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[2016] ZAKZPHC 8
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Zondi v S (AR 77/2015) [2016] ZAKZPHC 8 (9 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
Case
No: AR 77/2015
DATE:
09 FEBRUARY 2016
Not
Reportable
In
the matter between:
NTOKOZO
ZONDI
..................................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
Coram:
Gorven, Seegobin and Olsen JJ
Heard
:
25 January 2016
Delivered:
9 February 2016
ORDER
On
appeal from
KwaZulu-Natal Division of
the High Court, Pietermaritzburg (Radebe AJ sitting as court of first
instance):
1 The appeal
is upheld and the sentence of the appellant is set aside and
substituted with the following sentence:
‘
The
accused is sentenced to 10 years’ imprisonment.’
2 The
sentence will run with effect from 15 July 2010.
JUDGMENT
Gorven
J (Seegobin & Olsen JJ concurring):
[1]
The appellant was one of five persons
charged with a number of offences, including one count of murder and
one of robbery with aggravating
circumstances, all of which took
place on 22 June 2006. He pleaded not guilty to the counts
confronting him and elected not to
disclose his defence. At the
conclusion of the trial he was acquitted of all but the count of
robbery with aggravating circumstances.
One of the accused received a
discharge at the close of the state case. Three of his co-accused
were convicted of murder, robbery
with aggravating circumstances and
the unlawful possession of firearms and ammunition. They were each
sentenced to life imprisonment
in respect of the murder and 15 years’
imprisonment in respect of the robbery with aggravating
circumstances. The appellant
was sentenced to 15 years’
imprisonment. In terms of s 276B of the
Criminal
Procedure Act 51 of 1977 (
the Act), the
trial court directed that the appellant would not qualify for parole
until he had served two thirds of his sentence.
All four of the
convicted accused persons applied for leave to appeal to the trial
court in respect of their convictions and sentences
but this was
refused. The appellant was granted leave to appeal against his
sentence only by the Supreme Court of Appeal.
[2]
The circumstances in which the crimes took
place were as follows. A group of the accused not including the
appellant had set out
to rob a shop at the Southgate Shopping Centre
in Pietermaritzburg. They abandoned this plan on arrival because the
security presence
was too high. Later that morning, that group met up
with the appellant and two of his friends, Zakhele and Ntshangase,
near the
public toilets at Market Square in Pietermaritzburg. Zakhele
suggested that they rob the Pelham Bottle Store. The augmented group,
including the appellant and his friends, went to the bottle store in
a VW kombi. Some of the group entered the bottle store, pushing
the
security guard inside. The appellant, whilst still outside, heard a
gunshot from within. A person emerged from the bottle store
but was
grabbed and pushed back into the store by one of the group and the
appellant followed them inside. On entering, they saw
a man lying on
the floor in a pool of blood and a woman kneeling next to him crying
hysterically while accused one pointed a firearm
toward them. Another
of the group had also produced a firearm. The appellant and others
helped themselves to money from a safe
in a small office. They then
left the bottle store and separated, later meeting up at Sophie’s
Tavern in Imbali. There the
spoils were divided.
[3]
As I have indicated, the trial court
imposed a non-parole period under s 276B of the Act. This
section reads as follows:
‘
(1)(
a
)
If a court sentences a person convicted of an offence to imprisonment
for a period of two years or longer, the court may as part
of the
sentence, fix a period during which the person shall not be placed on
parole.
(
b
)
Such period shall be referred to as the non-parole period, and may
not exceed two thirds of the term of imprisonment imposed or
25
years, whichever is the shorter.
(2) If a
person who is convicted of two or more offences is sentenced to
imprisonment and the court directs that the sentences of
imprisonment
shall run concurrently, the court shall, subject to subsection
(1)(
b
), fix the non-parole period in respect of the effective
period of imprisonment.’
It has
been held that, before invoking this section, a court must ‘determine
whether there are exceptional circumstances that
imperatively call
for the invocation’ of the section.
[1]
If so, the length of the non-parole period must be considered. In
these circumstances, the parties are entitled to address the
sentencing court in respect of both considerations.
[2]
In the present matter, the trial court did not afford the appellant
the opportunity to address it on these considerations before
imposing
the non-parole period. The failure to do so constitutes a material
misdirection. In addition, the trial court did not
point to any
exceptional circumstances which motivated the imposition of a
non-parole period. This court is therefore at large
to impose an
appropriate sentence on appeal.
[4]
The offence of which
the appellant was convicted attracts a minimum sentence of 15 years’
imprisonment under the provisions
of section 51(2) of the Criminal
Law Amendment Act 15 of 1997 (the CLA Act) read with Part II of
Schedule 2 to the CLA Act. Section
51(3) allows a court to impose a
lower sentence than the prescribed minimum if the court is satisfied
that substantial and compelling
circumstances exist which justify
this. In
S v
Malgas
[3]
,
the Supreme Court of Appeal summarised the approach to take in this
enquiry as follows:
‘
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime,
the criminal and the needs of society, so that an injustice
would be done by imposing that sentence, it is entitled to impose a
lesser sentence.’
[4]
[5]
It can therefore be seen that the
traditional factors relating to the crime, the criminal and the needs
of society must be evaluated
and then compared to the prescribed
minimum sentence. It hardly needs saying that the cold-blooded
robbery of a bottle store in
broad daylight is a very serious
offence. What must be borne in mind, however, is that the trial court
found that it was not proved
that the appellant was aware that his
fellow assailants were carrying firearms in order to carry out the
robbery. This was the
basis on which the appellant was acquitted on
the count of murder. His first knowledge of the presence of firearms
came when he
heard the shot. It must be said that, at that point, it
can be considered that the appellant ought to have left rather than
enter
the bottle store and remove money from the safe. I shall return
to this aspect later.
[6]
The needs of society have, at least in one
respect, been addressed by the promulgation of the CLA Act. A
democratically elected
legislature has determined that crimes such as
this must be treated very seriously. However, society undoubtedly
benefits from
an offender who rejoins it as a productive and positive
member, having turned his back on a life of crime. The potential for
rehabilitation
is therefore a crucial consideration.
[7]
The personal circumstances of the appellant
are somewhat unusual in matters such as this. He was barely 18 years
old at the time
the offence was committed. He was in the company of
older persons who were clearly inured to a life of crime and had
already embarked
on a plan to rob another store elsewhere. He was a
first offender. It seems highly likely that he was caught up in their
plan and
carried along under the influence of these people. As
regards his decision to enter the bottle store after hearing a shot,
it must
be considered that, in those circumstances, he may well have
felt himself unable to dissociate from the group at that point.
[8]
The appellant was in Grade 12 at school
when the offence was committed. He thereafter passed grade 12 and
enrolled for a two-year
diploma course in the computing area. Having
successfully completed this course, he enrolled for a two-year course
in computers
at the Durban University of Technology. He was in the
first year of this course when he was sentenced. His productive life
after
the commission of the offence and his relative youth supports
an inference that he had prospects of rehabilitation. There is a
basis for hope that, on his release, he will become a productive, law
abiding member of society. His involvement in the offence
should
therefore be regarded as something of an aberration.
[9]
In these circumstances, it seems clear to
me that, to impose the prescribed minimum sentence would result in an
injustice to the
appellant. This means that substantial and
compelling circumstances exist to impose a sentence of less than 15
years’ imprisonment.
Having said that, the circumstances as a
whole warrant a lengthy term of imprisonment. In my view an
appropriate sentence would
be one of 10 years’ imprisonment.
[10]
In the result the following order is made:
1 The appeal
is upheld and the sentence of the appellant is set aside and
substituted with the following sentence:
‘
The
accused is sentenced to 10 years’ imprisonment.’
2 The
sentence will run with effect from 15 July 2010.
GORVEN
J
DATE
OF HEARING: 25 January 2016
DATE
OF JUDGMENT: 9 February 2016
FOR THE APPELLANT: D Barnard, instructed by the
Pietermaritzburg Justice Centre
FOR
THE RESPONDENT: M Miza, instructed by the Director of Public
Prosecutions, Pietermaritzburg, KwaZulu-Natal.
[1]
S v Mthimkulu
2013 (2) SACR 89
(SCA) para
18.
[2]
S v Stander
2012 (1) SACR (SCA) para 22.
[3]
S v Malgas
2001 (2) SA 1222
(SCA).
[4]
Paragraph 25.