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[2017] ZASCA 174
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Ndengezi v S (876/2017) [2017] ZASCA 174 (1 December 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 876/2017
Not
Reportable
In
the matter between:
JACOB
NDENGEZI
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Ndengezi
v The State
(876/2017)
[2017] ZASCA 174
(1 December 2017)
Coram:
Navsa,
Swain, Mathopo JJA and Mokgohloa and Ploos van Amstel AJJA
Heard:
1
November 2017
Delivered:
1
December 2017
Summary:
Appeal
against conviction and sentence – doctrine of common purpose
improperly applied – conviction set aside –
sentence
reduced based on misdirections including failure to take into account
considerable period spent in detention pending finalisation
of trial.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Raulinga J sitting as court of
first instance):
1 The appeal in relation
to the convictions on counts 1 and 2 and the related sentences is
upheld. Those convictions and the related
sentences are set aside.
2 The appeal against
sentence in relation to the remaining counts is upheld to the extent
reflected in the substituted order that
follows.
3 The order of the court
below in relation to sentence is set aside and substituted as
follows:
‘
Count
3, sentenced to fifteen (15) years’ imprisonment;
Counts 4 and 5 are taken
together and the sentence is one of twelve (12) years’
imprisonment;
Counts 6-9 taken together
for purpose of sentence, twelve (12) years’ imprisonment;
Counts 10 and 11 taken
together for purpose of sentence, three (3) years’
imprisonment.
The sentences in respect
of counts 6, 7, 8, 9, 10 and 11 will run concurrently with the
sentence imposed in respect of counts 4
and 5.
Accused three will serve
an effective term of twenty seven (27) years’ imprisonment.’
JUDGMENT
The
Court:
[1]
The appellant, Mr Jacob Ndengezi, was the third of five accused who
faced charges in the court below, the High Court of South
Africa
(Circuit Local Division of the Northern Circuit Division held at
Modimolle). The appellant and his four co-accused faced
five counts
of robbery with aggravating circumstances, four counts of attempted
murder and two counts involving the unlawful possession
of firearms
and ammunition. In respect of the first two counts of robbery with
aggravating circumstances the appellant was convicted
of theft. He
was also found guilty, with all of his co-accused, on three further
counts of robbery with aggravating circumstances
and on four counts
of attempted murder. Furthermore, the appellant and some of his
co-accused were found guilty on two counts relating
to a
contravention of provision of the
Firearms Control Act 60 of 2000
.
The appellant was sentenced as follows:
(i)
Count 1: 6 years’ imprisonment (theft).
(ii)
Count 2: 4 years’ imprisonment (theft).
(iii)
Count 3: 16 years’ imprisonment (robbery with aggravating
circumstances).
(iv)
Count 4 – 5: (Taken together for sentencing purposes): 12
years’ imprisonment (two counts of robbery).
(v)
Counts 6-9: (Taken together for sentencing purposes): 15 years’
imprisonment (four counts of attempted murder).
(vi)
Counts 10-11: (Taken together for sentencing purposes): 3 years’
imprisonment (unlawful possession of firearms and ammunition).
(vii)
The court ordered the sentence on count 2 to run concurrently with
the sentence on count 1, and the sentences on counts 4-5
and 10-11 to
run concurrently with the sentence on counts 6-9.
The
effective sentence was thus 37 years’ imprisonment.
[2]
After his conviction and sentencing, the appellant applied for leave
to appeal in the court below. On 24 November 2011, the
application
was refused. Subsequently, on 23 February 2015, this court granted
three of the appellant’s co-accused, namely
accused one, two
and four, leave to appeal to the full court in respect of their
convictions and sentences. On 23 May 2016 the
full court in Pretoria
confirmed the convictions and sentences of accused 1, 2 and 4, except
the convictions and sentences on counts
1 and 2, which were set
aside. Consequently, with the deduction of the sentences related to
counts 1 and 2 which had been set aside,
accused 1 and 2 each had an
effective sentence of 35 years’ imprisonment and accused 4, 33
years’ imprisonment. On
24 October 2016 the appellant was
granted special leave to appeal by this court, only in respect of the
convictions on counts 1
and 2 as well as the sentences imposed on all
the counts. It is what the present appeal is concerned with. This
appeal is one of
two related appeals heard by us on the same day. The
other, by accused one, two and four, under case number 296/2016, was
directed
against the full court’s dismissal of the appeal
against sentence.
[3]
It is common cause that the complainants in respect of the first two
counts of robbery with aggravating circumstances had indeed
each been
robbed of a motor vehicle, namely, a BMW and a Volkswagen Polo
respectively. In respect of the first and second robbery,
the
appellant was not identified as one of the robbers. The motor
vehicles were subsequently used in the bank robbery in respect
of
which the appellant and his co-accused were implicated. The other
counts faced by the appellant and his co-accused were related
to the
bank robbery and its aftermath. The bank robbery occurred more than a
week after the BMW had been taken and two days after
the complainant
in respect of the Volkswagen Polo had been robbed. In convicting the
appellant of the robbery of the two vehicles,
the trial court
(Raulinga J), with reference to
S v Mgedezi & others
1989
(1) SA 687
(A), said the following:
‘
I
think all that refers to common purpose, all that would confirm that
the five requirements in
Mgedezi
had
been met and it, therefore, means that one or the other or all of the
four accused were actually involved and participated in
the
commission of the offences.’
[4]
I pause to note that the court below did not rely on the doctrine of
recent possession to justify a conviction of theft on the
counts of
robbery with aggravating circumstances (counts 1 and 2), or of
receiving property knowing it to have been stolen. Those
would have
been competent verdicts in terms of
s 260
of the
Criminal Procedure
Act 51 of 1977
. Instead, the court below relied on the doctrine of
common purpose and
Mgedezi.
In relation to common purpose the
court below placed reliance on the following passage from that case
which reads as follows:
‘
In
the absence of proof of a prior agreement, accused No 6, who was not
shown to have contributed causally to the killing or wounding
of the
occupants of room 12, can be held liable for those events, on the
basis of the decision in
S
v Safatsa & others
1988 (1) SA 868
(A), only if certain prerequisites are satisfied. In
the first place, he must have been present at the scene where the
violence
was being committed. Secondly, he must have been aware of
the assault on the inmates of room 12. Thirdly, he must have intended
to make common cause with those who were actually perpetrating the
assault. Fourthly, he must have manifested his sharing of a
common
purpose with the perpetrators of the assault by himself performing
some act of association with the conduct of the others.
Fifthly, he
must have had the requisite
mens
rea
;
so, in respect of the killing of the deceased he must have intended
them to be killed, or he must have foreseen the possibility
of their
being killed and performed his own act of association with
recklessness as to whether or not death was to ensue.’
[5]
The court below erred when it proceeded to apply the principles set
out in
Safatsa
and
Mgedezi
to
the facts of this case. The association in relation to a common
purpose that manifested itself was in respect of the other counts,
excluding counts 1 and 2, in respect of which the appellants were
convicted. The bank robbery occurred some time after the complainants
on counts 1 and 2 had been robbed of their vehicles.
[6]
Before us, the State rightly did not oppose the setting aside of the
convictions on those two counts. The State was constrained
to concede
that the court below had erred in convicting the appellant on those
counts and did not seek to justify it on any basis.
It follows that
on that score the appeal should succeed.
[7]
Considering the sentences set out in para 1 above, it follows that if
the sentences on counts 1 and 2 are left out of the equation,
the
effective sentence imposed by the trial judge would be one of 31
years’ imprisonment. Before us it was submitted on behalf
of
the appellant that the sentence was too severe and should be reduced
significantly in proportion to the nature and seriousness
of the
offences.
[8]
Raulinga J’s judgment on sentence was brief. In sentencing the
appellant and his co-accused he rightly took into account
that the
peace in Modimolle, the town in which the bank robbery occurred, was
disturbed in the most dramatic fashion by the robbers
during and
after the bank robbery. He noted that, in making their getaway, the
appellant and his co-accused shot at the police,
damaging their
vehicles, and in the process hijacked two motor vehicles belonging to
innocent bystanders. The court below recorded
that innocent people
were
traumatised
by the
robbery and its aftermath. The appellant was 28 years old at the time
of the commission of the offences in question and was
a first
offender. The court below, in sentencing the appellant and his
co-accused, said the following:
‘
While
the sentences that I am going to meter out now will also consider the
circumstances of the accused, I want to say that it
is more an
emphasis on the rights of the victim and it is unfortunate that this
campaign
is starting when you are being sentenced because I believe this
campaign must be promoted from now on. The victims have to be
protected over and above the rights of perpetrators and I must state
again that our sentences have to be blended with mercy and
that they
have to be proportionate. It is for that reason that the following
sentences are being meted out.’ (Our emphasis.)
Earlier,
Raulinga J had said the following:
‘
[I]t
is high time that we should start to emphasise the rights of the
victims more than emphasising the rights of the perpetrators.’
[9]
The court below did not take into account the period of three years
and seven months that the appellant had spent in detention
pending
the finalisation of the trial.
[10]
The ‘campaign’ purportedly started by the court below is
unhelpful and is against the preponderance of authorities
which state
that a balance should be struck between societal interests and the
interests of an accused person. The failure to take
into account the
considerable period spent in detention is a further misdirection,
entitling this court to interfere in the sentence
imposed.
[1]
[11]
There is no rule of thumb that in determining an appropriate
sentence, one should take into account the period of detention
awaiting the completion of the trial and double it before subtracting
it from what the sentence would otherwise have been. Put
differently,
there is no mechanical formula to determine the extent to which a
sentence should be reduced by reason of the period
of detention prior
to conviction. In this regard see
S v Radebe
[2013] ZASCA 31
;
2013 (2) SACR 165
(SCA) at para 11. In para 13 the following appears:
‘
In
my view there should be no rule of thumb in respect of the
calculation of the weight to be given to the period spent by an
accused
awaiting trial. (See also
S
v Seboko
2009 (2) SACR 573
(NCK) para 22.) A mechanical formula to determine
the extent to which the proposed sentence should be reduced, by
reason of the
period of detention prior to conviction, is unhelpful.
The circumstances of an individual accused must be assessed in each
case
in determining the extent to which the sentence proposed should
be reduced.’
Part
of para 14 reads as follows:
‘
A
better approach, in my view, is that the period in detention
pre-sentencing is but one of the factors that should be taken into
account in determining whether the effective period of imprisonment
to be imposed is justified: whether it is proportionate to
the crime
committed.’
[12]
It was suggested on behalf of the appellant that an effective
sentence of between 16 and 20 years would be appropriate. We
disagree. Having regard to the brazen manner in which the bank was
robbed and the getaway effected, including a shootout wild-west
style
with innocent bystanders being drawn into the robbers’ web of
violence, a lenient sentence such as the one proposed
would send out
the wrong message. It must become clear to would-be perpetrators of
offences such as the ones in question that they
will be met with the
full force of the law and that sentences will be appropriate to the
offences they commit. However, the effective
sentence imposed
motivated by the court below on the basis of the ‘campaign’
referred to is severe. Moreover, the period
of incarceration pending
the finalisation of the trial was substantial and ought to have been
taken into account by the court below
in favour of the appellant. In
our view, having regard to all the circumstances, including the time
spent in detention pending
the outcome of the trial, an effective
sentence of 27 years’ imprisonment constituted in the manner
appearing in the substituted
order that follows, is appropriate.
[13]
The following order is made:
1 The appeal in relation
to the convictions on counts 1 and 2 and the related sentences is
upheld. Those convictions and the related
sentences are set aside.
2 The appeal against
sentence in relation to the remaining counts is upheld to the extent
reflected in the substituted order that
follows.
3 The order of the court
below in relation to sentence is set aside and substituted as
follows:
‘
Count
3, sentenced to fifteen (15) years’ imprisonment;
Counts 4 and 5 are taken
together and the sentence is one of twelve (12) years’
imprisonment;
Counts 6-9 taken together
for purpose of sentence, twelve (12) years’ imprisonment;
Counts 10 and 11 taken
together for purpose of sentence, three (3) years’
imprisonment.
The sentences in respect
of counts 6, 7, 8, 9, 10 and 11 will run concurrently with the
sentence imposed in respect of counts 4
and 5.
Accused
three will serve an effective term of twenty seven (27) years’
imprisonment.’
___________________
M S Navsa
Acting Deputy President
__________________
K G B Swain
Judge of Appeal
_________________
R S Mathopo
Judge of Appeal
_________________
F E Mokgohloa
Acting Judge of Appeal
________________
J Ploos van Amstel
Acting
Judge of Appeal
Appearances:
For
the Appellant:
H Fraser
Instructed
by:
Pieter
Coetzee Attorneys, Pretoria
Martins
Attorneys, Bloemfontein
For
the Respondent:
J P van der Westhuizen
Instructed
by:
Director
of Public Prosecutions, Pretoria
Director
of Public Prosecution, Bloemfontein
[1]
See
S
v Kgosimore
[1999] ZASCA
63
;
1999 (2) SACR 238
(SCA), para 10.