About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2016
>>
[2016] ZAFSHC 128
|
|
Paledi and Others v S (A102/2016) [2016] ZAFSHC 128 (28 July 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No. : A102/2016
In
the matter between:
LEBAMANG
JACOB PALEDI
1
st
Appellant
MALEFETSANE
WILLIAM MOHETHI
2
nd
Appellant
SIMON
SEEISA MOSHOESHOE
3
rd
Appellant
and
THE
STATE
CORAM:
MOLEMELA,
JP
et
MOLOI,
ADJP
et
MUSI, J
JUDGMENT:
C.J.
MUSI, J
HEARD
ON:
6 JUNE
2016
DELIVERED
ON
:
28 July 2016
[1]
This is an appeal against the sentences imposed by a single judge of
this division.
[2]
The appellants were accused 2 to 4 in the court
a
quo
.
I shall hereinafter refer to the appellants as the accused.
Accused 1 failed to appear in the court
a
quo
and a warrant for his arrest was issued. He could not be traced
and the court
a
quo
ordered that his trial be separated from that of accused 2 to 4.
[3]
The facts are briefly as follows: On 17 April 2013 at
approximately 19:00 the four accused went to a tuck shop at
Selosesha,
Thaba Nchu where Mr Salten Hassen, the deceased, was
selling goods. He suspected that they wanted to rob him.
He called
Messrs Daste and Teradu to assist him. They were at
another tuck shop and drove to the tuck shop where the deceased was
working.
When they got there accused 1 shot at them whilst they
were still in the car. He approached them and accused 2 to 4
ran into
the tuck shop where they robbed the deceased. Accused
1 robbed Messrs Daste and Teradu of their cellular phones whereafter
he ran into the shop and shot the deceased. All the accused ran
away together after the shooting. The three accused
were
convicted on all the charges based on the doctrine of common
purpose. There is no appeal against their conviction.
[4]
The accused were convicted of two counts of attempted murder, two
counts of robbery with aggravating circumstances and one count
of
murder. Accused 4 was a minor when the crimes were committed.
The accused were sentenced as follows:
“
a)
Accused number 2 is sentenced to effective 15 years for count 5
murder, 10 years for count 1 and 2 attempted
murder and 10 years for
counts 3 and for robbery.
b)
Accused 3 is sentenced to effective 15 years for murder count 5, 10
years for count 1 and 2 attempted
murder, 10 years for counts 3 and 4
robbery.
c)
Accused 4 is sentenced to 10 years for count 5 murder 5 of which will
be suspended, 5 years
for count 1 and 2 attempted murder, 5 years for
count 3 and 4 robbery.
d) All
the sentences imposed upon the accused are to run concurrently.
e)
In terms of
section 282
of the
Criminal Procedure Act 51 of 1977
the
sentences imposed upon the accused are antedated to the date upon
which they were originally sentenced which is 24 April 2013.”
Quoted without emendation.
[5]
I assume that the learned judge took counts 1 and 2 as well as counts
3 and 4 together for sentencing purposes.
[6]
Mr Reyneke, on behalf of the accused, submitted that the order in
paragraph (e) above is incompetent.
[7]
Section 282
of the
Criminal Procedure Act 51 of 1977
reads as
follows:
“
Whenever
any sentence of imprisonment, imposed on any person on conviction for
an offence, is set aside on appeal or review and
any sentence of
imprisonment or other sentence of imprisonment is thereafter imposed
on such person in respect of such offence
in place of the sentence of
imprisonment imposed on conviction, or any other offence which is
substituted for that offence on appeal
or review, the sentence which
was later imposed may, if the court imposing it is satisfied that the
person concerned has served
any part of the sentence of imprisonment
imposed on conviction, be antedated by the court to a specified date,
which shall not
be earlier than the date on which the sentence of
imprisonment imposed on conviction was imposed, and thereupon the
sentence which
was later imposed shall be deemed to have been imposed
on the date so specified.”
[8]
It is clear that
section 282
may not be utilised by a trial court.
It may only be used when a sentence is substituted on appeal or
review. The court
a
quo
was not dealing with an appeal or a review. I agree that the
order purportedly made in terms of
section 282
ought to be set
aside. The court
a
quo
erred. We are at liberty to reconsider the sentence in light of
the negative implications of setting aside paragraph (e)
of the court
a
quo’s
sentence.
[9] Mr Reyneke submitted
that we should reduce all the periods with 3 years. The effect
of his suggestion would be that accused
2 and 3’s sentences
would be as follows:
Counts
1 and 2
7 years’ imprisonment
Counts
3 and 4
7 years’ imprisonment
Count
5
12 years’ imprisonment
In
respect of accused 4 it would be
Counts
1 and 2
2 years’ imprisonment
Counts
3 and 4
2 years’ imprisonment
Count
5
7 years’ imprisonment
of
which half is suspended for 5 years.
We
should then order that the sentences run concurrently and ante date
them to the date of sentence.
[10]
Mr Mthethwa, on behalf of the respondent, initially submitted that
the sentences without the impugned order would still be
appropriate.
He however conceded that the court
a
quo
wanted to give recognition for the time that the accused were in
custody awaiting the finalisation of the trial.
[11]
The court
a
quo
was aware of the fact that the convictions on counts 3 and 5
triggered the provisions of
section 51
of Act 105 of 1997. The
court
a
quo
however found that there were substantially and compelling
circumstances which warranted the imposition of lesser sentences.
Although the court
a
quo
did not enter those circumstances on the record of the proceedings
there is no appeal against that finding.
[12]
The court
a
quo
was also aware that imprisonment of a minor is a last resort and not
a first choice. Mr Reyneke did not make any submission
against
the imposition of direct imprisonment in respect of accused 4.
[13]
It is clear from the court
a
quo
’s
judgment on sentence that it wanted to ameliorate the cumulative
sentences by subtracting the period that the accused spent
in prison
awaiting the finalisation of the trial. Mr Reyneke’s suggestion
that each of the periods should be reduced by three
years does not do
justice to the court
a
quo’s
intention. The court a
quo
determined the appropriate sentence for each count and that should be
respected. It is therefore only the cumulative effect of
the sentence
that should be adjusted. That can be achieved by reducing the anchor
sentence only.
[14]
The effect of setting aside the impugned order would be that the
effective sentence of each of the accused would be increased
by 2
years and 10 months. This would be unfair as it would rob them
of a benefit which the trial court wanted them to enjoy.
[15]
The state did not appeal against the sentence and order. It was
satisfied that the court
a
quo
considered all the relevant factors. In my view the court
a
quo
considered all the relevant factors but used a wrong tool in its
attempt to repair an injustice.
[16]
As stated above, Mr Reyneke submitted that we should sentence the
accused to the same effective periods as the court
a
quo
did, less the awaiting trial period. He however urged us to
deduct 3 years from the sentence instead of 2 years and 10 months.
I
agree. It is practical to round the period off. The time spent
waiting for the finalization of the trial should not be the subject
of an exact mathematical calculation. The merits of each case and the
circumstances of each accused must be assessed in determining
the
extent to which the sentence should be reduced. The State and society
would also not be substantially prejudiced by the reduction
of the
sentence with a further two months. See S v Vilakazi
2012 (6) SA 353
(SCA) at paragraph 60 and S v Radebe
[2014] JOL 31565
(SCA) at
paragraph 13.
[17]
The suspended sentence in respect of accused 4 should also be
clarified and corrected because the sentence of the court
a
quo
does not contain conditions of suspension or a period of suspension.
[18]
I therefore make the following order:
Accused
2 and 3 are sentenced as follows:
Counts
1 and 2 are taken together for sentencing purposes - 10 years’
imprisonment.
Counts
3 and 4 are taken together for sentencing purposes -10 years’
imprisonment
Count
5 – 12 years’ imprisonment.
The
sentences on counts 1 to 4 should run concurrently with the sentence
on count 5. The sentences are antedated to 26 February
2016.
Accused
4 is sentenced as follows:
Counts
1 and 2 are taken together for sentence purpose – 2 years’
imprisonment.
Counts
3 and 4 are taken together for sentences purposes- 2 year’s
imprisonment.
Count
5 – 10 years’ imprisonment of which 8 years is suspended
for 5 years on condition that the accused is not convicted
of murder
or robbery with aggravating circumstances committed during the period
of suspension.
The
sentences on counts 1 – 4 to run concurrently with the sentence
on count 5.
The
sentence is antedated to 26 February 2016.
_____________
C.
J. MUSI, J
I
agree.
____________________
M.
B. MOLEMELA, JP
I
agree.
_______________
K.
J. MOLOI, J
On
behalf of the appellants: Mr. J. D. Reyneke
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. S. Mthethwa
Instructed
by:
Director:
Pubic Prosecutions
BLOEMFONTEIN
/eb