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[2017] ZANCHC 54
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Julies and Others v S (CA&R101/2016) [2017] ZANCHC 54 (31 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno
/ Case number:
CA&R 101/2016
Datum
aangehoor / Date Heard:
27/03/2017
Datum
gelewer/Date delivered:
31/03/2017
In
the appeal of:
BRIAN
JULIES
1
st
Appellant
SHAYEZAKHE
MNGUNI
2
nd
Appellant
FIKILE
MBULAWA
3
rd
Appellant
ANDREWS
JOHN
4
th
Appellant
and
THE
STATE
Respondent
Coram:
Williams, J et Erasmus, AJ
JUDGMENT
ON APPEAL
Erasmus,
Al
[1]
Th
e appellants
(accused no 2, 3, 4 and 5 in
the court
a quo),
were convicted in the Kimberley
Regional Court on 14 January 2016 on the following charges
and subsequently
sentenced as follows:
1.1
The first appellant was convicted on counts 1, 2
and 3, to
wit housebreaking with the intent to steal and theft,
unlawful possession of 10 rounds of ammunition and unlawful
possession of both a 9 mm
semi-automatic pistol and .38 revolver. He was sentenced to 5, 3 and
8
years imprisonment respectively and it was ordered that the
sentences be served concurrently.
1.2
The second appellant was convicted on counts 2 and 3, to wit
unlawful
possession of 2 rounds of ammunition and unlawful possession
of a .22 revolver and sentenced to 6 months and 4 years imprisonment
respectively and it was ordered that the sentences be served
concurrently.
1.3
The third appellant was convicted on counts 1 and
3
of housebreaking with the intent to steal and theft
and unlawful possession of a .30-06 hunting rifle and a
shotgun and
sentenced to 5 and 8 years imprisonment respectively and it was
ordered that the sentences were to be served concurrently.
1.4
The fourth appellant was convicted on count 1, to wit
housebreaking
with the intent to steal and theft and sentenced to 5
years imprisonment.
[2]
The appellants now appeal against their sentences, with leave of
the court
a quo.
[3]
The factual basis for the conviction was that the fourth appellant,
who had been employed by the complainant, had facilitated
a
housebreaking and subsequent theft at the residence of
the complainant during the period
14 - 16 of
June 2011. The fourth appellant had knowledge of the
complainant's safe, as he had assisted with its
installat
ion. He, together with the first and third appellants, forcefully
removed the safe from the wall to which it had been
bolted. The items
in the safe included five firearms, jewellery to the estimated value
of R150,000.00 and World War II medals,
which the complainant had
inherited from his father. Apart from the
firearms, none of the other items had
been recovered. During a search
of the third appe llant's residence, the police discovered the .30-06
rifle and shotgun of the
complainant. During another search the
complainant's .22 revolver and 2 rounds of ammunition were
discovered in the residence
of the second appellant. During a search
of the residence of accused no 1 in the court
a quo,
where
the first appellant had been residing, a medal
belonging to the complainant and two handgun holsters
of the stolen .
38 revolver and 9mm pistol were found in a bag belonging
to the first appellant. During
a further search the .38
revolver and 9mm pistol and 10 rounds ammunition were also discovered
where it had been hidden.
[4]
From the sentence proceedings it appears that the
court
a quo
had duly considered the triad of the personal
circumstances of the appellants, the seriousness of the offence and
the interests
of society. The court
a quo
had also
individualized the sentences, by determining each appellant's
individual moral blameworthiness and, after doing so,
had imposed
different sentences in accordance therewith. The court
a quo
had
also considered previous sentencing trends in determining the
appropriate severity of the sentences imposed and had tempered
a
disproportional cumulative sentence by ordering that the sentences be
served concurrently.
[5]
In
his heads of argument, with reference to comparative case law, Adv
Van Zyl Nel correctly pointed out that substantial terms of
imprisonment had been imposed for offences
of
unlawful
possession
of firearms and ammunition.
[1]
In respect of the offence of
housebreaking
with the intent to steal and theft, several cases which are
comparable to the offences in
casu,
were
referred to.
[2]
He, on
behalf of the appellants, correctly conceded that
no convincing arguments could be advanced which would
render the
sentences imposed startlingly disproportionate or
that the sentences
could
be vitiated by
material
misdirection. Mr Van Tonder, who appeared for the appellants at the
hearing of
the
appeal,
was
in
agreement with the submissions of Mr
Nel.
[6]
Adv Kgatwe, on behalf of the respondent, also submitted that the
court
a quo
had exercised its discretion properly and that the
sentences imposed were appropriate and that the appeal should
be dismissed.
[7]
It
is trite that the powers of a court of appeal to interfere with the
sentence imposed by the trial court are limited. In S
v
Obisi
[3]
it
was
stated:
"...
a Court of appeal is reminded in this passage that it should not
replace the sentence imposed by the trial court
with its own, for the test is not whether the appellate
tribunal would have imposed another form of punishment or not, but
whether the trial court exercised its discretion properly and
reasonably in imposing the sentence it imposed. The trial
court is deemed to have exercised its discretion
properly when the discretion is not based on a substantial
misdirection whether as to law or
fact or where
the sentence imposed is
not manifestly inappropriate and induces a sense of shock or not
substantially different from that which
the appeal Court would itself
have imposed."
[8]
We fully agree with the submissions of the counsel representing the
appellants and respondent. Accordingly the appeal against
the
sentences stand to be dismissed.
We
make the following order:
THE
APPEAL OF THE FIRST, SECOND, THIRD AND FOURTH APPELLANTS IS
DISMISSED.
_____________________
ERASMUS
SL
ACTING
JUDGE
I
agree.
____________________
WILLIAMS
CC
JUDGE
On
behalf of
the
Appellants
:
Adv.
V
an
Zyl
N
el
(Adv
.
V
an
Tonder repre
s
enting)
oio
Legal
A
i
d
SA
On
beh
a
lf
of Respondent:
Adv
.
K
.
M
.
Kgatwe
(oio
th
e
ND
PP)
[1]
5
v
NDINISA
2015
JDR 1943 (GP); 5
v
MADIKANE
2011
(2) SACR 11
(ECG); 5
v
SWARTZ
2016
(2) SACR 268
( WCC); 5
v
DELPORT
2016
(2) SACR 281
(WCC)
[2]
S
v
NOMBEMBU
2015
JDR 2228 (GJ); S
v
MKHATSHWA
2014
JDR 0783 (GP);
S
v
OLIVIER
EN ANDERE
1996
(2) SACR
387
(NC)
[3]
2005(2) SACR 350 (W) at 353 par (7)