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[2016] ZAGPPHC 34
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Banda v S (A446/2015) [2016] ZAGPPHC 34 (29 January 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: A446/2015
DATE: 29 JANUARY 2016
In the matter between:
SIMON
BANDA
........................................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGEMENT
SEMENYA AJ
[1] The appellant was tried and
convicted in this Court in 1996 on two counts of murder and one of
robbery with aggravating circumstances
as intended in section 1 of
the Criminal Procedure Act 51 of 1977 (the CPA) with two co-accused.
[2] He was sentenced to thirty (30)
years imprisonment on each of the murder counts and twenty (20) years
on robbery with aggravating
circumstances charge.
It was ordered that the fifteen (15)
years' imprisonment sentence on the second murder count should, in
terms of section 280 (2)
of the CPA, run concurrently with the
sentence on count one of murder. His effective sentence was sixty
five (65) years imprisonment.
[3] All three accused immediately
brought an application for leave to appeal against conviction. The
application was refused. On
the 9 September 2014 the appellant
successfully applied for leave to appeal to this court against
sentence only.
[4] Counsel for the appellant
submitted, based on the decision in S v Mahlatsi
2013 (2) SACR 311
(SCA) that the effective sentence imposed on the appellant by the
trial court is cruel, inhuman, degrading and warrant intervention
by
the appeal court. He further argued that the sentence imposed can be
described as a Methuselah sentence (a beyond life sentence).
[5] Counsel for the Respondent conceded
that the cumulative effect of the sentences imposed by the trial
court is indeed inappropriate
and calls for interference by an appeal
court. She however argued that the gravity of the offences and the
circumstances under
which they were committed justify imposition of a
heavy sentence.
[6] The approach to be adopted by an
appeal court faced with an appeal against sentence has been
enunciated in 5 v Pillay
1977 (4) SA 531
(A) at 535 E-G as follows:
"The essential inquiry in an
appeal against sentence, however, is not whether the sentence was
right or wrong, but whether
the court in imposing it exercised its
discretion properly and judicially, a mere misdirection is not by
itself sufficient to entitle
the appeal court to interfere with the
sentence, it must be of such a nature, degree or seriousness that it
shows, directly or
inferentially, that the court did not exercise its
discretion at all, or exercised it improperly or unreasonably/'
[7] It appears from the record of the
proceedings that the trial court took into consideration the personal
circumstances of the
Appellant, the interest of the community and the
nature of the offences he was convicted of in an endeavour to
determine what a
proper sentence would be in the circumstances of
this case.
[8] The evidence presented in
mitigation of sentence was that the appellant was a 33 year old
married father of three children aged
3, 7 and 11 years. He was
employed with an income of R4800.00 per month. He also owned
immovable property. His wife was employed
as a Primary School
principal. From the above factors it can be deduced that the
appellant committed the offences out of greed.
He earned enough to
cater for the needs of his family.
[9] An additional factor found by the
trial court in aggravation of sentence was that the appellant was not
a first offender of
same such offence. He has previous conviction of
robbery and assault. It is this fact that persuaded the trial court
to impose
a heavier sentence on the appellant than the ones imposed
on his co - accused. This again influenced trial court in arriving at
a conclusion that a proper sentence would be the one that would
remove the appellant from society for a long period. I am unable
to
find any misdirection in the reasoning of the trial court in this
regard.
[10] The argument that a court should
guard against imposing a sentence which is cruel and inhuman as in
this case, originates from
section 12(1) (e) of the Constitution of
the Repubiic of South Africa 1996 (the Constitution) which provides
as follows:
"Everyone has the right to freedom
and security of person, which includes the right -
(e) not to be treated or punished in a
cruel, inhuman or degrading way."
[11] Whilst this right is entrenched,
it follows that what amounts to a cruel, inhuman and degrading
sentence will depend on the
facts of each particular case. The two
deceased persons in this matter were killed and robbed of an amount
of R23000 00 which they
had just collected from their business. I am
unable to imagine anything more cruel and inhuman than a senseless
and gruesome killing
of a father and a son in one incident, more so
for the sole purpose of taking what was rightfully and legally
theirs. This, in
any event, has the effect of robbing innocent, law
abiding citizens of their loved ones and breadwinners. It also
deprives children
of their right in terms section 28 of the
Constitution to parental care.
[12] I have already stated that I
concur with the trial court that the appellant and his co-accused
deserved to be removed from
the society. However, having said so, it
is also necessary to determine whether the trial court exercised its
discretion properly
by ordering that only a fifteen year term of
imprisonment on the second murder charge should run concurrently with
the thirty year
term imposed on first of the murder count. It appears
from the record that the trial court was alive to the need to take
into consideration
the cumulative effect of the sentence it was about
to impose. I nonetheless concur with the argument raised on behalf of
the appellant
that the effective .sentence imposed is still
inappropriately long.
[13] S v Brophy and Another
2007 (2)
SACR 56
(W); S v Mokela 2012 (1) SACR431 (SCA); S v Nemutandani
[2014] ZASCA 128
(unreportedSupreme Court case no. 944/13 22
September 2014
and numerous other cases, are authority
to the effect that where the accused is charged with numerous counts
which emanate out of
same incident, the court should, in appropriate
cases, apply the provisions of section 280 (2) of the CPA and order
the sentences
to run concurrently. I am of the view that the
cumulative effect of the sentence imposed on the appellant is,
despite the fact
that part of it was ordered to run concurrently,
still excessive to warrant interference by an appeal court. The trial
court, in
my view, should have ordered that all three sentences are
to run concurrently.
[14] I, in the result make the
following order:
14.1 The appeal against sentence is
upheld.
14.2 The sentences of 30 years
imprisonment on count 1, 30 years on count 2 and 20 years on count 3
are confirmed;
14.3 The order of the court a quo in
respect of the concurrent running of 15 years imprisonment on count 2
with the 30 years imprisonment
on count 1 is set aside;
14.4 In terms of section 280 (2) of the
CPA it is ordered that the sentences in count 1, 2 and 3 will run
concurrently. Effectively
the appellant will serve 30 years
imprisonment.
14.5 In terms of section 282 of the
CPA, the sentence is antedated to the 19.2.1996.
SEMENYA.
Acting Judge of the High Court of
South Africa, North Gauteng Division, Pretoria.
I concur.
MODIBA L.T
Acting Judge of the High Court of
South Africa, North Gauteng Division, Pretoria.
MSIMEKI M.W
Judge of the High Court o South
Africa, North\Gauteng Division, Pretoria.
DATE OF HEARING: 20 November 2015
DATE OF JUDGMENT: 29 JANUARY 2016