About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2016
>>
[2016] ZAECBHC 17
|
|
Ndlovu v The State (CA&R14/2016) [2016] ZAECBHC 17 (8 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, BHISHO
Case No.: CA&
R 14/2016
Reportable
Yes
/ No
In
the matter between:
SINDISIWE
CRESENTIA ALBERTO
NTSOKANA
NDLOVU
Appellant
and
THE STATE
Respondent
APPEAL JUDGMENT
NTLAMA
AJ
[1]
This is an appeal against the sentence that was imposed by the
Regional Magistrate Court, Mdantsane
in relation to the crimes of
contravening the provisions of the
Immigration Act 13 of 2002
as
amended (Immigration Act), kidnapping and attempted extortion, of
which the appellant was found guilty and convicted.
[2]
The brief facts of the case are as follows: The appellant is a
32 year-old Mozambican national
that entered the Republic of South
Africa
(Republic)
illegally
to find work. Upon entering the Republic, she was employed as a
child-minder by the parents of a 3 year old girl
in Mdantsane.
Within two weeks of her employ, she kidnapped the child and
left with her for Mozambique. Upon her arrival
in Mozambique,
the child’s mother received a call from a man known to the
appellant as ‘Seven’, demanding a ransom
of R500 000
which was later reduced to R120 000 as she could not afford the
amount they initially wanted. In this period,
the parents were
severely traumatized as they did not know what would happen to their
child. Mr ‘Seven’ would,
on occasion, call them and
let the child cry over the phone for her ‘Daddy to come pick
her up’. The anguish
went on for a month, from 3 August
to 3 September (2015) before the child was finally rescued and
brought back to them.
[3]
During this saga, the appellant left Mozambique, leaving the child in
the care of ‘Mr Seven’
and headed for Johannesburg where
she was arrested by the South African Police Service (SAPS) working
at a certain tavern. Upon
her arrest, she co-operated with the
SAPS and took the police back to Mozambique to fetch the child where
the child was found unharmed
and returned to the parents.
4
The appellant was then charged first, for entering the Republic
illegally by contravening
section 49(1)
as read with
section 1
,
9
to
23
of the
Immigration Act. Secondly
, for the crime of
kidnapping, as read with
sections 256
and
270
of Criminal Procedure
Act 51 of 1977 (CPA), and lastly, for attempted extortion read with
sections 256 and 270 of the CPA and section90
of the Magistrates’
Court Act 32 of 1944 (Magistrates Court Act).
[5]
She pleaded guilty to all the charges and was convicted on all
counts. She was then sentenced
to 3 months imprisonment for
entering the Republic illegally, 15 years for kidnapping and 5 years
for attempted extortion. Effectively,
she was sentenced to 20 years,
three months imprisonment. She appeals against the sentence
only in respect of Count 2 (kidnapping)
and Count 3 (attempted
extortion). Leave to appeal was granted by the trial court
without any additions to the reasons for
the sentence.
Issues
[6]
The appeal is based on the grounds that the trial court:
(a)
Erred
by not considering her personal circumstances as she was:
(i)
a
first offender.
(ii)
remorseful.
(iii)
has
a minor child (11 year old).
(iv)
had
a difficult upbringing and the reasons that brought her into South
Africa.
(b)
Misdirected
itself by not considering the local jurisprudence relating to the
crime of kidnapping as it was based on international
law.
(c)
Was
not merciful towards her because the child was returned unharmed.
(d)
Put
greater emphasis on the crime as opposed to the impact of the
sentence on her; and
(e)
The
cumulative sentence was shockingly inappropriate.
[7]
The basic question that emanates from these grounds of appeal as
raised in
S
v Pieters
[1]
judgment is whether the
‘
trial
court could have reasonably imposed the sentence which it did’
.
[2]
It is evident from
Pieters
that the standard principle regarding appeals on sentence is that the
appellate court cannot interfere with the sentence unless
the trial
court has not exercised its discretion in a judicial manner. The
appellate court is therefore precluded from interfering
with the
sentence of the trial court unless there is a
‘
material
misdirection’
which
warrants such interference in order to protect the integrity of the
judicial process. Various terms such as a ‘sense
of
shock, disturbingly inappropriate, striking disparity’ have
been established to determine whether the appellate court
would have
imposed the sentence if it was the trial court.
[3]
These terms require a deeper analysis to determine whether the
imposed sentence induces a sense of shock as opposed to the
same
offence that was decided by another court. This is the
‘
safety
valve’
of
the judicial proceedings that seek to ensure the exercise of the
court’s judicial discretion in a reasonable way. In
essence, the principle of
‘
non-interference’
eliminates
the seizing of the authority that is not vested in the appellate
court in the absence of
‘
material
misdirection’
by
the trial court.
[8]
It is therefore, of great significance not to read the principle of
‘material misdirection’
in isolation. It has to be
conceptualised within the context of considering the impact of the
sentence on the offender, the
offence itself and the public
interests. These three-tier factors are traceable from
S
v Zinn
[4]
as they affirm the purpose of sentencing. Their significance
entails that in the process of imposing the sentence, the court
has
to strike an appropriate balance that seeks to ensure that it
considers what is just and appropriate.
[9]
The appropriateness of the sentence within the context of the
three-tier factors affirms the importance
of the impartiality of the
judicial officer without being clouded by ‘revenge’.
[5]
It is this context that requires the determination of whether the
magistrate in this case was not clouded by vengeance. The foundation
for such an endeavour has long been laid down in
S
v Rabie
[6]
where the court held:
“
a
judicial officer should not approach punishment in a spirit of anger
because, being human, that will make it difficult for him
to achieve
that delicate balance between the crime, the criminal and the
interests of society which his task and objects of punishment
demand
of him. Nor should he strive after severity, nor, on the other hand,
surrender to misplaced pity. While not flinching from
firmness where
firmness is called for, his should approach his task with a human and
compassionate understanding of human frailties
and the pressures of
society which contribute to criminality. It is in the context of this
attitude of mind that I see mercy as
an element in the determination
of the appropriate punishment in the light of the circumstances of
the particular case”
.
[7]
[10]
Sentencing which is classified as a
‘
lonely
and onerous task’
[8]
is
the major difficulty that is faced by judges after having assessed
the evidence presented before the court. Judges have
to
determine the applicable law and interpret it in a way that gives
meaning and substance to the facts placed before the court.
In
essence, the judges determine the legal principles applicable in a
particular matter in order to find a suitable sentence
that
‘
fits’
the
crime that has been committed.
[9]
It is therefore imperative that I assess whether the magistrate
has balanced the imposition of the sentence against the factors
needed to be taken into account in the sentencing of the appellant.
The
merits of the appeal
[11]
It is deduced from the trial court record that the magistrate had
considered the three-tier factors
(offender,
offence and interests of the society)
on
sentencing the appellant in assessing whether there existed
‘
substantial
and compelling circumstances’
which
warranted lesser sentences. He concluded that the appellant’s
circumstances are outweighed by the gravity of the
offence that she
committed and the purpose which is sought by the impact of the
imposition of sentence. The magistrate therefore,
gave
consideration to all the other circumstances impacting on the
appellant and balanced them against the legitimate interests
of the
society. This means that the trial court was not blinded by the
atrociousness of the crime but went through a well-thought
reasoning
in arriving at an appropriate sentence within the limits prescribed
by law.
[12]
It is therefore, my view, that the conspectus of relevant factors
does not justify a lesser sentence because the
court was justified in
its emphasis on the seriousness of the offence and the purpose which
is sought by sentencing as opposed
to the impact of the sentence on
the offender. The appellant’s conduct impacted on the
psychological development of
the child as linked to her right to
human dignity which is both a justiciable right
(section
10 of the Constitution)
and foundational value
(section
1 of the Constitution)
.
[10]
[13]
In this case, kidnapping is given due legislative recognition by its
inclusion in the CPA as a punishable offence.
This is the
indication of the strides taken by the legislature in developing laws
that seek to regulate human conduct. It
further shows the
seriousness of the crime of kidnapping that needed legislative
intervention in order to also address the underlying
causes of the
crime in question. In essence, its legislative recognition was
not taken in a vacuum because the high levels
of crime appear to
escalate every day. The question of whether the law may reduce
the increase in crime is not the subject
of this appeal but an
argument for another day.
[14]
Also, it is worth to highlight that remorse, her co-operation with
the police, return of the child unharmed and
pleading guilty to the
charges should not be clouded by regret because the appellant was
caught and there was overwhelming evidence
against her. These are not
legitimate grounds for a lighter sentence considering the impact of
the crime itself on the child. Remorse
was contextualised in
S
v Seegers
[11]
when the court held that:
“
[it
is] an indication that the offence will not be committed again, is
obviously an important consideration, in suitable cases,
when the
deterrent effect of a sentence on the accused is adjudged. But, in
order to be a valid consideration, the penitence must
be sincere and
the accused must take the court fully into his confidence. Unless
that happens the genuineness of contrition alleged
to exist cannot be
determined”
.
[12]
[15]
The South African courts are developing jurisprudence relating to the
concept of
“
remorse”
where
they emphasise that it should be carefully distinguished from the
fact that the appellant regrets her actions and does not
have any
genuine reason to justify her conduct. Ponnam JA in
S
v Matyityi
[13]
had alluded to this fact and held that:
“
there is,
moreover, a chasm between regret and remorse. Many accused
persons might well regret their conduct but that does
not without
more translate to genuine remorse. Remorse is a gnawing pain of
conscience for the plight of another. Thus
genuine contrition
can only come from an appreciation and acknowledgement of the extent
of one’s error. Whether the
offender is sincerely
remorseful and not simply feeling sorry for himself or herself at
having been caught is a factual question.
It is to the
surrounding actions of the accused rather than what he says in court
that one should rather look. In order
for the remorse to be a
valid consideration, the penitence must be sincere and the accused
must take the court fully into his or
her confidence. Until and
unless that happens the genuineness of the contrition alleged to
exist cannot be determined. After
all, before a court can find
that an accused person is genuinely remorseful, it needs to have a
proper appreciation of inter alia:
what motivated the accused to
commit the deed; what has since provoked his or her change of heart;
and whether he or she does indeed
have a true appreciation of the
consequences of those actions”.
[14]
[16]
In this case, the motive for the commission of the offence is not a
legitimate reason that is justified by her
difficult upbringing. The
appellant has made it equivocally clear that she came to South Africa
for socio-economic emancipation.
She was fortunate to get the
job in order to fulfil her dreams. On top of that, she was
brought in as a
‘
sleep-in
nanny’
within
two weeks of being employed. It is deduced from her employer’s
conduct that they trusted her and gave all their
lives to her by
looking after their child. However, it is clear from the
evidence that she was motivated by greed which resulted
in her
kidnapping the child for attempted ransom of money. It is
therefore my view that the appellant just regretted her
conduct and
was not truly remorseful.
[17]
The emphasis on international law as opposed to
‘
home-grown
jurisprudence’
regarding
kidnapping is another factor that needs a comment. The
magistrate did not misdirect himself in putting emphasis
on
international and foreign law. This is the mandate that is
deduced from the Constitution itself. Section 39(1)(b)&(c)
thereof provides that the courts must consider international law and
gives discretion to the courts to consider foreign law in
the
interpretation of the Bill of Rights. This provides an
opportunity for the infusion of international law into domestic
law
to ensure the integration of the lessons from the international
community into domestic law or
vice-versa
.
Hence Chaskalson P in
Makwanyane
held that:
“
the
international and foreign authorities are of value because they
analyse arguments for and against the death sentence and show
how
courts of other jurisdictions have dealt with this [contentious]
issue. For that reason alone they require our attention.
They
may also have to be considered because of their relevance to section
35(1) of the Constitution, … Customary international
law and
the ratification and accession to international agreements is dealt
with in section 231 of the Constitution which sets
the requirements
for such law to be binding within South Africa. In the context of
section 35(1), public international law would
include non-binding as
well as binding law.
They
may both be used under the section as tools of interpretation.
International agreements and customary international law
accordingly provide a framework within which Chapter [Two] can be
evaluated and understood …
”
.
[15]
[18]
It is my view that in as much as local jurisprudence is of great
significance in the determination of the cases,
it should also be
borne in mind that the
‘
silent
rules of adjudication’
should
not be used as a yardstick against which to determine which law
(domestic
or international)
carries
more weight than the other in resolving a particular impasse,
especially in the context of the new constitutional dispensation.
It
is also acknowledged that the doctrine of
‘
precedent’
is
the gist of the judicial process but it is further affirmed that as
considerably as it is so, each case is judged according to
its own
merits. The general impression of the trial court on the
emphasis on international law as opposed to domestic jurisprudence
in
relation to the crime of kidnapping has caused him to establish a
‘
lens’
in
order to draw comparative lessons on the seriousness of the offence.
This, accordingly, cannot be classified as a
‘
material
misdirection’
which
warrants interference by the appellate court in the development of
the elements of the crime of kidnapping.
[19]
The contention in respect of the
‘
inappropriate
sentence’
relating
to the same offence handed down in other jurisdictions warrants a
comment as well. I am not persuaded by the appellant’s
contention that the sentence of 15 years imprisonment regarding
kidnapping is
‘
shockingly
inappropriate’
and
warrants interference by this Court. The reason for my
conviction is based on the fact that inconsistency in sentence
imposed by different courts in respect of the same crime does not
necessarily mean it sends a sense of shock and warrants interference.
As stated in
Engelbrecht
v State
[16]
the fundamental question in relying on the argument is whether the
‘imposed sentence on the specific appellant under consideration
is disturbingly inappropriate and whether the trial court misdirected
itself regarding the specific sentence under appeal’.
[17]
[20]
It is therefore, my view that the fact the appellant is not praying
for a
‘
non-custodial
sentence’
but
for an
‘
appropriate’
one is her
acknowledgment of the seriousness of the offence. It is a
further admission on the broader factors that have to
be taken into
account on sentencing: offender, offence and public interests. It
is also evident from the facts of this case
that the appellant
appreciated the wrongfulness of her conduct. She lied to her
aunt and alleged that the child belonged
to her boyfriend, leaving
not only Mozambique, but the child with a stranger about whom she
knew no more than that he was called
‘Seven’, to seek
work in Johannesburg. She was not concerned about the health
and well-being of the child and
further collaborated with ‘Seven’
to extort money from the parents before she was arrested. There
was a clear
intention to induce the child’s parents to give
money that was not due to her. The fact that the appellant did
not
agree with ‘Mr Seven’ on the amount to be extorted
does not lessen her culpability for the crime of attempted extortion.
These factors are indicative of her cold and calculating state
of mind and warranted the sentence imposed by the trial court.
[21]
In line with the argument made above, her offence touch on the
substantive conception of the supremacy of the Constitution
1996 as
entrenched in section 2 by compromising the best interest of the
child as envisaged in section 28(2). These rights
are directly
linked to parental rights and responsibility which was equally
undermined by her conduct. It is worth to emphasise
that the
direct relationship between the parents and the child had long been
laid down in
President
of the Republic of South Africa v Hugo
.
[18]
Although this case challenged the Proclamation passed by
President Nelson Mandela, which at face value had a discriminatory
impact on men, it endorsed the importance of the relationship between
the parents and the child. It is this relationship
that the
appellant compromised which might have ramifications for the future
as the girl’s father alluded to in court when
giving evidence
on the impact of the kidnap of their child on them wondering whether
they will ever see her alive again.
[22]
In this case, the appellant has acted in a manner that disregarded
the psychological well-being of the child. Her
leaving of the
child in Mozambique with a strange man is a clear indication of the
disrespect of the rights of the child as envisaged
in South Africa’s
1996 Constitution. Also, t
he
defence’s argument that this type of crime is
‘
not
prevalent in our area’
is
very flawed. It constitutes contempt of the fundamental values
of the new dispensation which lay the foundation for leaving
in a
crime free society. One incident of this nature which show the
seriousness of the offence is evident in
Mcasa
& Another v S
[19]
just nearby in Umtata which also involved the crime of kidnapping for
ransom.
[23]
I am accordingly of the view that 15 years imprisonment for
kidnapping fits within the framework of the sentence
imposed upon the
appellant. The cases which the defence has referred to in
support of their contention for a lesser sentence
are distinct from
the facts that are linked to the appellant. The
interests of justice do not require interference
by this
court
with the sentence of 15 years imprisonment.
[24]
In respect of count 3 it was submitted by Counsel that the sentence
of 5 years should be ordered to run concurrently
with the 15 years
imposed in count 2. While the two crimes constitute separate
offences each with its own elements, on the
facts of the case they
are closely related in that the kidnapping was committed in order to
facilitate the attempt to extort monies
from the child’s
parents. That being so, I am of the view that it is an
appropriate case where the two sentences should
be ordered to run
concurrently.
[25]
For these reasons the appeal is allowed only to the extent that it is
ordered that the sentences imposed in respect
of counts 2 and 3 are
to run concurrently.
N
NTLAMA
ACTING
JUDGE OF THE HIGH COURT
I
agree.
D
VAN ZYL
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
Appearances:
For
Appellant:
Mrs N
Mtini instructed by Legal Aid Board
King William’s
Town
For 1
st
Respondent: Mrs C De
Kock instructed by National of Director of Public Prosecutions
-
Bhisho
Date
Heard:
02 December 2016
Date
Delivered: 08 December 2016
[1]
S v
Pieters
1987 (3) SA 717
(A) quoted in Joubert JJ (ed)
Criminal
Procedure Handbook
(2015)
11 ed, 407.
[2]
Pieters
719G-J.
[3]
Joubert (note
1 above) 407.
[4]
1969 (2) SA
537
(A). See also
S
v Selebi
SS (25/2009)
[2010] ZAGPHC 58
;
S
v Mqabhi
2015
(1) SACR 508
(GJ);
S
v Ngcobo
2016 (2) SACR (KZP).
[5]
S v Kruger
2012 (1) SACR 369 (SCA).
[6]
1975 (4) SA 855
(AD).
[7]
Rabie
866 quoted in
S v Luke and Others
(SS16/10)
[2012] ZAWCHC 9
para 3.
[8]
Hogarth J,
Sentencing
as a Human Process
(1971)
U. of Toronto P 5, Cited in
Stockdale
and Devlin on Sentencing
,
1987, 8 quoted in
S
v Malgas
2001
(3) ALL SA 220 (A).
[9]
Bozalek J in
S v Isaacs
SS38/2011.
[10]
Teddy Bear Clinic for Abused Children and Another v Minister of
Justice and Constitutional Development
and Another
2013
(12) BCLR 1429
(CC). The Court put emphasis on the psychological
development of the child.
[11]
1970 (2) SA
506 (A).
[12]
Seegers
511G-H
quoted in
Britz
v S
(889/2015)
[2016] ZASCA 86.
[13]
2011
(1) SACR 40 (SCA).
[14]
Matyityi
para 13 and footnotes omitted.
[15]
Makwanyane
paras 34-35.
[16]
Case No:
608/06.
[17]
Engelbrecht
para 10.
[18]
1997
(7) BCLR 708 (CC).
[19]
[2003]
JOL 11506
(SCA).