About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2017
>>
[2017] ZAGPPHC 267
|
|
Mtambo v S (A91/2016) [2017] ZAGPPHC 267 (24 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Date:
24/3/17
Case
Number: A91/2016
Reportable:
No
Of
Interest To Other Judges: No
In
the matter between:
THABISO
MTAMBO
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
HUGHES
Jet
MANYATHI AJ
JUDGMENT
HUGHES
J
[1]
The appellant was
convicted on 24 January 2013 at the Brakpan Regional Court on
three counts:
Count
2: Robbery;
Count
3: Robbery; and
Count
4: Rape
He
was sentenced to five years imprisonment in respect of count 2 and 3
as they were taken as one court for purpose of sentencing
and fifteen
years in respect of count 4. In total he was to serve an effective
twenty years imprisonment. In addition a non-parole
period was
affixed to the total of the sentence administered and the appellant
could not be released until at least two-thirds
of his sentence was
served.
[2]
At the trial the appellant was legally represented and pleaded
not guilty. After being found guilty the appellant filed for leave
to
appeal against his conviction and sentence. He was granted leave to
appeal by the court a quo on sentence only.
[3]
Briefly the facts are that the appellant was one of four
people who robbed the two female complainant's in count 2 and 3. In
addition,
the appellant decided to take the complaint in count 3 to a
nearby field and raped her after the robbery.
[4]
The crux of the appellant argument with regards the sentence
imposed lies with the sentence he attained for the rape of fifteen
years, the fixed term of two-thirds for non-parole period and the
omission to take into account the two years nine months that he
had
served in awaiting trial for finalisation of the trial.
[5]
The argument advanced that deals with the sentence impose for
the rape count 4 was that the prescribed minimums sentence of ten
years was not for a first offender but rather the maximum sentence of
fifteen years was imposed without providing substantial and
compelling factor for the imposition of a high sentence than that
prescribed.
[6]
In
S
v
Mathebula and Another
2012 (1) SACR 374
(SCA) at para [10] the court held
:
"A
regional magistrate has the discretion to impose a sentence exceeding
the minimum sentence prescribed by the Act with an
additional five
years as provided for in the proviso of s51(2). Such a discretion
must, however, be exercised judicially
and on reasonable
grounds. Where the regional magistrate
intends to depart from the prescribed
minimum
sentence, it is proper and fair that the regional
magistrate gives reasons for such
a departure.
Absent any such reasons, the conclusion becomes
inescapable that such a decision is arbitrary or
that the sentencing
discretion was not exercised judicially. It is not proper for an
appeal court to have to speculate about the
reasons which motivated
the regional magistrate to impose a sentence higher than the minimum
sentence prescribed. Such an approach
cannot be countenanced as it is
subversive to the principles of openness, transparency,
accountability and fairness. It is trite
that judicial officers can
only account for their decisions in court through their judgments. It
is through judgments which contain
reasons that judicial officers
speak to the public. Their reasons are therefore the substance of
their judicial actions."
[7]
In the matter at
hand the court a quo acknowledged that there was a
prescribed minimum sentence to adhere to and
deviate from same if
there are substantial and compelling circumstances to do so. The
court a quo went further to make the pronouncement
that there were no
substantial and compelling factors to justify a lesser
sentences than the prescribed minimum sentence.
But instead of
imposing the minimum it instead imposed the maximum with providing
reason therefore.
[8]
The state in in
agreement that the court a quo erred when it imposed the maximum
prescribed sentence when it sentenced the appellant
on the rape count
to fifteen years. The
state concurred with the appellant that the prescribed sentence in
these circumstance, the
appellant being a
first offender, was ten
years.
[9]
In the
circumstances the sentence imposed for count 4 falls to be set aside
and replaced with sentence of ten years.
[10]
The second matter is that the court a quo did not take into
account the appellant's time served when
sentencing took
place. This cannot be accepted a correct as
the court a quo states the following before
sentencing:
'I
am also alive to the cumulative effect of the sentence and that you
have already served some time, close to two years,
you
are also
a
first offender with
a
child
to fend for and still relatively young.
'
[11]
In the case before
me it is not evident form the record that the proceedings were
delayed in anyway by the state. The proceedings
were such that all
four accused in the court a quo were brought to account in accordance
with the principles of a fair trial and
all accused were duly
represented. This being the case I find
that
the circumstances in this case differ from that in
S
v
Vilakazi
2009 (1) SACR 552
(SCA) where the accuse in that case was
not brought to trial promptly and as such the period in awaiting
trial was taken into account
as it was not the actions of the accused
that delayed the trial proceedings, but rather the actions of the
state.
[12]
Lastly, the non-parole period imposed by the court a quo. As
argued on behalf of the appellant and conceded, rightly so I might
add by the respondent, the appellant was not warned by the
court a quo of its intention to impose a non- parole period to
his
sentence. Nether was he give an opportunity to make representations
in this regard. It was stated in
S
v Mhlongo
2016 (2) SACR 611
(SCA) at para [9]:
"The
fixing of a non-parole period is part of a criminal trial and it must
thus accord with the dictates of a 'fair trial'
that an accused
person be given notice of the court's intention to invoke s276B of
the Act and to be heard before a non-parole
period is fixed. Failure
to do so amounts to a misdirection by the sentencing court."
[13]
In the circumstances mentioned above it is evident to me that
the court a quo misdirected itself when it imposed the fixed
non-parole
period to the sentence of the appellant.
[14]
With regards to count 2 and 3 the appellant contend that the
court a quo did not consider the cumulative effect of sentencing and
erred when it failed to order that the sentence imposed in count 2
and 3 run concurrently with the sentence imposed in court 4.
I must
state that counsel for the appellant did not argue this point
vigorously.
[15]
Going back to the sentencing judgment the court a quo stated
clearly that count 2 and 3 for sentencing purposes would be taken
together.
In my view, count 4 is an offence on its own and apart from
the robberies which I regard as on continuing offence. Thus the court
a quo was correct in sentencing this specific count that is count 4,
separately from the two robberies. There is no basis to have
the
sentence in count 4 run concurrent with count 2 and 3 sentence. Thus
the court a quo did not misdirect itself in these circumstances.
[16]
Consequently the following order is made:
[a]
The appeal is upheld and the sentence in respect of count 4 is set
aside and substituted with
a sentence of ten (10) years imprisonment
[b]
The order fixing a non- parole period to the sentence of the
appellant is set aside.
[c]
The appeal against count 2 and 3 is dismissed.
It
is so ordered
____________________________
W.
Hughes
Judge
of the High Court Gauteng, Pretoria
I
concur
____________________________
B.
P. Manyathi
Acting
Judge of the High Court Gauteng, Pretoria
Appearances:
For
the Appellant : M
van Steynberg
Instructed
by
: Legal
Aid
For
the Defendant : Adv Wilsenach
Instructed
by
: The State Attorney
Date
heard
: 13 March 2017
Date
delivered :
17 March 2017