About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 272
|
|
Mashile v S (A360/15) [2016] ZAGPPHC 272 (29 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Not
reportable
Not
of interest to other judges
Revised.
CASE
NUMBER: A360/15
DATE:
29 April 2016
SOLOMON
NENDANGWANA OUPA
MASHILE
Appellant
v
THE
STATE
Respondent
JUDGMENT
MABUSE
J:
[1]
This is an appeal against sentence only. The appellant, Mr. Solomon
Nendangwana Oupa Mashile, appeared before the regional court
sitting
in Brakpan where he was arraigned on a charge of murder, in count 1,
read subject to the provisions of s 51(1) of the Criminal
Law
Amendment Act No. 105 of 1997 (the Minimum Sentence Act) and, in
count 2, on attempted robbery with aggravating circumstances
as
contemplated in s 1 of the Criminal Procedure Act 51 of 1977 ("the
CPA"). The appellant pleaded not guilty to both
counts and
through its legal representative, one Mr. Kathrada, made a plea
explanation in terms of the provisions of s 115 of the
CPA. In his
plea explanation he denied that he had shot and killed the deceased
in this matter. Furthermore he told the Court that
it was a certain
Collin who at all material times hereunto was in possession of a
firearm and who fired the shot at the deceased.
According to him it
was the said Collin who killed the deceased by shooting him.
[2]
Again through his legal representative, the appellant made certain
admissions in terms of s 220 of the CPA. Those admissions
were
captured by the Court a quo and read into the record. In terms of the
said admissions the appellant admitted that the deceased
died at
Pholosong Hospital due to the injuries sustained as per the post
mortem report on the very day, 19 December 2012; that
the photo album
compiled by one Mpho Buti Nkosi could also admitted; it was also
admitted further by the appellant that the body
of the deceased was
pointed out to Dr. Nkosana by Sidwell Oradise Rabopape who is a
forensic pathology officer; that prior, the
body of the deceased was
conveyed from the hospital, had been received by warrant officer
Jansen and conveyed to the pathology
services by one Modjudi
MacDonald Molife.
[3]
The charges against the appellant arose from the following
circumstances. The incident in question took place on 19 September
2012 between 11h00 and 12h00. This day was described by Goodwill
Mnisi, the state's first witness, as clear and hot. It took place
in
or at a shop owned by one Allum, the second state witness. On the
said date and before the incident took place, Mr. Mnisi parked
his
motor vehicle next to the second state witness's shop. Seemingly Mr.
Allum and the deceased had just returned from buying stock
for Mr.
Allum's shop. At a corner of the street where the shop was located he
saw three adult males sitting on the ground. These
adult males were
Vusi, Buti and Collin. Buti was the appellant in the matter. After he
stopped there and while the appellant and
his companions were still
at the spot where he had seen them initially, Allum and the deceased
unloaded the stock from his motor
vehicle and took it into the shop.
[4]
After they had finished unloading the stock, he drove away slowly. As
he drove away he saw the appellant and his companions
rise from where
they were sitting. He drove his motor vehicle slowly, as he was
driving and approaching his parents' house which
is located seemingly
in the same street as Allum's shop, he heard a gunshot. The appellant
then appeared and he saw them walk in
the street in which his
parents' house was situated. As they approached he saw the appellant
tuck a firearm away in the right pocket
of his jacket. At this stage
he was already at his parents' house.
[5]
He then got a call from Allum who reported to him that the deceased
had been shot. He got into his motor vehicle and drove back
to
Allum's shop. He conveyed the deceased from Allum's shop to the
hospital where he was certified dead on arrival. He described
the
firearm as being 30mm long. Before this incident he did not know the
appellant.
[6]
The State's second witness, one Massum Allum, described the shooting
in his testimony as follows. While he and the deceased,
whom he
called Madala, were in the shop packing the stock, he asked the
deceased if he wanted to eat. When the deceased answered
positively
he left the fridge, where he had been busy packing the colddrinks,
open. He opened the door of the shop, let the deceased
in and then
had someone instructing the deceased to open the door. When he turned
to look around, first he saw a gun and immediately
thereafter heard
someone demanding that the door be opened.
[7]
He stood up from where he was sitting and took a proper look. He saw
a gun that was pointed at the deceased. He ordered the
deceased to
open the door. When the deceased tried to open the door, the
appellant shot him and thereafter fled out of the shop.
The deceased
fell and he started to scream and to cry. He knew the appellant well
but not his name. The appellant was one of his
customers. He
regularly came to his shop to buy this and that. He had seen him many
a time. While he saw the appellant clearly
on that fateful day, he
was unable to see if the appellant was in the company of other
people.
[8]
After the shooting incident, he called Mnisi and made a report to him
about the incident. Mnisi came back, picked up the deceased
and took
him to the hospital where he was certified dead on arrival.
[9]
The appellant testified in his defence but called no witness to
testify in his defence. In his testimony he stuck to his
plea-explanation.
Firstly he admitted that he was present at the
scene when and where the incident took place. He denied, however,
that he shot the
deceased. According to his testimony, he was never
in possession of a firearm on that fateful day, but one Collin was in
possession
of the firearm. The imputation is that it was Collin who
shot and killed the deceased.
[10]
The Court
a quo
was satisfied that the respondent had
succeeded to prove, beyond reasonable doubt, that the appellant had
committed the offences
he had been charged
with.
It rejected the version of the appellant on the fundamental ground
that it was not reasonably possible true. It accordingly
convicted
the appellant as charged and sentenced him, upon conviction, to life
imprisonment in respect of count 1 and to 10 years
imprisonment in
respect of count 2. In terms of
s. 103(1)
of the
Firearms Control Act
60 of 2000
, it declared the appellant unfit to possess a firearm.
[11]
It is the aforegoing sentences that the appellant, on grounds that
have been fully set forth in his application for leave to
appeal,
challenges. The appeal is brought in accordance with the provisions
of
s 309
of the CPA read with
s 10(3)
and s 43(2) of the Judicial
Matters Amendment Act 42 of 2013. The Appellant's appeal against the
sentences imposed on him was predicated
basically on the following
grounds. The grounds are firstly, that the term of life imprisonment
in respect of count 1 and a further
10 years imprisonment in respect
of count 2 are shockingly inappropriate. It is contended by the
appellant that the said sentence
is shockingly inappropriate in the
following respects:
11.1 It is out of
proportion
vis-a-vis
the totality of the accepted facts.
[12]
In this regard Ms. van Wyk, after conceding that the Court had,
during sentencing procedures, taken all the mitigating and
aggravating factors into account, indicated that she could not take
this aspect any further. She had in her heads of argument,
and in
support of this issue, cited the case of S v Dyantyi 2011(1) SACR 540
ECG, in which the court dealt with disproportionality
of sentence.
Ms. Van Wyk had not indicated whether the said matter was heard by a
single judge or a full bench or a full court.
Whatever the court that
heard the matter, we were told, that in deciding whether substantial
and compelling circumstances exist,
all factors traditionally
considered are to be taken into account, including mitigating and
aggravating factors. This re-statement
of the principle of law is a
repetition of what the Court stated in the famous case of S v Malgas
2001(2) SA 1222 SCA ("Malgas").
[13]
On the other hand, Ms. Makgwatha, counsel for the respondent,
submitted that the court a quo had committed no misdirection
as it
took all the relevant factors into consideration when it sentenced
the appellant. Furthermore she submitted that the sentence
so imposed
on the appellant is appropriate in the circumstances of this case.
[14]
That the court
a quo
in effect disregarded the period of time
which the appellant spent in custody while awaiting trial.
It
was stated in the appellant's heads of argument that in imposing
sentence on the appellant, the court
a quo
failed to take into
account the period of two years and three months that the appellant
had spent in custody while awaiting the
finalisation of the matter.
The argument was made despite the authority of
S v Radebe and
Another 2013(2) SACR 165 (SCA)
on which the court
a quo
relied. In that case the court had stated in paragraph 13 that:
"[13] In my view
there should be no rule of thumb in respect of the calculations of
the weight to be given to the period spent
by an accused awaiting
trial. (See also S v Seboko 2009(2) SACR 573(NCK) par 22). A
mechanical formula to determine the extent
to which the proposed
sentence should be reduced, by reason of theperiod of detention prior
to conviction, is unhelpful. The circumstances
of an individual
accused must be assessed in each case in determining the extent to
which the sentences proposed should be reduced.
[14] A better
approach, in my view, is that the period in detention pre-sentencing
is but one of the factors that should be taken
into account in
determining whether the effective period of imprisonment to be
imposed is justified, · whether it is proportionate
to the
crime committed. Such an approach would take into account the
conditions affecting the accused in detention and the reason
for a
prolonged period of detention. And accordingly, in determining, in
respect of the charge of
robbery with
aggravating circumstances, whether substantial and compelling
circumstances warrant a lesser sentence than that prescribed
by the
Criminal Law Amendment Act 105 of 1997 (15 years imprisonment for
robbery), the test is not whether on its own that period
of detention
constitutes a substantial or compelling circumstance but whether the
effective sentence proposed is proportionate
to the crime or the
crimes committed,· whether the sentence in all circumstances,
including the period spent in detention
prior to conviction and
sentencing, Is a just one."
What
is emphasized here, firstly, is that there is no definition of what
"substantial and compelling circumstances"
are. The
mere fact that, considered in isolation, the appellant spent a
certain period in custody before the case against him has
been
finalised does not constitute
''substantial and compelling
circumstances''.
It is clear from the said authority that the
Court must look holistically at the circumstances of an individual
accused in order
to assess the presence or absence of
''substantial
and compelling circumstances''.
The Court, in the abovementioned
authorities, disapproved of the approach adopted in
S v
Brophy
2007(2) SACR 56W.
This is how the Court put it in S v Malgas
supra:
"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 the society, so that an injustice
would be
done by imposing that sentence, it is entitled to impose a lesser
sentence."
The
assessment of the circumstances of an individual accused must be done
upon the consideration of the entire evidence.
[15]
The issue raised by the appellant that the period that an appellant
spent in custody while awaiting the finalisation of his
matter should
be taken into account is fraught. In the first place the appellant
has not, with any particular clarity, explained
whether the period
should have been considered or taken into account in respect of the
sentence imposed in respect of count 1 or
count 2 or both. Secondly
it is, in my view, difficult to imagine how, in sentencing the
appellant to life imprisonment, a Court
could accommodate, in such a
sentence, the period that the appellant spent in custody before
finalisation of his matter.
[16]
It is highly unlikely that that can be done. There is therefore no
merit, in my view, in the argument that the trial court
did not, in
the circumstances of this case, attach sufficient weight to this
factor.
[17]
That the court
a quo
should have found that
there were substantial and compelling circumstances
is another
factor on the basis of which it is contended by the appellant that
the sentence imposed on him was disproportionate.
Once a court has
not found any substantial and compelling circumstances, it is
compulsory for it to impose the ordained sentence.
In this regard the
court was referred by the respondent's counsel to two authorities:
S
vs Malgas
supra where the court referred to "fllmsy reasons"
and
S v
Matyityi 2011(1) SACR 40 SCA
. It is trite that
there is no definition of
"substantial and compelling
circumstances''.
It will be recalled that depending on each case,
a factor or a combination of them, may amount to such
"substantial
and compelling circumstances''.
What the court should do or is
called upon to do is to assess the circumstances of each individual
case and to determine whether,
in its view, such circumstances
establish
"substantial and compelling circumstances''.
If
the court has done these and made a particular finding, it cannot be
faulted if it finds in a particular way. We are satisfied
that the
court
a quo
had adopted a proper approach in assessing whether
the facts placed before it established
''substantial and
compelling circumstances''.
The court was therefore, in our
unanimous view, correct in finding that no such circumstances
existed.
[18]
The second ground of appeal by the appellant was that the court
a
quo
erred in not imposing a shorter sentence. This ground has not
been crafted properly. It is the same as the preceding issue that the
court should have found that there were
''substantial and
compelling circumstances''.
A shorter sentence could only have
been imposed by the court
a quo
if it had found
''substantial
and compelling circumstances''.
As the court had found none, it
felt obliged, and rightly so, to impose the ordained sentence.
[19]
Furthermore, the appellant has not explained how his age could be
used as a factor that would mitigate his sentence. In the
case of
Matyityi supra, the court made quite clearly that age was a neutral
factor. Unless evidence is placed before the court
to show how age of
a particular appellant could be used as a mitigating factor to the
advantage of such an appellant, it will remain
a neutral factor.
[20]
The court
a quo
took into account, and it was entitled to, the
seriousness of the offence the appellant had been convicted of, the
appellant's previous
convictions and the purpose of sentence. The
court was disinclined, because of those factors, to impose a
reformative sentence
on the appellant.
[21]
The appellant had previous convictions. He was not deterred by
previous punishment or sentences from committing further offences.
The approach of the court when it is faced with previous convictions
is to analyse them in order to establish whether or not they
relate
to the current charges. Similar or related previous convictions are
aggravating because they indicate that the appellant
has the
proclivity to commit a certain type of offences. It is also
imperative for the court to establish the seriousness of the
previous
convictions. See in this regard
R v Zonele 1959(3) SA 319(A) at
page 330
. Finally, the court must also establish the intervals
that have elapsed between the last previous convictions themselves
and the
current conviction. A second or third conviction of a similar
offence taking place shortly after a previous conviction, which
constituted
a grief warning to an accused person, merits a sentence
of imprisonment. Accordingly in the absence of
"substantial
and compelling circumstances"
a sentence of imprisonment was
appropriate. This is what du Tait stated about previous convictions:
"Hierin lê
vir die verhoorhof gewoonlik a groot bron van kennis rakende die
beskuldigde opgesluit Die hoeveelheid kanse
wat hy gegun is, die tipe
strawwe was aangewend is om die beskuldigde van misdadigheid te
weerhou, is alles faktore wat van groot
belang by die straftoemeting
is."
See
Du Toit
Straf in Suid-Afrika, page 88
.
[22]
The court
a quo
weighed all the three factors relevant in the
assessment of sentence and distilled from them what it considered to
be an appropriate
sentence. It was entitled, in the circumstances, to
find that the offences before it were serious and it has given
reasons for
its view.
[23]
In our unanimous view, the court
a quo
did not, in its
assessment of the sentence it imposed on the appellant, commit any
misdirection. In the absence of any misdirection,
the court is not at
large to interfere with the sentences of the court
a quo.
[24]
In the result:
(a) the appeal against
sentence is dismissed; and
(b) the sentences imposed
by the court
a quo
on the appellant are hereby confirmed.
_________________________
P.
M. MABUSE
JUDGE
OF THE HIGH COURT
I
agree,
________________________
E.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Appellant: Adv.
LA van Wyk
Instructed
by:
Pretoria Justice Centre (Legal Aid Board)
Counsel
for the Respondent: Adv.
MJ Makgwatha
Instructed
by:
Director of Public Prosecutions
Date
Heard· 25
April 2016
Date
of Judgment:
29
April 2016