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[2018] ZAKZPHC 54
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Dladla v S (AR708/16) [2018] ZAKZPHC 54 (10 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO.
AR708/16
In the
matter between:
DAZI
REGINALD SANDILE
DLADLA
APPELLANT
and
THE
STATE
RESPONDENT
J U D G M E N T
Henriques J
(Lopes J et D Pillay J concurring)
[1]
The appellant was convicted in the High Court presiding in Ladysmith
on 2 March 2000 on the following counts:
Count 1: Robbery;
Count 2 : Assault
with intent to do grievous bodily harm;
Count 4 and 5:
Murder;
Count 6 : Attempted
murder.
He was sentenced as
follows:
Count 1 : Three (3)
years’ imprisonment;
Count 2 : Two (2)
years’ imprisonment;
Count 4 : Thirty
(30) years’ imprisonment;
Count 5 : Thirty
(30) years’ imprisonment;
Count 6 : Ten (10)
years’ imprisonment.
[2]
The sentences imposed on counts 1, 2 and 6 were ordered to run
concurrently with the sentences imposed on counts 4 and 5.
The
appellant was thus sentenced to an effective 60 years’
imprisonment. Leave to appeal the convictions and sentences
was
refused by the court a quo on 13 October 2009, and on 21 July 2016 on
petition, leave to appeal the sentences imposed was granted.
It is
this appeal which serves before us.
[3]
The grounds of appeal relied on by the appellant are the following:
that the court a quo committed a misdirection in not ordering
all the
sentences to run concurrently and as a consequence the effective term
of imprisonment is disproportionate having regard
to the offences,
and the court a quo failed to attach sufficient weight to the age of
the appellant, he being 23 years old at the
time of sentencing.
[4]
Before dealing with the merits of the appeal it is necessary to
briefly deal with the circumstances in which the offences were
committed, as this has a bearing on the conclusion reached. It is
undisputed that the incidents occurred at approximately 17h00
on 4
June 1998 at an extremely busy taxi rank in Escourt when the
complainant in counts 1 and 2, Brenda Mbatha, was robbed by the
appellant and his companion. When she attempted to retrieve her purse
a struggle ensued between her and the appellant, and during
the
struggle, she struck him with a beer bottle as a result of which he
dropped her purse which she recovered minus the money that
had been
inside it. At the time of her struggling with the appellant Alpheous
Xaba (the deceased in count 3) attempted to intervene
and assist her
to no avail. The appellant and his companion were able to run away.
[5] A
short while later, the appellant accompanied by five other males
returned to the taxi rank and began assaulting Brenda Mbatha
and
Xaba. She was assaulted with stones and bottles, and during the
assault, Jabulani Zwane attempted to intervene and assist Mbatha
in
hiding from her assailants. Whilst the assault occurred Mbatha heard
a gunshot, as someone among the five who accompanied the
appellant
was armed. The evidence revealed that several shots were fired at
innocent persons who were in the vicinity of the taxi
rank which
resulted in the death of the deceased in counts 4 and 5.
[6] It
is trite that the imposition of sentence is a matter which falls
within the sole discretion of the trial court. An appeal
court’s
powers to interfere with the sentence imposed is limited to
circumstances where there is a material misdirection
or irregularity
vitiating the sentence, or if the sentence imposed is ‘disturbingly’
or ‘startlingly’ inappropriate
so as to induce a sense of
shock, or if it is one which differs so greatly from the one which
the appeal court itself would have
imposed (
S v Kgosimore
[1]
).
[7] At
the hearing of the appeal, Mr
Masondo
who appeared for the
appellant indicated that the appeal was focused on the sentences
imposed in respect of counts 4 and 5. He
submitted that an
appropriate sentence for these two counts was one of 20 years’
imprisonment in respect of each count, and
for the court to order all
the sentences to run concurrently.
[8]
This submission, in my view, fails to take into consideration the
gravity of the offences and the fact that three innocent bystanders
were shot, two of whom died as a consequence, and the fact that the
appellant was no stranger to the law as he had a previous conviction
for murder which sentence was wholly suspended, and that these
offences were committed during the period of suspension.
[9] Mr
Singh
who appeared for the respondent, whilst conceding the
appeal, submitted that a sentence of life imprisonment was
appropriate in
respect of counts 4 and 5. This submission was
based on the appellant’s previous conviction and the
particularly vicious
and brutal circumstances under which the present
offences were committed. He submitted that despite the
appellant’s
age, he was not a callow youth and his youthfulness
did not play a role in the commission of the offences.
[10]
The following must be borne in mind. The indictment in this matter
did not make reference to the minimum sentencing legislation.
Although the record contains reference to it in the judgment on
sentence, the court a quo was concerned with the appropriateness
of a
sentence of life imprisonment and one of the recognised purposes of
sentence being rehabilitation. In addition, the
Supreme Court
of Appeal has warned against the imposition of excessively long
sentences (
S v Mhlakaza
[2]
).
[11]
It appears that the court a quo in imposing the sentences that it did
on counts 4 and 5, despite being alive to the importance
of
rehabilitation, failed to consider the cumulative effect of the
sentences imposed (see
S v Johaar,
and
S v Moswathupa)
[3]
,
and in addition, did not consider that all the offences were closely
related in time and space to each other and with one common
intent (
S
v Mokela)
.
[4]
In addition, when imposing sentence, a sentencing court ought not to
be influenced by factors such as eligibility for parole or
the
minimum period of time that a sentenced prisoner will serve. This is
the exclusive domain of Correctional Services.
[12] I
agree with the sentiments expressed by our courts that the imposition
of a period of imprisonment of 60 years is a ‘methuselah’
sentence and defeats one of the purposes of sentencing, being
rehabilitation. In
S v Nkosi
[5]
which was referred to by the respondent in the heads of argument,
the court remarked that the imposition of such a sentence results
in
an accused person having no chance of being released on the expiry of
the sentence and also no chance of being released on parole
and such
sentence is tantamount to cruel, inhuman and degrading punishment.
[13]
At the hearing both parties agreed that an appropriate option to
ameliorate the effect of the sentences would be to order the
sentences on all counts to run concurrently, which would translate to
the appellant serving an effective 30 years’ imprisonment.
Given the circumstances of the offence and the personal circumstances
of the appellant this is the most appropriate option.
[14]
In the result it is ordered that the appeal against sentence is
upheld to the extent that the sentences imposed on all counts
are to
run concurrently. The appellant will thus serve an effective 30
(thirty) years’ imprisonment. Such sentences
are
antedated to 2 March 2000 in terms of s 282 of the
Criminal Procedure
Act 51 of 1977
.
Henriques J
D Pillay
J
Lopes J
Appeal
heard on : 1 August 2018
Judgment
handed down on : 10 August 2018
Counsel
for the appellant :
Mr
Masondo
Instructed
by :
Durban Justice Centre
The Marine, Ground Floor,
22
Dorothy Nyembe Street
Durban
Telephone
(031) 304 3290
Reference
: SB Masondo X707121117
Counsel
for the respondent :
Mr
Singh
Instructed
by :
Director of Public Prosecutions
High Court Building,
Church
Street,
Pietermaritzburg
Reference
: Mr CL Singh
[1]
S v Kgosimore
1999 (2) SACR 238
[2]
S v Mhlakaza
& another
1997 (1) SACR 515
(SCA)
[3]
S v Johaar & another
2010 (1) SACR 23
(SCA);
S v
Moswathupa
2012 (1) SACR 259 (SCA)
[4]
S v Mokela
2012 (1) SACR 431
(SCA) para 11
[5]
S v Nkosi & others
2003 (1) SACR 91
(SCA) para 9