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[2016] ZAGPPHC 682
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Sako v S (A667/12) [2016] ZAGPPHC 682 (10 August 2016)
SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
10/8/2016
Reportable:
No
Of
interest to other judges: No
Revised.
CASE
No. A667/12
NGHC
CASE No.CC202/07
In
the matter between:
CASBERT
HLABANA
SAKO APPELLANT
and
THE
STATE RESPONDENT
JUDGMENT
PRELLER
J:
This
appeal against sentence only comes before us with the leave of the
court
a quo.
The appellant was convicted and sentenced by
Raulinga J as follows:
Count
1: Robbery with aggravating circumstances - 15 years' imprisonment;
Count2:
Murder - Imprisonment for life;
Count
3: Assault with intent to do grievous bodily harm - 5 years'
imprisonment;
Count
4: Possession of a firearm without a valid license - 5 years'
imprisonment;
Count
5: Possession of ammunition without a valid license - 3 years'
imprisonment.
The
sentences on counts 1,3, 4 and 5 were ordered to be served
concurrently with the sentence of life imprisonment that was imposed
on count 2.
The
trial arose from an incident on 30 January 2003 during which one
W.J.T., who was in his 70's, was murdered and robbed of
inter alia
a motor vehicle and a revolver by the appellant and two
accomplices. During the incident his domestic assistant, S.G.M. was
raped
and stabbed with a knife between the shoulder blades. The
stabbing was the subject matter of count 3 and the appellant was
convicted
on the basis of the common purpose that was found to have
existed among the three perpetrators. The same applied to counts 4
and
5. Because the complainant could not identify the one of the
three who had raped her and the court could not find that there had
been a common purpose to commit the rape, the appellant was acquitted
on count 6.
After
argument in the case before us, Mr. Moeng for the appellant informed
us that, arising from his discussions with the appellant,
he had some
reservations about the latter's mental state. This court had some
similar concerns arising from his behavior at the
trial, particularly
before Webster J, to which reference will be made below. It was
accordingly agreed with counsel that the appeal
would be postponed
sine die
and that the appellant shall be seen by a district
surgeon, a psychologist or a psychiatrist to report to this court
whether there
are grounds for referring the appellant for observation
in
terms of section 78 or 79 of the Criminal Procedure Act. If there
were such grounds, we would set the convictions aside and refer
the
matter back to the court
a qua
to consider whether the
appellant should be so referred for observation. If not, we shall
simply deliver our judgment with hearing
further argument. We
subsequently received a report from Dr. N. J. Luphuwana, a practicing
psychiatrist from Thohoyandou, according
to which there are no
grounds for referring the appellant for such observation. In terms of
our agreement with counsel, this judgment
is given without further
ado.
The
appellant was not legally represented at his trial, but that was his
own choice. He initially appeared before Webster J and
it is clear
from the record of the proceedings before him that the appellant went
out of his way to be obstructive. Because he
was connected to the
incident by a fingerprint that had been found on the scene, it was
necessary that his fingerprints be taken
again before the hearing.
Although he had elected before the Magistrate to make use of legal
aid counsel, who had been duly appointed
an supplied with copies of
the documents, he informed Webster J that he would find his own
lawyer, who would be paid by his parents.
However, his mother who was
present, informed the court that she was unemployed and had no money.
The case had to stand down for
his fingerprints to be taken, if needs
be with force, and for counsel who was present in court to be
properly instructed.
Although
counsel had apparently been properly instructed during the
adjournment and he seems to have supplied the necessary fingerprints,
he again insisted on having his own lawyer. In order to avoid any
possible irregularity, the court allowed the case to stand down
to
the next day to afford the appellant a further opportunity to
instruct a lawyer of his own. The next day he informed the court
that
his lawyer is Jesus Christ, who will tell the court the truth.
Eventually the case had to be postponed for a further eight
months,
and resumed before Raulinga J.
At
the resumption of the trial the appellant first changed his previous
plea to one of guilty (except in respect of count 6, the
one of rape)
and admitted having committed the crimes. In the course of his
questioning in terms of section 112 (1)(b) of Act 51/1977
he informed
the court that he did not know that what he was doing was wrong and
eventually the court simply amended his plea to
one of not guilty to
all the counts. That was the eminently sensible thing to do as the
court was getting nowhere with the plea
proceedings after the
appellant had rambled on for 16 pages of the record.
The
crime committed by the appellant and his accomplices was a heinous
one. A defenceless man in his seventies was cruelly beaten
around the
head and body with two monkey wrenches and then shot with his own
firearm. The shooting after the brutal attack was
purely gratuitous,
as he was in no position to offer any resistance.
The
appellant was not a first offender. On 9 December 2002, which was two
weeks before his 21st birthday, he was convicted of assault
with
intent to do grievous bodily harm and sentenced to pay a fine of R
1000 or 4 months' imprisonment, which was wholly suspended
for three
years. On 26 May 2004 he was convicted of housebreaking, robbery and
attempted murder for which he was sentenced to an
effective term of
24 years' imprisonment. Unfortunately the date of the commission of
these offences does not appear from the form
SAP 69 that was handed
in, but the police reference in respect of the offences is
144/11/2002, which indicates that the offences
were reported and
probably committed in November 2002, which was before his first
conviction and also before the current offences.
Although the latter
three offences were probably committed before the current offences,
the conviction was only after the commission
of the current offences
and should strictly not be treated as previous convictions. He was 21
years and 5 weeks old when he committed
the current offences. They
were committed a mere two months after the crimes which later earned
him an effective sentence of 24
years' imprisonment.
The
appellant's submissions in mitigation was mainly that he had been
born again, that he was preaching to other prisoners and that
he was
studying for a pastoral diploma in prison and wished to be released
so that he could follow a career in the ministry. He
also regretted
his deeds and did not waste the court's time by denying his guilt.
The court elicited from him that he was 28 years
old and it appears
from the record that he had been in custody awaiting trial for more
than 30 months before his conviction, although
he had been a
convicted prisoner for the better part of that period. Although his
alleged conversion to religion will, if true,
probably keep him from
crime in the future, some doubt is cast on the sincerity of his
remorse by the fact that he was not prepared
to point out his
co-perpetrators to the police.
In
my view it is clear that the appellant had embarked on a life of not
merely crime, but of serious crime and was a real threat
to society.
That is a fact that cannot be ignored, even if he were to be treated
as a first offender for the purpose of sentence.
Looking at the
events leading to the present convictions without taking the
appellant's history into account, I am driven to the
conclusion that
the murder and also the robbery were both of a very serious kind. The
murder and the robbery were both committed
with a purpose common to
the three perpetrators and the murder was committed in the course of
a robbery with aggravating circumstances.
The grounds advanced by the
appellant mainly came after the event and cannot amount to
substantial and compelling circumstances
justifying a departure from
the prescribed minimum sentences. In imposing sentence the court
a
qua
gave a properly motivated judgment and I can find no
misdirection in it. There is no reason to interfere with the sentence
imposed.
I
propose the following order:
The
appeal is dismissed
__________________
F
G PRELLER
JUDGE
OF THE HIGH COURT
I
agree.
___________________
E
BERTELSMANN
JUDGE
OF THE HIGH COURT
I
agree
___________________
S
P MOTHLE
JUDGE
OF THE HIGH COURT
IT
IS SO ORDERED.