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[2017] ZAGPPHC 115
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Mbatha v S (A7555/15) [2017] ZAGPPHC 115 (24 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Date
: 24/03/2017
Case
Number: A755/15
In
the matter between:
NKOSANA
MOYO
MBATHA
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
HUGHES J
et
SHIRILELE
JUDGMENT
HUGHES
J
[1]
The appellant in this matter was convicted
on 5 September 2014 in the
regional
court of Nigel. He was legally represented and had pleaded not
guilty to the charges put to him. The court a quo
eventually found
him guilty for the following counts and sentenced him to cumulatively
50 years imprisonment:
Count
6 - Robbery with aggravating circumstances where he received a
sentence of fifteen years imprisonment;
Count
7 - Robbery with aggravating circumstances where he received a
sentence of fifteen years;
Count
8 - Housebreaking with intent to rob where he was sentenced to five
years imprisonment;
Count
9 - Robbery with aggravating circumstances where he was sentenced to
fifteen years.
He
applied for leave to appeal and same was refused by the court a quo.
He petitioned this court and was granted leave to appeal
in respect
of sentence only.
[2]
In respect of the counts that the appellant was found guilty, of
briefly the facts thereto are:
Count
6 - on 12 February 2013, at or near Devon, the appellant together
with two others robbed Musud Rahman, at gunpoint, of his
two
cellphones (Nokia and Blackberry), airtime to the value of R2000.00
and cash in the amount of R1600.00; Count 7 - on 26 January
2013 the
appellant and the same group mentioned in the previous charge and
also in Devon robbed Halima Hanie, using a fire arm
they took 9
cellphones, cigarettes and cash to the value of R11 900.00.
Count
8 - on 8 February 2013 also in Devon they broke into house [...]
extension [...] I. with the intent to rob Mbikane Makaja
and Tshepo
Rakadadi; and
Count
9 - on the very same day, place and involving the same complaints the
appellant and the same three others using a firearm
robbed the
complainants of 7 cellphones, Sony amplifier, Subhoover, cash,
clothes and takkies to the total value of R13 610.00.
In
count 6 and 7 the robberies were of business premises whilst the
break-in, in count 8 was at a residential address. The appellant
and
the two accompanied him were alleged to have been customers at these
business establishments and knew the owners.
[3]
One of the basis of the appeal of the appellant is that from the
record of the proceedings there is no indication that the appellant
was warned by the court a quo of the applicability of the minimum
sentence before he pleaded to the charges put to him. Adv. M
Masete,
for the appellant, argued that the court a quo erred in the
proceedings when it did not explain the ramifications of the
minimum
sentence implications. Therefore the appellant did not have a fair
trial and reference was made of S
v
Chowe
2010 (1) SACR 141
(GNP).
[4]
Adv. C Pruis, for the state, argued that the appellant did have a
fair trial as he was legally represented and fully aware of
the
minimum sentence implications as it appeared from the charge put to
the appellant to which he pleaded. This was so Adv. Pruis
argued even
though the consequences of the minimum sentence was not explained by
the presiding officer himself.
[5]
It is trite that the appellant's right to have had a fair trial is
entrenched in the Constitution, as set out in section 35
(3) (a),
that every person is entitled to a fair trial. It suffice to say that
the accused must be informed of the charge he is
to face which must
contain sufficient detailed particulars in order that the accused
answers and prepare adequately. The question
of what constitutes
sufficient detail was dealt with in S
v Kolea
2013 (1) SACR
409
; S
v Legoa
2003 (1) SACR (SCA); S
v Seleke en
Andere
1976 (1) SA 675
(T) and the nub of the dicta in
these cases is that though it is
desirable to
have all proper
and regular fact of the charge an accused is facing and its
consequences if found guilty, it is
not
essential
to do so.[My emphasis in italics]
[6]
If an enquiry is necessary to conclude whether the accused had a fair
trial or not, in light of the fact that he was not informed
of the
consequences of the applicability of the minimum sentences, all the
facts of the circumstances of the trial process would
have to be
considered. Ponnan JA in a minority judgment in S
v Mashinini and
Another
2012 (1) SACR 604
(SCA) para [51] stated that the
fair-trial enquiry is one that is not conducted in a
vacuo
and
is
first and foremost
a
fact-based enquiry.
[7]
In the circumstances of this case being that the charges that were
put to the appellant, specifically counts 6, 7 and 9, clearly
stated
that the charge of robbery with aggravating circumstances in those
counts should be read with the provisions of section
51(2) of the
Criminal Procedure Act 105 of 1997, the fact that the appellant was
legally represented and that the presiding officer
in the court a quo
acknowledged and advised the appellant before sentencing that he had
to consider if there were substantial and
compelling factor to
warrant that he deviate from the prescribed sentence to be imposed,
is sufficient for me to conclude that
the appellant had a fair trial.
[8]
Adv. Masete submitted that the imposition of a cumulative sentences
of 50 years was not in the interest of the community and
the
appellant. He further submitted that the sentence was harsh and
induced a sense of shock. She argued that the court a quo erred
by
finding that there were no substantial and compelling factors to
impose a lesser sentence than the prescribed minimum sentence.
[9]
In my view the court a quo from the record took into account the age
of the appellant (34 years), that he was a first offender
and had no
pending cases. Further, that he had a 64 year old mother and a one
year old son whom he helped maintain. Against this
backdrop, the
court a quo weigh this against the facts of the case. The community
being under siege by the conduct of the appellant
and his two
accomplices in that the convictions on the counts formed part of spat
of robberies over a short period of time. That
the businesses robbed
were places which the appellant was known. That the value of the
goods taken and money robbed were substantial,
the serious nature of
the offences and the interest of society needed to be taken into
account in these circumstances.
[10]
I am satisfied that the mitigating factors advanced on behalf of the
appellant before sentencing amount to general mitigation
factors and
the court a quo was correct in concluding that they were not
substantial and compelling to deviate from the imposition
of the
prescribed minimum sentence for each count were such was applicable.
[11]
Though the court a quo appreciated the dicta as set out in
S v
Rabie
1975 (4) SA 855
(A), that sentencing should be approach
with firmness, but with humanity and compassion to human frailties
and pressures of society
which contribute to criminality. The
presiding officer in the court a quo, in my view, lost the plot when
he stated that
'The court is not going to order that any sentence
run concurrently.'
This was advanced with no explanation
why this stances was being taken in light of the factors advanced in
mitigation.
[12]
Thus it is evident that the prospect of rehabilitation of the
appellant was not taken into account when this pronouncement
was made
taking into account the cumulative effect of the sentence imposed.
Such sentences of fifty years should be reserved for
heinous
offences. See S
v Muller
2012 (2) SACR 545
(SCA) at para [10].
In this instances, my view is that, these offences that the appellant
is convicted of do not fall into the
category of heinous offence. In
addition the appellant is a first offender with no pending cases and
is rehabilitative taking into
account his age and other factors
mentioned.
[13]
I am fortified that the prescribed minimum sentence be ascribed for
counts 6, 7 and 9, that is, each of these counts would
obtain the
minimum sentence of fifteen years. However, the sentences in these
counts would run concurrently, that being, the sentences
in counts 7
and 9 will run concurrently with that sentence imposed for count 6.
The sentence imposed for count 8 of five years
should remain in force
having granted measure of mercy but still remaining firm. A
cumulative period of twenty years imprisonment
is therefore imposed.
[14]
In the result the appeal in respect of sentence succeeds. The order
of the court a quo is replaced with the following order:
(a)
The appeal succeeds only to the extent set out in (b) below.
(b)
In respect of counts 7 and 9, it is ordered that the sentence of
fifteen years imposed in each of these counts,
is to run concurrently
with the sentence of fifteen years imposed in count 6.
(c)
The sentence in count 8 of five years is confirmed.
(d)
A total period of twenty years imprisonment is thus imposed.
It
is so ordered
__________________________
W.
Hughes
Judge
of the High Court Gauteng, Pretoria
I
concur
__________________________
C
Shirilele
Acting
Judge of the High Court Gauteng, Pretoria