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 936
|
|
Mkhabela and Others v S (A334/15) [2016] ZAGPPHC 936 (8 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
8/11/2016
Case
Number: A334/15
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
In
the matter between:
ARMANDO
PETRUS
MKHABELA: 1st
Appellant
DAVID
MAPIKWA
MABASO: 2nd
Appellant
JACOB
JULIUS
NTULI: 3rd
Appellant
And
THE
STATE Respondent
JUDGMENT
Sardiwalla
AJ
[1]
The three Appellants were charged on a count of contravening the
Riotous Assemblies Act, No 17 of 1956, in that they conspired
to
commit the offence of illegal hunting of a rhinoceros within a
National Park, prohibited by
section 46
(1) of the
National
Environmental Management: Protected Areas Act, No 57 of 2003
.
Furthermore the Appellants were charged with the unlawful possession
of a firearm and ammunition in contravention of respectively
section
3 and 90 of the Fire Arms Control Act, No 60 of 2000. The Appellants
were represented during the plea and sentence proceedings.
All three
pleaded guilty to the three counts against them. The court
a quo
convicted them as charged on the basis of the admissions
contained in their signed statements in terms of
section 112
of the
Criminal Procedure Act, No 51of 1977
.
[2]
The Appellants were sentenced as follows:
Count
1: 5 years Imprisonment each
Count
2: 1st Appellant - 5 years imprisonment, 2nd Appellant- 3 years
imprisonment and 3rd Appellant- 4 years imprisonment
Count
3: 4 years imprisonment each.
The
sentence on Count 3 was to run concurrently with the sentence on
Count 2 in respect of each Appellant.
[3]
The Appellants successfully applied for leave to appeal in respect of
the sentence.
[4]
The Appellants were charged for conspiring to commit the crime of
illegal hunting of rhino within a Kruger National Park, which
is
prohibited in
section 46(1)
of the
National Environmental Management:
Protected Areas Act, No 57 of 2003
.
Section 46(1)
of Act 57 of 2003
provides as follows:
"Despite
any other legislation, no person may without the written permission
of the management authority of a nature reserve
or world heritage
site enter or reside in the reserve or site"
It
was conceded that
section 46(1)
of the
National Environmental
Management: Protected Areas Act, No 57 of 2003
deals with trespassing
in a protected area and that
section 57(1)
of the
National
Environmental Management: Biodiversity Act, No 10 of 2004
, should
have been used for illegal hunting of rhinoceros.
Section
57(1)
of Act 10 of 2004 provides as follows;
'11
person may not carry out a restricted activity involving a
specimen of a listed threatened or protected species without a permit
issued in terms of Chapter 7"
Restricted
activity is defined in section l(a) of the Act 10 of 2004 as follows:
"(i)
hunting, catching, capturing or killing any living specimen of a
listed threatened or protected species by any means,
method or device
whatsoever, including searching, pursuing, driving, lying in wait,
luring, alluring, discharging a missile or
injuring with intent to
hunt, catch, capture or kill any such specimen"
[5]
In spite of the charge referring to the wrong section and Act, it was
submitted a quo on behalf of the Appellants, that it was
clear that
the Appellants meant to plead guilty on a charge of conspiracy to
hunt and kill rhino, a protected species, while not
being in
possession of a valid permit to do so. It was further submitted on
behalf of the Appellants that it was their intention
to plead guilty
to conspiring to illegally hunt rhinoceros in the Kruger National
Park and that they would not suffer injustice
if this Court rules
that the defect in the charge sheet was cured by admissions that the
Appellants made in their statements in
terms of section 112 of Act
51of 1977.
[6]
Section 88 was introduced to overcome technical errors made by
persons drawing up the charges. Section 88 provides that where
a
charge is defective for want of an averment which is an essential
element of the relevant offence, the defect shall, unless brought
to
the notice of the court before judgment, be cured by evidence at the
trial proving the matter which should have been averred.
This means
that the accused can now be found guilty, even though the indictment
does not disclose an offence provided that the
evidence proves the
offence. In this matter the deficiencies in respect of count 1 as
contained in the charge sheet was cured in
terms of section 88 of the
Act 51 of 1977 by the admissions made respectively by the Appellants
in their section 112 statements.
[7]
This court will only interfere with the sentencing discretion if the
trial court misdirected itself, or had not exercised its
discretion
judicially and properly, nor had the sentence been startlingly
inappropriate, or that the interest of justice require
it. In
S
v Pieters
1987
(3)
SA 717
{A) at 734D-F,
Botha
AJA stated that the decisive question facing the Court of appeal on
sentence was whether it was convinced that the court which
had
imposed the sentence being adjudicated upon, had exercised its
discretion to do so unreasonably. If so, the Court of appeal
was
entitled to interfere.
[8]
The Appellants submitted that the Magistrate misdirected himself by
referring to and relying on submissions made by the prosecutor
from
the bar on a disputed confession by one of the Appellants. It is
trite that a party wishing to rely on a particular mitigating
or
aggravating factor must provide a sufficient factual basis for that
factor through the production of evidence. The content of
the
confession was placed in dispute, and the Magistrate misdirected
himself in relying on the confession that was disputed as
there was
no factual basis to do so. The Magistrate only relied on the
submissions relating to the confession where he imposed
the
respective sentences pertaining to count 2 when he differentiated
between the involvement of each Appellant and the level of
participation.
The
court in
S v Kekane
2013 (1) SACR 101(SCA)
stated that:
"It
is trite that this court will not interfere with the sentence imposed
by the court a quo unless it is satisfied that the
sentence has been
vitiated by a material misdirection or is disturbingly inappropriate.
No misdirection has been alluded to, nor
can it be said that the
sentence induces a sense of shock. It has been submitted on behalf of
the appellant that the sentence is
out of pro portion to the gravity
of the offence and that, in the circumstances of this case, a
non-custodial sentence was appropriate.
It is true that the appellant
has an unblemished record and that he was a useful member of society
in gainful employment at the
relevant time. Those circumstances,
however, have to be weighed against the nature and severity of the
offence and the requirements
of society. Notwithstanding those
mitigating factors being present, the seriousness of the offence
makes it necessary to send out
a clear message that behaviour of the
kind encountered in this case cannot be countenanced."
[9]
It was also submitted on behalf of the Appellants that the sentence
is not proportionate to the circumstances of the case and
induces a
sense of shock based on the following three aspects: the Appellants
did not execute their plan to hunt and kill rhinoceros;
the
Magistrate overemphasized the interest of society while placing
little value on the personal circumstances of the Appellants;
and the
cumulative effect of the three sentences is shocking disproportionate
under circumstances.
[10]
Section 18(2) of the Riotous Assemblies Act 17 of 1956, states that
the conspirator is liable to the same punishment as the
person
convicted of committing the crime and the sentence imposed by the
Magistrate in respect of count 1 is indeed one that he
could have
imposed. The fact that the Appellants did not execute their plan is
not mitigating because if it was not for the preventive
action of the
police they would have executed their conspiracy, and it was in the
interest of justice to arrest would-be perpetrators
of serious crimes
before they commit it, and charge them for conspiracy to commit the
crime rather than to wait for them to carry
out their plan and charge
them for the completed offence.
Dealing
with remorse as a mitigating factor, Ponnan JA made the following
dictum in
S v
Matyityi 201 1(1) SACR 40(SCA) at 47 a-d.
"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 acknowledgment 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 pro per appreciation of inter a/ia: 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."
[11]
The Appellants further argued that they were enticed by the police
agent to commit the crimes and that they were just randomly
chosen by
the police agent.
Section
252A (1) states that traps are admissible
"if that conduct
does not go beyond providing an opportunity to commit an offence".
Accordingly, this court admits the evidence of a trap. In
S
v Sellem 1992(2) SACR 19 (A) at 28/-29c
the Court found that
if a crime was committed as result of enducement it would be
significant during sentencing stage. The court
further found that the
influence of persuasion is a question of fact that must be
established through evidence. The Appellants
failed to give evidence
regarding the influence that the persuasion of the police agent had
on them.
[12]
The fact that the crime was carefully planned is an aggravating
factor and it was not an impulsive act; and the Appellants
had the
opportunity to change their minds and withdraw from conspiracy. This
Court takes judicial notice of the alarming proportions
that rhino
poaching has reached South Africa and there is a general outcry for
strong action to curb offences linked to rhino poaching.
[13]
I am of the view that the Magistrate did not overemphasise the
interest of society in this matter if the following factors
are taken
into consideration: the endemic proportions that rhino poaching has
reached and the interest of the community therein;
that the
Appellants were in unlawful possession of a firearm which they wanted
to use to commit a crime; the court did take into
consideration the
personal circumstances of the Appellants as well as the fact that he
regarded them as first offenders; the fact
that they did plead guilty
to the offences; the court did take into consideration that they were
arrested as a result of a police
trap; that the Appellants did not
complete the offence and kill rhinoceros; the court considered
alternative sentencing options.
The cumulative effect of the sentence
and; similar matters that it dealt with were also taken into account.
[14]
This appeal previously served before this Court on 10 March 2016. On
that occasion the question was raised whether the provisions
of
Section 113
of the
Criminal Procedure Act should
not have been
applied by the Court a quo. Counsel for the State provided additional
Heads of Argument and referred us to
Mokonoto v Reynolds
2009
(1) SACR 311
T,
amongst others. Standing alone, that decision
would indeed provide support for an argument that the learned
Magistrate should have
entered a plea of not guilty, and that the
fairness of the enticement be investigated. On the facts of this case
however, there
is no justification for such. The topic was only
raised in argument on sentence. It also appeared that the particular
police official
had only on one occasion mentioned that money could
be made in this manner. Thereafter eight calls were made to him to
arrange
the intended crime. There can be no question that the
Appellants were unfairly or unlawfully enduced into this course of
conduct.
[16]
Accordingly it is ordered that:
[17]
The appeal against the sentences is dismissed.
_______________
CM
SARDIWALLA
ACTING
JUDGE OF THE HIGH COURT
I
agree
________________
HJ
FABRICIUS
JUDGE
OF THE HIGH COURT
HEARD
ON: 11
OCTOBER 2016
FOR
THE APPELLANT: ADV
L AUGUSTYN
INSTRUCTED
BY: LEGAL
AID BOARD
FOR
THE RESPONDENT: ADV
JH VAN DER MERWE
INSTRUCTED
BY: DIRECTOR
OF PUPBIL PROSECUTIONS
DATE
OF JUDGMENT: 8
NOVEMBER
2016