About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2018
>>
[2018] ZASCA 164
|
|
Ntuli v The State (457/2018) [2018] ZASCA 164 (29 November 2018)
SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 457/2018
In
the matter between:
LEONARD
THANDLIBUFILE
NTULI APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Leonard Thandlibufile Ntuli v The State,
(457/2018)
[2018] ZASCA 164
(29 November 2018)
Coram:
Tshiqi, Swain and Dambuza JJA, Mokgohloa, and Mothle AJJA
Heard:
01 November 2018
Delivered:
29 November 2018
Summary:
Criminal Procedure – sentence – failure to warn an
accused person of the applicability of the Criminal Law Amendment
Act
– failure not resulting in unfair trial – leave to appeal
to high court against sentence imposed by regional court
refused.
ORDER
On
appeal from:
Gauteng Division of the High Court, Pretoria (Murphy
J
sitting
as appeal court on petition)
The
appeal against the order of the court a quo granted on the 18 April
2006, refusing leave to the appellant to appeal against
the sentences
imposed in the regional court for the district of Gauteng held at
Springs, is dismissed.
JUDGMENT
Mokgohloa
AJA (Tshiqi, Swain and Dambuza JJA and Mothle AJA):
[1]
The appellant was convicted in the regional court, Springs (trial
court), of attempted theft (count 1), four counts of robbery
with
aggravating circumstances (counts 2, 3, 5 and 6), and one count of
theft (count 4). He was sentenced to four years’
imprisonment
in respect of attempted theft, 15 years’ imprisonment on each
count of robbery with aggravating circumstances,
and six years on a
count of theft. The sentences on count 1, 4, 5 and 6 were ordered to
run concurrently with the sentence on count
3. The effective sentence
was therefore 30 years’ imprisonment.
[2]
The appellant unsuccessfully applied to the trial court on 19 July
2005, in terms of s 309 B of the Criminal Procedure Act 51
of 1977
(the CPA) for leave to appeal against both conviction and sentence to
the Gauteng Division of the High Court, Pretoria
(the high court). On
the 18 April 2006, the appellant unsuccessfully petitioned the high
court, in terms of s 309 C of the CPA,
for leave to appeal against
conviction and sentence. Thereafter, the appellant successfully
applied to the high court (Murphy J),
for leave to appeal to this
court against the refusal of leave, but only in respect of sentence.
[3]
In S V
Khoasasa
[1]
it was held that a
petition for leave to appeal to a high court in terms of s 309C of
the CPA was in effect an appeal against the
refusal of leave to
appeal by the magistrates court in terms of s 309 B of the CPA. The
court concluded that such refusal of leave
to appeal by the high
court was a ‘judgment or order’ of the high court as
contemplated in ss 20(1) and 20(4) of the
Supreme Court Act (the SC
Act)
[2]
, given by the high court
on appeal to it. Accordingly, in terms of s 20(4)(b) of the SC Act
the refusal of leave to appeal by the
high court, was appealable to
this court with the leave of the high court (being the court against
whose order the appeal was to
be made) or where leave was refused,
with the leave of this court. The order appealed against was the
refusal of leave with the
result that this court could not decide the
appeal itself.
[4]
As
pointed out by this court in S v Matshona
[3]
,
the issue to be determined is not whether the appeal should succeed
but whether the high court should have granted leave, which
in turn
depends upon whether the appellant could be said to have reasonable
prospects of success on appeal.
[5]
The
provisions of the SC Act are applicable to the appeal, and not the
provisions of the Superior Courts Act 10 of 2013 (the Act),
which
repealed the SC Act as from 23 August 2013. Although the High Court
granted leave to the appellant to appeal to this court
against
sentence on 5 November 2014, after the repeal of the SC Act, the
appellant filed his application for leave to appeal against
the
refusal of his petition in respect of sentence only, on 1 August
2012. In terms of s 52 of the Act the proceedings were therefore
pending as at the commencement of the Act, and had to be continued
and concluded as if the Act had not been passed. In S v Gonya
[4]
it was held that the reference to proceedings ‘pending in any
court’ in terms of s 52 of the Act, must include criminal
proceedings. In addition, in S v Carneiro
[5]
,
it was held that the operation of the Act could not be retrospective,
but prospective only.
[6]
The convictions and sentences arose from the following six separate
incidents and involved hijackings and thefts of motor vehicles
on
different dates. It is necessary to examine this evidence, in order
to determine whether the appellant has reasonable prospects
of
success on appeal to the High Court, in respect of the sentences
imposed.
[7]
On the evening of 26 August 2002 Mr Larry Learnford (Mr Learnford)
was driving his Toyota Hilux double cab vehicle. He arrived
at his
home and stopped in the driveway. As he opened the driver’s
door to exit the vehicle he was accosted by an armed unknown
man who
took the vehicle’s keys and his cellphone from him. A second
armed man appeared, demanded a firearm and instructed
him to lie down
on the drive way. Fortunately, Mr Learnford did not have a firearm.
The two men then drove off with his vehicle.
The vehicle was
recovered shortly thereafter by a tracking company with the face of
its radio having been stolen.
[8]
On the afternoon of 6 April 2002, Mr Andries Swanepoel had parked his
vehicle, a Volkswagen Jetta, in the street in Farrarmere,
Benoni. The
vehicle windows were closed and the doors were locked. Upon his
return, he noticed two men inside his vehicle. He shouted
at them and
they got out of the vehicle and ran away. They were picked up by
another motor vehicle, a blue Opel Kadet. He examined
his vehicle and
noticed that the electrical wires of the alarm had been tampered
with.
[9]
On the evening of 18 September 2002, Mr Leonard Nevel was driving
with his mother in a BMW motor vehicle. They had just stopped
in
front of their home when two armed men approached them and opened the
doors of the vehicle. The men took all their personal
belongings,
dragged them out of the vehicle and ordered them to lie down. The two
men then drove off in the vehicle which was recovered
that evening.
[10]
On 15 August 2003 Ms Suzette Henning parked her motor vehicle, a
Volkswagen minibus, at the Jan van Riebeeck School and went
to
collect her child. When she returned she saw her vehicle being driven
away. It was recovered later that day with its interior
damaged.
[11]
Two days later, on 17 August 2003 at midnight, Mr Roger Gumede was
driving his BMW motor vehicle and had stopped at a red robot.
Another
vehicle then drove past and stopped in front of his vehicle. An armed
man emerged from this vehicle, opened the door of
Mr Gumede’s
vehicle and ordered him out of it. He then noticed two further men,
armed with firearms. They demanded the keys
to his motor vehicle,
searched him, and took all his personal belongings. He was instructed
to lie down underneath his vehicle.
He refused. The three men then
entered his vehicle and drove off. The vehicle was recovered shortly
thereafter with the radio and
CDs missing.
[12]
On 12 December 2003 at 08:45, Ms Karin Keay was driving her BMW motor
vehicle, taking her mother home. She stopped in the driveway
of her
mother’s home and her mother alighted from the vehicle. As she
was reversing out of the driveway, an armed man approached
and opened
the driver’s door through the open window. He ordered her out
of the vehicle then drove off in it. She then noticed
a white
Mercedes Benz motor vehicle with men inside it, which drove off
together with her vehicle. It was recovered later that
day undamaged
with her personal belongings missing.
[13]
The
main ground of appeal raised for the first time on appeal was that
the trial court erred in sentencing the appellant in terms
of the
provisions of the Criminal Law Amendment Act (Minimum Sentences
Act)
[6]
because the charge sheet
made no reference to the Act. It was also contended that the trial
court failed to warn the appellant
of its applicability and
implications for him in respect of the sentences that may be imposed.
[14]
Counsel for the appellant argued that the failure to mention or
forewarn the appellant of the applicability of the provisions
of the
Minimum Sentences Act, resulted in a serious misdirection that
vitiated the proceedings and rendered the trial unfair in
respect of
sentence. Regarding the effective sentence of 30 years’
imprisonment, he contended that the sentence was shocking
and
disproportionate.
[15]
The respondent’s counsel conceded that the provisions of the
Minimum Sentences Act were not set out in the charge sheet.
He
however argued that the appellant’s counsel at the trial was
aware that the provisions of the Minimum Sentences Act were
applicable. In support of this submission, he referred to the record
where it was recorded that the appellant’s counsel had
addressed the trial court on whether there were any substantial and
compelling circumstances that justified a deviation from the
minimum
sentences to be imposed in terms of the Minimum Sentences Act. He
contended that no prejudice was suffered by the appellant
because his
counsel was, at all times during the trial, aware that the Minimum
Sentences Act was applicable.
[16]
As
regards the need to warn the accused of the applicability of the
Minimum Sentences Act, this Court stated the following in
Machongo
v S
[7]
:
‘
It is settled
that failure to forewarn or to mention the applicability of the
minimum sentence is a fatal irregularity resulting
in an unfair trial
in respect of sentence. The question is, having come to the
conclusion that a misdirection has been committed,
what next should
the appeal court do? The answer is and has always been that the
appeal court must consider the sentence afresh’.
[17]
However
the Constitutional Court in
MT
v S; ASB v S; September v S
[8]
stated:
‘
It is indeed
desirable that the charge sheet refers to the relevant penal
provision of the Minimum Sentences Act. This should not,
however, be
understood as an absolute rule. Each case must be judged on its
particular facts. Where there is no mention of the
applicability of
the Minimum Sentence Act in the charge sheet or in the record of the
proceedings, a diligent examination of the
circumstances of the case
must be undertaken in order to determine whether that omission
amounts to unfairness in trial. This is
so because even though there
may be no mention, examination of the individual circumstances of a
matter may very well reveal sufficient
indications that the accused’s
section 35(3) right to a fair trial was not in fact infringed.’
[18]
I agree with counsel for the respondent that the failure to warn the
appellant of the applicability of the Minimum Sentences
Act did not
render the proceedings unfair, because it is not clear how the
appellant could have conducted his defence differently
had he known
that the Minimum Sentences Act was applicable. I say so because the
evidence against the appellant was overwhelming.
His fingerprints
were found on several of the stolen vehicles and he was unable to
furnish an explanation for their presence, which
was reasonably
possibly true. His defence, was so fanciful that it was correctly
rejected by the trial court.
[19]
Regarding the severity of the sentence, the appellant submitted that
an effective sentence of 25 years’ imprisonment
would be
appropriate.
[20]
In
S
v Bogaards
[9]
the following was stated:
‘
Ordinarily,
sentencing is within the discretion of the trial court. An appellate
court’s power to interfere with the sentences
imposed by court
below is circumscribed. It can only do so where there has been an
irregularity that results in a failure of justice;
the court below
misdirected itself to such an extent that its decision on sentence is
vitiated; or the sentence is so disproportionate
or shocking that no
reasonable court could have imposed it.’
[21]
Robbery with aggravating circumstances of a motor vehicle is a
serious offence. The robberies in the present matter were committed
over a period of time and each count related to a different incident.
The victims were either followed to their homes or the robbers
lay in
wait for them. The appellant operated in a group, and several of the
members were armed during the robberies. The robberies
were well
planned using an additional vehicle to assist with a speedy getaway,
if necessary. All these facts show that the group
was organised and
the crimes were pre-planned.
[22]
In sentencing the appellant, the trial court took into consideration
his personal circumstances, the nature and seriousness
of the offence
as well as the interest of the society. It also took into account the
cumulative effect of the sentence and ameliorated
it by making an
order that certain sentences run concurrently.
[23]
There is accordingly no basis on which to find that the sentence
imposed by the trial court is disproportionate or shocking
and that
no other court would have imposed such a sentence. There is no
striking or disturbing disparity between the trial court’s
sentence and that which this Court would have imposed. This court
would accordingly not be entitled to readily interfere with the
sentence imposed by the trial court. The appeal against the refusal
by the high court to grant leave to the appellant to appeal
against
the sentence imposed by the regional court, must accordingly fail.
[24]
The following order is granted:
The
appeal against the order of the court a quo granted on the 18 April
2006, refusing leave to the appellant to appeal against
the sentences
imposed in the regional court for the district of Gauteng held at
Springs, is dismissed.
_______________
FE MOKGOHLOA
ACTING JUDGE OF
APPEAL
APPEARANCES
For
the Appellants: J M Mojuto
Instructed
by: Justice Centre, Bloemfontein
Justice
Centre, Pretoria
For
the Respondent: K van Rensburg
Instructed
by: Director of Public Prosecutions, Bloemfontein
Director
of Public Prosecutions, Pretoria
[1]
S v Khoasasa
2003 (1) SACR 123
(SCA) paras 14, 19-22
[2]
Supreme Court Act 59 of 1959
[3]
S v Matshona
2013 (2) SACR 126
para 4
[4]
S v Gonya [2016] ZASCA 34
[5]
S v Carneiro
2018 (1) SACR 197
(SCA) para 7
[6]
Criminal Law Amendment Act 105 of 1997
.
[7]
S v Machongo (20344/14)
[2014] ZASCA 179
(21 November 2014)
[8]
M T v S; A S B v S; September v S
[2018] ZACC 27
;
2018 (2) SACR 592
(CC);
2018 (11) BCLR 1397
(CC) para 40.
[9]
S v Bogaards
[2012] ZACC 23
;
2012 (12) BCLR 1261
(CC); 2013 (1) SACR
(CC) para 41.