________
MAMOSEBO MC
JUDGE
NORTHERN CAPE DIVISION
I concur
_______________________
TLALETSI LP
JUDGE PRESIDENT
NORTHERN CAPE DIVISION
For the appellant: Adv H
Steynberg
Instructed by: Kimberley
Justice Centre
For the respondent: Adv
AH Van Heerden
Instructed by: Director
of Public Prosecutions
[1]
Act 51 of 1977 as amended
[2]
See S v Rabie
1975 (4) SA 855
(A) at 857 D – F; Zimila v S
(1179/16)
[2017] ZASCA 55
(18 May 2017); Marota v The State (300/15)
[2015] ZASCA 130
(28 September 2015)
[3]
2001 (1) SACR 469
(SCA) at para 12;
2001 (2) SA 1222
;
[2001] 3 All
SA 220
;
[2001] ZASCA 30
[4]
Commentary on the Criminal Procedure Act, volume 2 [Service 58,
2017] 28-24A
[5]
1978 (4) SA 763
(SWA) at 766G
[6]
1953 (4) SA 461
(A) at 463B – C.
[7]
2003(2) SACR 563 (SCA) at 567f
[8]
2014 (2) SACR 190
(FB) at para 10
[9]
2003 (2) SACR 563 (SCA)
[10]
1996 (1) SACR 147
(O)