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[2016] ZAECBHC 1
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Mpulampula v S - Appeal Judgment (CA&R7/15) [2016] ZAECBHC 1 (25 February 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, BHISHO
Case no.: CA&R
7/15
In
the matter between:
BUTSHA
MPULAMPULA
Appellant
and
THE
STATE
Respondent
APPEAL JUDGMENT
STRETCH J:
[1]
The appellant was
arraigned before the East London regional court. He pleaded
guilty to all the charges. He was sentenced
as follows:
a.
Counts 1 to 15:
contravening section 86(1) of the Electronic Communications and
Transactions Act 25 of 2002 (the Act): 12 months’
imprisonment
on each count (to run concurrently).
b.
Counts 16 and 17:
fraud: three years’ imprisonment in respect of each count.
c.
Count 18: contravening
section 86(4) of the Act: five years’ imprisonment.
d.
Count 19 was withdrawn.
e.
Counts 20 to 34:
contravening section 86(3) of the Act: 12 months’ imprisonment
on each count (to run concurrently with each
other and concurrently
with the sentences on counts 1 to 15).
[2]
The effective period of
imprisonment is 12 years.
[3]
The penalty provisions
of the Act stipulate a fine or a maximum period of 12 months’
imprisonment per count for a contravention
of section 86(1) or
section 86(3).
[4]
A person convicted of
an offence referred to in section 86(4) is liable to be fined or to
be sentenced to imprisonment not exceeding
five years.
[5]
This appeal is directed
at the gravity of the sentences imposed.
[6]
The appellant’s
grounds of appeal are that the regional magistrate erred and
misdirected himself in the following respects:
a.
He made a finding, in
the absence of evidence, that the appellant had committed the
offences for personal gain.
b.
He over-emphasised the
deterrent element of sentencing at the expense of other elements such
as prevention, reformation, retribution
and mercy.
c.
He expressed the view
that the Act fails to reflect the seriousness of these offences, nor
does it reflect the impact which the
commission of these offences
have on the community, and that it is hoped that the provisions would
be revised to bring them into
line with reality.
d.
He expressed the view
that the Act sent out a message to would-be offenders that commission
of these offences was worth the risk.
e.
He expressed the view
(in the absence of evidence to this effect) that the type of scamming
of which the appellant was guilty was
commonplace, and that people
invariably lost entire salaries due to this type of conduct.
f.
He expressed the view
(in the absence of evidence) that the appellant had been committing
these offences for some time, and that
it was unlikely that the
complainants referred to in the charge sheet were his only victims.
g.
He failed to consider
that the total amount with respect to the two fraud counts was R9
000,00.
h.
He did not take into
account the fact that it was essential for the appellant to
contravene section 86(4) for him to also commit
the two counts of
fraud.
i.
He ought to have taken
counts 16 and 17 together for sentencing purposes and ought to have
directed the resultant sentence to run
concurrently with that imposed
on count 18.
j.
He imposed the maximum
permissible period of imprisonment with respect to count 18 without
considering other options.
k.
The sentences are out
of touch with reality.
l.
He failed to attach
adequate or any weight to the fact that the appellant had pleaded
guilty, that he had shown remorse, and that
he had spent a year in
custody awaiting trial.
[7]
I do not intend
traversing each and every ground of appeal raised. Most of the
grounds are, in my view, not sufficiently serious
to justify this
court usurping the sentencing discretion of the trial court.
[8]
It is trite that a
sentence will not be altered on appeal unless it is found that no
reasonable man would have imposed it, or that
it is out of proportion
with the gravity or the magnitude of the offence, or that it invokes
a sense of shock or outrage, or that
the sentence is grossly
excessive or insufficient, or that the trial court failed to exercise
its discretion properly, or that
interference is in the interests of
justice. See by way of example
S
v Anderson
1963 (3)
SA 494
(A) at 495D-E;
Nevilimadi
v S
[2014] ZASCA 41
(unreported SCA case no 545/13, 31 March 2014) at [17].
[9]
In
S
v Bogaards
2013 (1)
SACR 1
(CC) the Constitutional Court crisply summarised an appeal
court’s power to interfere with sentences imposed as follows:
‘
It can only
do so where there has been an irregularity that results in a failure
of justice …’
[10]
Whilst it is so that a
sentencing court may find it useful to have regard to the sentences
imposed in other similar cases, each
case invariably has its own
peculiar circumstances, and other sentences should not be regarded as
anything more than guidelines
to be taken into account in the
exercise of the judicial discretion of sentencing (
Nikelo
v S
unreported, ECG
case no CA 10/2012, 5 April 2013 at [17]).
[11]
On the other hand, a
court’s failure to take into account the cumulative effect of a
long list of sentences may, in appropriate
cases, constitute a
material misdirection resulting in a disproportionately harsh
sentence (see
S v
Kruger
2012 (1)
SACR 369
(SCA) at [11]).
[12]
In the matter before
us, the regional magistrate indeed stated that he would take into
account the cumulative effect of the sentences
he intended imposing.
It is clear that he did so when he directed that the sentences
on all but three of the 33 counts ought
to run concurrently. However
the manner in which the Court thereafter dealt with the three
remaining counts, has, to my mind,
the effect of vitiating any
amelioration which may have resulted out of the order for the
concurrent running of the sentences for
most of the counts.
[13]
I say this because none
of the sentences on counts 16, 17 and 18 were ordered to run
concurrently, nor did the sentencing Court,
as correctly pointed out
by counsel, give any consideration to imposing anything less than the
maximum permissible period of imprisonment
on count 18.
[14]
The effect of this is
to neutralise what the regional magistrate purported to have achieved
by directing the concurrent running
of the other sentences.
[15]
In the light of this,
it seems to me at the very least that a perception has come about
that the Court below may have been inclined
to punish the appellant
in line with an expressed and unsubstantiated view that the appellant
had been committing these offences
for a long time, and that the
cited complainants were not his only victims.
[16]
In my view this,
considered together with the harsh cumulative effect of the
sentences, constitutes an irregularity which has resulted
in a
failure of justice, entitling this Court to sentence the appellant
afresh.
[17]
The order I propose is
the following:
The sentence on count 18
is set aside and is substituted with the following sentence:
“
Three
years’ imprisonment to run concurrently with the sentence on
count 17”.
I.T. STRETCH
JUDGE OF THE HIGH
COURT
25 February 2016
I agree, and it is so
ordered:
M. MAKAULA
JUDGE OF THE HIGH
COURT
APPEARANCES:
Counsel
for the appellant:
Mr
S.D. Slabbert
Instructed
by
J.H.
Slabbert Attorney
Durban
Locally
represented by:
B.
Macingwane Attorney
East
London
Counsel
for the respondent:
Mr
L. Makoyi
Instructed
by
the
Director of Public Prosecutions
Bhisho