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[2016] ZAGPPHC 1175
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Mthimkhulu v S (A934/2015) [2016] ZAGPPHC 1175 (21 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
21/11/16
CASE
NO: A934/2015
In
the matter between:
THEMBA
MTHIMKHULU
Appellant
and
THE
STATE
Respondent
JUDGMENT
DE
VILLIERS, AJ:
1
This
is
an
appeal
against
the
conviction
and
sentence
of
the
appellant.
He was
charged in
the
Regional
Court,
Lesedi,
Heidelberg
with
robbery,
with
aggravating circumstances, as
intended
in
section
1
of
the
Criminal
Procedure Act
51 of
1977
[1]
(“the
Act”).
2
The
appellant
was
legally
represented
at the
trial.
He
pleaded
not guilty.
He
endeavoured
to
plead
guilty
in
terms
of
section
112 of the
Act
to
the
receipt
of
suspected
stolen
property,
[2]
but
the
learned
magistrate
rejected
the
plea and
entered
a
plea of
not
guilty.
In
terms
of section
113(1) of
the
Act
(underlining
added):
"If
the court at any stage of the proceedings under section 112 (1) (a)
or (b) or 112 (2) and before sentence is passed is
in doubt whether
the accused is in law guilty of the offence to which he or she has
pleaded guilty or if it is alleged or appears
to the court that the
accused does not admit an allegation in the charge or that the
accused has incorrectly admitted any such
allegation or that the
accused has a valid defence to the charge or if the court is of the
opinion for any other reason that the
accused's plea of guilty should
not stand, the court shall record a plea of not guilty and require
the prosecutor to proceed with
the prosecution:
Provided that any
allegation, other than an
allegation
referred
to above, admitted by the accused up to
the stage at which the court records
a plea
of
not
guilty,
shall stand
as
proof
in any
court of such
allegation.
"
3
The trial commenced on 19 October 2015 and the appellant was
convicted on 21 October
2015 on the charge and sentenced to fifteen
years imprisonment.
4
The sentence of fifteen years imprisonment is the minimum prescribed
sentence in terms
of
section 51(2)(a)
of the
Criminal
Law
Amendment
Act
105 of
1997
as read with
Part II
of Schedule 2. In terms of
section 51(3)(a)
of that act, the court must impose a lesser sentence than the
minimum prescribed sentence if it is satisfied that
"substantial
and
compelling
circumstances
exist which
justify
the imposition
of a lesser sentence than the sentence prescribed" .
5
The appellant obtained leave to appeal against his conviction and
sentence from the
Regional Court on 4 November 2015.
6
The facts of the matter are uncomplicated.
6.1
A Mr Patel and his mother were robbed at gunpoint
at their home on
Friday 3 April 2015 in the evening at about 21h10. He was tied up and
they were placed in a bedroom whilst the
robbery proceeded. Mr Patel
did not see the appellant, but he had heard a robber or robbers he
did not see;
6.2
Amongst the stolen items was a Nissan MP300 vehicle,
a so-called
"bakkie"
\
.
Two security officers found
the vehicle parked in front of a shebeen about five hours after they
had started to look for it and
followed it when it drove away;
6.3
A chase ensued, and the driver, the appellant,
endeavoured to speed
away from his pursuers. The appellant lost control and the vehicle
crashed into a wall. The security officers
apprehended the appellant;
and
6.4
The events took place on Good Friday night
until early in the morning
of the Saturday that followed.
7
The appellant in his purported guilty plea admitted that he was found
in the possession
of the Nissan vehicle at about 03H00 on 4 April
2015 by (employees) of a tracking company, whilst he was driving it.
8
The appellant did not testify in his own defence. He was found guilty
in essence based
upon the doctrine of recent possession.
9
This
finding
was
questioned
in the
appellant's
heads
of
argument,
but
not really
in
argument.
The
submission
in
the
heads
of
argument
was that
possession
of
the
vehicle
five
or
six
hours
after
the
robbery
(during
the same
night)
is
not
recent
possession
in
that
vehicles
are
easily
disposable
or
changes
hands
quickly.
The
argument
was
based
on
S
v
Mothwa
2015
JDR
2096
(SCA)
[3]
.
10
The short duration and the date and time when the events occurred in
my view satisfy
the requirements set out in at Para 8 of the
Mothwa-judgment. In any event, in that case, the accused was found in
the possession
of a vehicle three days after the robbery, the vehicle
already had different registration numbers and it was already
registered
in the name of a third party, and the accused testified
and provided an explanation. It is not comparable on the facts to the
present
case.
11
I do not believe that the Magistrate erred in relying upon the
doctrine of recent possession
in coming to a conclusion that the
state had proven the appellant's guilt. The Magistrate found that the
inference establishes
the appellant's guilt beyond reasonable doubt.
I see no reason to interfere in the Magistrate's reasoning.
12
The case argued on appeal was that the appellant's version in his
rejected plea explanation
reasonably and possibly could be true. This
aspect was debated in argument, and we were not referred to any
authority for a submission
that such an explanation constituted
evidence apart for the limited application as set out in
section
113(1)
of the
Act
referred to earlier.
13
In the absence of a version under oath, the appellant in fact has not
provided an explanation
that reasonably and possibly could be true,
and the state has discharged the onus on it. In my view, the
appellant had to provide
rebutting evidence, but failed to so. See
too
S v
Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC) at Para 24.
14
The remaining issue is the sentence of fifteen years, subject to the
test to be applied
in this court. That test has been set out in
S
v Rabie
1975 (4) SA 855
(A) at 8578 - E (underlining added):
"
1. In every appeal against sentence, whether imposed by a
magistrate or a Judge,
the
Court
hearing
the
appeal
-
(a)
should be
guided by the
principle
that
punishment is "pre-eminently a
matter
for
the
discretion
of
the
trial
Court";
and
(b)
should
be
careful
not
to
erode
such
discretion:
hence
the
further principle that
the
sentence should only
be
altered if
the
discretion has not been
"judicially and properly exercised
".
2.
The test under
(b)
is
whether
the
sentence
is
vitiated
by
irregularity
or
misdirection or is disturbingly inappropriate
.
See,
as to
all of the
foregoing,
R.
v
Mapumulo and Others,
1920
AD 56
at
p.
57;
R. v
Freedman,
1921
AD 603
at
p.
604 in fin.;
S. v
Narker and
Another,
1975
(1) SA 583
(AD)
at
p.
585C."
15
More
recently in
S
v
Blignaut
2008
(1)
SACR 78
(SCA)
[4]
the
approach
on appeal
with regard
to a
minimum sentence was set out in Para 3
to 5
(underlining
added):
"[3]
The
approach
of
a
sentencing tribunal to
the
imposition
of
the
minimum sentences
prescribed by the
Act
is to be found in
the detailed
judgment of Marais JA in
S v
Malgas
2001 (1) SACR 469
(SCA). The main principles
appearing in that
judgment
which
are
of
particular application to
the
present appeal are: First, the
court
has a
duty to consider all the circumstances of the
case, including the many factors traditionally taken
into
account by
courts when
sentencing
offenders. Secondly,
for
circumstances to
qualify as
substantial and compelling, they do
not have to
be
exceptional in the
sense of
seldom encountered or
rare.
Thirdly,
although the
prescribed
sentences required a
severe,
standardised
and
consistent response from
the
courts unless
there were, and could be seen to
be, truly convincing reasons for a different response, the statutory
framework
nonetheless
left
the courts free
to continue to exercise a
substantial measure of
judicial discretion in imposing
sentence. (See also
S v Fatyi
2001
(1)
SACR
485
(SCA)
para
5; S
v
Abrahams
2002
(1)
SACR 116
(SCA)
para
13.)
[4]
The circumstances entitling a court of appeal to interfere in a
sentence imposed by a trial court were recapitulated in
Malgas
(para 12), where Marais JA held:
'
A
court exercising appellate jurisdiction
cannot,
in the
absence of
material
misdirection by the
trial
court, approach the
question
of
sentence as
if
it were
the trial court
and
then substitute the sentence arrived at by it simply because
it prefers it. To do so would be to usurp the sentencing
discretion of the trial
court. . . .
However,
even in the absence of material misdirection
an
appellate
court may
yet be justified
in
interfering
with the sentence imposed
by the t
rial
court. It may do so
when the disparity
between the
sentence
of the trial court
and the sentence
which the
appellate
Court would have imposed
had
it been the trial court
is
so
marked that
it
can
properly
be described as
"
shocking",
"startling"
or
"disturbingly
i
nappropriate".'
[5]
The question therefore is whether there was
a
material
misdirection by the trial court in the manner in which it weighed the
factors relevant to the determination of sentence
or, if not, whether
the sentence imposed
was in any event so shockingly
inappropriate as to give rise to the inference that there had been
a
failure to
properly exercise
the
sentencing
discretion
(
Abrahams
para
15)."
16
Later in that judgment the court held in Para 8 the Court summarised
its finding as
follows:
"[8]
In my view the cumulative effect of the aforegoing factors, all of
which the
sentencing court failed to take into account,
constitute substantial and compelling circumstances within
the
meaning of
that
expression. I
am
thus
persuaded
that
a
departure from the
prescribed
minimum is
justified on
the basis that
such
a
sentence would
be
disproportionate
to
the
crime,
the
criminal
and
the
legitimate
interests of society (
S v
Mahomotsa
2002 (2)
SACR
435
(SCA)
para
20). It
follows that the fifteen years' imprisonment
imposed on
the
appellant by
the
regional magistrate is
not
a
just
sentence.
Plainly,
for
an
offence
of
the
kind
encountered here,
a
custodial
sentence
is clearly warranted. Reconsidering the matter, I consider
a
sentence of 5 years' imprisonment to be appropriate in respect of
count 1
-
the robbery with aggravating
circumstances."
17
The appellant did not testify and led no evidence on mitigation.
18
We were not referred to any comparable case authority.
19
Leaving aside speculative submissions, and the only factors
relied upon for showing
substantial and compelling circumstances
which would have justified the imposition of a
lesser sentence, were
that:
19.1
The appellant was 31 years old;
19.2
The appellant's two previous convictions were not for robbery
with
aggravating circumstances;
19.3
The robbery did not involve severe physical harm;
19.4
The vehicle was recovered.
20
I am not convinced that these factors constitute substantial and
compelling circumstances
which would have justified the imposition of
a lesser sentence. However, that is not the test on appeal. No
case has been
made out to bring this matter within the tests set out
in the
Rabie-case
or in the
Blignaut-case.
Consequently,
I make the following order:
1
That the appeal be dismissed
____________________
DP
de Villiers
Acting
Judge of the High Court Gauteng Division
I
agree, it is so ordered.
____________________
N
Janse van Nieuwenhuizen
Judge
of the High Court
Gauteng
Division
Heard
on:
15 November 2016
On
behalf of the Appellant:
Adv Moeng (Ms MMP Mastete prepared the heads of argument)
Instructed
by:
Pretoria Justice Centre
On
behalf of the Respondent:
Adv L Williams
Judgment
handed down:
21 November 2016
[1]
(1) In
this
Act,
unless
the
context
otherwise indicates-
'aggravating
circumstances',
in relation to- (a) ......
(b)
robbery or attempted robbery, means-
(i)
the wielding of a fire-arm or any other dangerous weapon;
(ii)
the infliction of grievous bodily harm; or
(iii)
a threat to inflict grievous bodily harm,
by
the offender or an accomplice on the occasion when the offence is
committed, whether before or during or after the commission
of the
offence";
[2]
Section 37 of the
General
Law Amendment
Act
62 of
1
955;
[3]
Neutral citation:
Mothwa
v The
State
(
1
24/15)
[2015)
ZASCA
1
43
(1October
2015)
[4]
Neutral citation:
Blignaut
v The
State
[2007]
SCA
94
(RSA)