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[2017] ZASCA 181
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Msimango v S (698/2017) [2017] ZASCA 181; 2018 (1) SACR 276 (SCA) (1 December 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 698/2017
In
the matter between:
MANDLA
MSIMANGO
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Msimango
v The State
(698/2017)
[2017] ZASCA 181
(01 December 2017)
Coram:
Cachalia and Bosielo
JJA and Tsoka, Ploos van Amstel and Rogers AJJA
Heard
:
02 November 2017
Delivered:
01
December 2017
Summary:
Criminal
Law – appellant convicted of one count of robbery with
aggravating circumstances read with
s 51(2)
of the
Criminal Law
Amendment Act 105 of 1997
and two counts of attempted murder based on
common purpose. No allegations of common purpose in the charge sheet.
ORDER
On
appeal from:
South
Gauteng High Court, Johannesburg (Makume J and Collis AJ sitting as
court of appeal):
1
The
appeal against the conviction in respect of count 1 is dismissed.
2
The
appeal against sentence imposed in respect of count 1 is upheld.
3
The
sentence of 20 years’ imprisonment in respect of count 1 is set
aside and substituted with:
‘
(a)
The appellant is sentenced to 13 years’ imprisonment.’
4
The
appeal against the conviction in respect of count 3 is upheld and the
conviction and resultant sentence are set aside.
JUDGMENT
Bosielo
JA
(Cachalia
J and Tsoka, Ploos Van Amstel and Rogers AJJA concurring):
[1]
The appellant stood trial in the regional court, Johannesburg, on
three counts. Count 1 was that of robbery with aggravating
circumstances as envisaged in s 1 of the Criminal Procedure Act 51 of
1977 (CPA), in that a firearm was used. In addition, the
charge
alleged that this count should be read with the provisions of s 51(2)
of the Criminal Law Amendment Act 105 of 1997 (CLAA),
which
prescribed a minimum sentence of not less than fifteen years unless
the court has found that there are substantial and compelling
circumstances which justify the imposition of a lesser sentence. In
count 2, the appellant was charged with attempted murder where
the
complainant, Mr Dixon Kasinga (Kasinga), was shot with a firearm
whilst count 3 was a charge of attempted murder where Mr Samuel
Marumenya (Marumenya) was assaulted with a meat cleaver.
[2]
At the end of the trial in the regional court, the appellant was
convicted on counts 1 and 3, and was acquitted on count 2.
The
regional magistrate sentenced the appellant to 20 years’
imprisonment in respect of count 1 and five years in respect
of count
3. The effective sentence was 25 years’ imprisonment.
[3]
With the leave of the court below, the appellant appealed against his
convictions and sentences on both counts 1 and 3. His
convictions
were confirmed by the court below but his sentence on count 3 was
ordered to run concurrently with the sentence on
count 1. His
sentence was predated to 22 February 2010. The effective sentence for
the appellant was 20 years’ imprisonment.
[4]
Aggrieved by this, the appellant petitioned this Court for special
leave to appeal, which this Court granted on 8 September
2015.
[5]
The facts leading to this appeal can be conveniently summed up as
follows: Marumenya, a Nigerian national, conducted a recycling
business at No 33 Hanau Street, in Jeppes Town, Johannesburg. The
premises are situated near Jeppes Men’s Hostel. He lived
there
and also shared the premises with Mr Mfanafuthi Mgwewu (Mgwewu), a
local resident who hails from Soweto in Johannesburg and
Kasinga, a
Malawian citizen.
[6]
Marumenya testified that on 17 May 2008, he received information that
Zulu speaking people from the Jeppe hostel were attacking
foreigners.
Mgwewu arrived at Marumenya’s home the following morning and
informed him that he had seen terrible devastation
at the places of
some Malawians. Marumenya testified that Mgwewu told him that some
men swore at him and threatened to burn his
place down. After
speaking to the men who confirmed the imminent attacks of foreigners’
properties, Mgwewu went to Marumenya
and told him that those men
wanted some money as a protection fee against imminent attacks on all
foreigners. Marumenya gave Mgwewu
R350 to give to them ostensibly as
a protection fee.
[7]
At about 16h00, two men returned to Marumenya’s place. Mgwewu
recognised one of the two men as the man to whom he had
paid the
money that morning. He called him ‘Simphiwe’ as this is
the name he gave him in the morning, apparently to
facilitate their
communication when the attacks started. He did not know the other
person, who is the appellant in this appeal.
Unexpectedly, the two
men became violent and started to search them. They then herded
Marumenya, Mgwewu and Kasinga into a toilet
on the premises where
they were held hostage and assaulted. Inside the toilet, the
appellant hit Marumenya with a firearm on his
head and took his
cellular phone. The two men demanded money. In an attempt to stop
this assault, Marumenya produced his ATM card
and offered them some
money. When they showed no interest in his ATM card, he offered them
a further R1800 which he had in his
wallet at his house.
[8]
Marumenya testified further that whilst this was happening Simphiwe
went to his room where Marumenya had left his fiancé.
She was
also taken to the toilet where Marumenya, Kasinga and Mgwewu were
being held hostage. At this time, Marumenya stood up
and tried to
negotiate some settlement with the appellant. Apparently, this
angered the appellant, and, as a result, he hit him
with the barrel
of a firearm on his head. The appellant furthermore threatened to
shoot him.
[9]
Suddenly, a sound of gun fire came from the toilet. The appellant
rushed to the toilet. A struggle ensued during which Mgwewu
attempted
to grab the appellant’s hand which held the gun. The appellant
shot at Mgwewu and at Marumenya whilst they were
approximately one
metre apart, but fortunately the bullet missed him. At this stage,
Simphiwe disposed him of the speaker and hit
him therewith.
Whereafter Marumenya fled to the kitchen and returned with a meat
cleaver. Simphiwe then took the meat cleaver from
him and hit him on
his head with the meat cleaver which caused him to lose
consciousness.
[10]
After he regained consciousness, he discovered that Kasinga had been
shot in his mouth. He was seriously injured to the extent
that he
could not stand up. Both Marumenya and Kasinga were admitted to
Johannesburg Hospital Intensive Care Unit for medical treatment.
While being attended to at the hospital, Marumenya saw and identified
the appellant who was also brought there for medical treatment.
He
told Kasinga about his discovery. Kasinga also identified the
appellant as one of the two men who had earlier assaulted them
at
Marumenya’s home.
[11]
The police were called to the hospital where Marumenya identified the
appellant to the police as the person who had assaulted
and robbed
him of his property at his premises. The appellant had a bullet
embedded in his wrist and an injury on his ear where
Mgwewu had
bitten him.
[12]
During the ensuing trial, a medical report in respect of Marumenya,
the so-called J88, was admitted into the record as an exhibit
in
terms of s 220 of the CPA. It reflected that Marumenya had suffered
multiple scalp lacerations to the head, but not a breaching
scalp,
and one posterior scalp laceration underlying the back of the skull.
Marumenya was referred to a neurosurgeon for further
examination.
[13]
The State then called Mgwewu to testify. Suffice to say that his
testimony corroborated Marumenya’s.
[14]
It is common cause that in convicting the appellant on count 3, the
regional magistrate relied on the doctrine of common purpose
even
though it was never averred either in the charge sheet or proved in
evidence. It was impermissible for the regional magistrate
to have
invoked the principle of common purpose as a legal basis to convict
the appellant on count 3 as this never formed part
of the state’s
case.
[15]
Undoubtedly, the approach adopted by the regional magistrate of
relying on common purpose which was mentioned at the end of
the trial
is inimical to the spirit and purport of s 35(3)(
a
) of the
Constitution of the Republic of South Africa, Act 108 of 1996 (the
Constitution) under the heading ‘Arrested, detained
and accused
persons’. In fact it is subversive of the notion of the right
to a fair trial which is contained in s 35(3)(
a
) of the
Constitution which provides in clear terms that:
‘
(3)
Every accused person has a right to a fair trial, which includes the
right –
(a)
to
be informed of the charge with sufficient details to answer it.’
[16]
Section 35(3) falls under Chapter 2 of the Constitution under the
heading, the Bill of Rights. Section 7 of the Constitution
commands
the State to respect, protect, promote and fulfil the Rights in the
Bill of Rights. However, this is subject to legitimate
limits in
terms of s 36 of the Constitution. The requirement embodied in s
35(3) is not merely formal but substantive. It goes
to the very heart
of what a fair trial is. It requires the state to furnish every
accused with sufficient details to put him or
her in a position where
he or she understands what the actual charge is which he or she is
facing. In the language of s 35(3)(
a
),
this is intended to enable such an accused person to answer and
defend himself in the ensuing trial. Its main purpose is to banish
any trial by ambush. This is so because our criminal justice is both
adversarial and accusatory.
[17]
The Constitutional Court enunciated the right to a fair trial as
follows in the seminal case of
S v Zuma & others
[1995] ZACC 1
;
1995 (1)
SACR 568
(CC) para 16:
‘
That
caveat
is of particular importance in interpreting s 25(3) of the
Constitution. The right to a fair trial conferred by that provision
is broader than the list of specific rights set out in paras
(a)
to
(j)
of the subsection. It embraces a concept of substantive fairness
which is not to be equated with what might have passed muster
in our
criminal courts before the Constitution came into force. In
S
v Rudman and Another; S v Mthwana
1992 (1) SA 343
(A), the Appellate Division, while not decrying the
importance of fairness in criminal proceedings, held that the
function of a
Court of criminal appeal in South Africa was to enquire
“whether there has been an irregularity or illegality, that is
a
departure from the formalities, rules and principles of procedure
according to which our law requires a criminal trial to be initiated
or conducted”.
A
Court of appeal, it was said (at 377)
“
does
not enquire whether the trial was fair in accordance with “notions
of basic fairness and justice”, or with the
“ideas
underlying the concept of justice which are the basis of all
civilised systems of criminal administration”.
That
was an authoritative statement of the law before 27 April 1994. Since
that date s 25(3) has required criminal trials to be
conducted in
accordance with just those “notions of basic fairness and
justice”. It is now for all courts hearing criminal
trials or
criminal appeals to give content to those notions.’
Although
the Constitutional Court was here dealing with s 25(3) of the Interim
Constitution which has now been replaced by s 35(3)
of the
Constitution, this dictum is still relevant to s 35(3). See also
National
Director of Public Prosecutions v King
[2010]
ZASCA 8
;
2010
(2) SACR 146
(SCA).
[18]
Both counsel conceded that as the charge sheet is silent on any
possible reliance on the doctrine of common purpose, and further
that
there was no application for amendment of the charge sheet in terms
of s 86 of the CPA, the conviction of the appellant on
attempted
murder in count 3 cannot stand. I agree.
[19]
The second question relates to the appropriateness of the effective
sentence of 20 years’ imprisonment for robbery with
aggravating
circumstances where a firearm was used. It is clear from the
evidence, looked at holistically, that the sentence of
20 years’
imprisonment was erroneously influenced by the circumstances
surrounding the conviction for attempted murder on
count 3. Now that
the conviction on count 3 has been set aside and the sentence of five
years’ imprisonment have fallen away,
the question remains
whether the effective sentence of 20 years’ imprisonment in
respect of count 1 is still appropriate.
Put otherwise, whether the
sentence is not so disturbingly disproportionate to the conviction
that it amounts to substantial and
compelling circumstances as
required by s 51(3) of the CLAA which justifies a departure from the
minimum sentence.
[20]
In order to answer this question, it is necessary to revisit the
facts and circumstances underpinning the sentence on the charge
of
robbery with aggravating circumstances. This case has the following
serious aggravating factors. These are that the appellant
played a
prominent and key role in extorting money from the complainant that
morning. He took advantage of an atmosphere of xenophobic
attacks
which rendered the complainant and his employees vulnerable; that he
extorted money from the complainant by falsely offering
to protect
them against the xenophobic attacks; that the entire robbery was
based on greed; that the complainant and his employees
were subjected
to a prolonged and wanton attack.
[21]
The evidence tells us further that, after he had successfully
extorted money from Marumenya in the morning, the appellant went
back
to his co-perpetrator where they planned the eventual attack and
concomitant robbery; armed with a firearm, they both returned
to
Marumenya’s premises. After they had herded Marumenya, Kasinga,
Mgwewu, and Marumenya’s fiancé into the toilet,
they
unleashed a vicious attack on them. As a result Marumenya suffered
serious injuries with far-reaching consequences. The medical
report
tells us that he needed further specialist treatment and according to
the neurologist as a result of his injuries sustained
during the
attack, he damaged his brain in the sense that his feet feel numb.
Kasinga in turn was shot in the mouth.
[22]
Sadly, there are indications that Marumenya, being a foreigner, was
identified as a soft target for the appellant and his friend,
Simphiwe. These kinds of assaults by nationals on the foreigners in
our country came to be known as xenophobia. During this period,
xenophobia had spread like cancer in the country. Needless to state
that xenophobic attacks have had a negative effect on our countries’
image both continentally and internationally. It is a scourge that we
need to root out wherever it rears its ugly head.
[23]
For an appropriate sentence, it is important that I consider all the
circumstances relevant to sentencing including the appellant’s
personal circumstances. The appellant was 23 years old at the time;
he has two children from different mothers, one is four years
old and
the other is three years and six months old; he is earning R200 per
week for washing taxis; he left school at grade 9.
[24]
In terms of s 51(2) of the CLAA, the appellant should have been
sentenced to a period of not less than 15 years’ imprisonment
in the absence of substantial and compelling circumstances. It is
true that the regional magistrate had the power to add a further
five
years to the minimum sentence of 15 years’ imprisonment.
However, the increase is not to be done whimsically but on
sound
legal principle which can withstand scrutiny. This requires any
presiding officer who intends to invoke this power to give
reasons
therefore. Regrettably, the regional magistrate gave no reasons for
increasing this sentence with an additional five years.
On the
evidence as it stands, the increase is not justified.
[25]
It remains a salutary principle of our law that presiding officers
should give reasons for every decision which they make,
particularly
if it has adverse consequences for the accused. This principle was
enunciated as follows by this Court in
S v Mathebula
&
another
[2011] ZASCA 165
;
2012 (1) SACR 374
(SCA) par 10:
‘
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 to s 51(2). Such a discretion
must, however, be exercised judicially and on reasonable
grounds.
Where a 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.
Dealing with a similar
matter this court enunciated the principle as follows in
S
v Maake
[2010] ZASCA 51
;
2011 (1) SACR 263
(SCA) para 19:
“
It
is not only a salutary practice, but obligatory for judicial officers
to provide reasons to substantiate conclusions.”
The
court went on to state the following in para 20:
“
When
a matter is taken on appeal, a court of appeal has a similar interest
in knowing why a judicial officer who heard the matter
made the order
which he did. Broader considerations come into play. It is in the
interest of the open and proper administration
of justice that courts
state publicly the reasons for their decisions. A statement of
reasons gives some assurance that the court
gave due consideration to
the matter and did not act arbitrarily. This is important in the
maintenance of public confidence in
the administration of justice.”
See
Strategic Liquor Services v Mvumbi NO & others
[2009] ZACC
17
;
2010 (2) SA 92
(CC);
2009 (10) BCLR 1046
CC para 15.’
See
also
S
v Maake
2011 (1) SACR 263
(SCA) para 19.
[26]
As to whether there were substantial and compelling circumstances to
justify a deviation from the prescribed minimum sentence
of 15 years’
imprisonment, the appellant’s personal circumstances were not
on their own sufficient to pass muster.
However, he had spent 21
months in a correctional centre awaiting trial. This tilts the
balance in his favour and makes the sentence
of 15 years’
imprisonment disproportionate in all the circumstances. Justice and
fairness requires that the appellant should
be credited with those
years.
[27]
In the result, the following order is made:
1
The
appeal against the conviction in respect of count 1 is dismissed.
2
The
appeal against sentence imposed in respect of count 1 is upheld.
3
The
sentence of 20 years’ imprisonment in respect of count 1 is set
aside and substituted with:
‘
(a)
The appellant is sentenced to 13 years’ imprisonment.’
4
The
appeal against the conviction in respect of count 3 is upheld and the
conviction and resultant sentence are set aside.
________________________
L
O Bosielo
Judge
of Appeal
Appearances
For
the Appellant:
W Karam
Instructed
by:
Justice Centre,
Pretoria
Justice
Centre, Bloemfontein
For
the Respondent: LR Surendra
Instructed by:
Director of Public
Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein