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[2016] ZAGPPHC 1034
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S v Shabangu and Others (CC168/15) [2016] ZAGPPHC 1034 (7 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER CC168/15
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
7/12/2016
In
the matter between:
THE
STATE
And
MBONGENI
SHABANGU 1
st
APPLICANT
GIVEN
SHABANGU
2
ND
APPLICANT
THABO
SIBIYA
3
RD
APPLICANT
MUZI
MAHLANGU
4
TH
APPLICANT
GIVEN
MOTAU 5
TH
APPLICANT
JUDGMENT
MAVUNDLA,
J,
[1]
The applicants were each convicted and sentenced by this Court on the
25 July 2016 as follows:
1.1 The
1
ST
,
2
ND
, 3
rd
and 5
th
appellants on
count 1, murder on
dolus eventualis
and
count
2
kidnapping
and each sentenced
respectively to 14 years imprisonment and 10 years imprisonment, 5
years of the latter sentence was ordered to
run concurrently with the
sentence of 14 years,
effective sentence is 19 years imprisonment;
1.2 The
4
th
applicant on
count 2 kidnapping
and sentenced to 10 years
imprisonment, 4 years of which was suspended for 5 years on condition
that he is not convicted of a similar
offence committed during the
period of suspension.
[2]
On finalization of their trial this Court
mero motu
granted
the applicants leave to appeal against both the convictions and
sentences. The applicants have since lodged their notice
of appeal
against both the convictions and the sentences. They also approached
this court with an application to be admitted on
bail pending the
finalization of their appeal, which is what serves before this Court.
[3]
It is common cause that during the trial the applicants were out on
bail and religiously attended Court without failure. However,
upon
conviction, the court withdrew their bail, consequently they were in
custody on finalization of their sentencing. In the present
bail
application pending appeal, the applicants did not testify and relied
on their respective affidavits filed in court by their
counsel. The
applicants in their affidavits have,
inter alia,
disclosed
their respective ages, residential addresses and personal
circumstances which are as follows:
3.1. The first applicant
is 21years old, single; passed grade 12 and unemployed;
3.2. The second applicant
is 27 years old, single has passed N4 Machenical Engineering but
unemployed. He is a member of The Holy
Catholic Church in Zion
Ekhuanyeni. He was a student at Denver Technical College from
November 2014 to August 2016 where he had
registered Mechanical
Engineering course N4/NS;
3.3. The third applicant
is 24 years old, single, employed as a carpenter and plumber earning
R2000. 00 per month;
3.4. The fourth applicant
is 24 years old, single, with NS (Mechanical Engineering
qualification and earning R3000. 00 per month.
He was also doing
internship;
3.5. The fifth applicant
is 28 years old, single, has a diploma in Education and earning R4
500. 00 per month.
[4]
In their affidavits the applicants contended that they have been
advised of the provisions of the relevant sections pertaining
to bail
applications, in particular s60(4)(a) read with s60(5), s60(4(b) with
s60(6), s60(v)(c) with s60(7), s60(4)(d) with s60(8)
and s60(4)(e)
with s60(8)(A); their right to personal freedom as set out in s35 (1)
of the Constitution. They also stated that
they will not abscond.
[5]
Legal submissions were made on their behalf by their counsel. The
main thrust of the submission why bail should be granted to
the
applicants is that they have reasonable prospects of success on
appeal on conviction. The main motivation for this submission
was
that the trial Court in convicting the appellants relied on common
purpose without singling each applicant's role as advocated
in
Mgedezi
matter. In respect of sentence, it was submitted that
the applicants have a reasonable prospects of success and lighter
sentences
might be imposed.
[6]
The respective convictions and sentences of the applicants was a
sequel to the kidnapping of the deceased from his home, by
a group of
people which the applicants were part of. The reason advanced for the
kidnapping of the deceased was supposedly to question
him about goods
allegedly stolen from the Shabangu family so that the deceased can
disclose who all the culprits were. The applicants,
together with
unknown other people, took the deceased to the Shabangus' parental
home where he was severely assaulted inside the
garage. The deceased
with his legs and hands tied with a rope to prevent his escape, was
bundled in the back of the Shabangus'
bakkie and taken to a rivulet
where he was further assaulted and dipped in the rivulet. From there
the deceased was then taken
to where he was supposedly to point out
the people he was allegedly with during the theft of the Shabangu's
goods. Along the way,
the applicants with the group came across one
Stocks. It was alleged, under cross examination, that Stocks also
assaulted the deceased.
This alleged further assault, in my view,
took place while the deceased was in the custody of the applicants.
The deceased was
eventually taken to a local clinic where he was
pronounced dead on arrival.
[7]
It was submitted on behalf of the applicants that from the rivulet
the group came across one Stocks who further severely assaulted
the
deceased and it is this assault which caused the death of the
deceased. It was submitted further that in the circumstances
the
trial court misdirected itself in convicting the applicants on the
murder
count, bearing in mind the principles of
S
v Mgedezi and Other
[1]
on
common purpose.
[8]
In my view, it is not necessary for this Court, for purposes of the
bail application pending appeal to deal in detail with the
question
of common purpose, least I traverse the appeal itself, which is now
the preserve of the Court of appeal. However, I do
bear in mind the
fact that in the matter of
Ruiters
v S
[2]
it was
held that: "a finding that a person acted together with one or
more persons in a common purpose may be based upon the
first
mentioned person's active association in the execution of the common
purpose. The essence of the common purposes doctrine
is that if two
or more people, having a common purpose to commit a crime, act in
concert towards the accomplishment of that common
aim, then the
conduct of each of them (not their separate culpability) is, as a
matter of law, imputed to the other. There need
not necessarily be a
prior conspiracy to commit the criminal act. In order to satisfy the
requirements of the doctrine of common
purpose in respect of murder,
the active association must take place while the deceased is still
alive and before a mortal wound
or wounds have been inflicted by the
person or persons with whose conduct the first mentioned person
associated himself."
[9]
I must hasten to point out that the applicants failed to take the
stand and therefore the above submission that Stocks is the
person
who caused the death of the deceased remains pure speculation, if not
conjecture and does not, in my view, bolster the prospect
of success
on appeal on conviction on both counts. I further bear in mind that
in the matter of
Banda
and Others
[3]
it was
held that: "The term common purposes must not be regarded as a
magical incantation, nor as a panacea for determining
guilt. It is a
convenient and useful descriptive appellation of a concept, that, if
one or more persons agree or conspire to achieve
a collective
unlawful purpose, the acts of each one of them in execution of this
purpose are attributable to the others."
[10]
In the matter of
Yvonne
Beetge v The State
[4]
Maya
JA, (with Shongwe and Majiedt JJA concurring), held that:
"(4) an application
to be admitted to bail after conviction is governed by
section 321
of
the
Criminal Procedure Act 51of 1977
. These provisions prohibit the
suspension of a sentence imposed by a superior court by reason of an
appeal against conviction unless
the trial court thinks it fit to
order the sentenced accused's release on bail. Therefore, it behoves
the sentenced accused to
seek bail from the trial court. In so doing,
he or she must place before the court the necessary facts that would
allow it to exercise
its discretion in his or her favour and grant
bail...
[5]
The mere grant of leave to appeal against conviction, which
presupposes the existence of prospects of success, is not on its
own
sufficient to entitle a convicted accused to release on bail pending
appeal(R
v Milne
&
Erleigh
(4) 19SO (4) SA 601 (W)
at 603;
R v Mthembu
1961 (3) SA 468
(D) at 471A;
S v
Bruintjies
2003 (2) SCAR
S7S
(SCA) para 6). The seriousness of
the offence involved, the risk of absconding and the likelihood that
a non-custodial sentence
might be imposed are factors which the court
must also weigh in the balance (S
v Masoanganye
para
2012 (1)
SCAR 292
(SCA) at para 14.)"
[11]
In the matter of
S
v Bruintjies
[5]
the
Supreme Court of Appeal held that a person who has been found guilty
of a schedule 6 offence and been sentenced cannot claim
the benefit
of a lighter test than that of an unconvinced person (60(11)(a)). The
latter section demands of the applicant to persuade
the Court that
there exists exceptional circumstances warranting that the applicant,
in the interest of justice, be admitted to
bail.
In
casu,
the
applicants must persuade the Court that,
inter
alia,
there
is a reasonable prospect of success on appeal on conviction, and on
sentence. Where there is no reasonable prospect of a non-custodial
sentence being imposed, then the application must fail.
[6]
[12]
Kidnapping is a serious offence which violates the victim's right to
freedom in terms of s3S of the Constitution. Such an offence
lends
itself squarely within schedule 6 offences, just like the count of
murder does. Both counts individually, attract a long
imprisonment
sentence. The applicants were convicted of serious offences which
fall within the purview of schedule 6 of the
Criminal Procedure Act.
There
is no doubt in my mind that, society expects offenders of
serious violent crimes to be sentenced to long imprisonment term,
otherwise
its confidence in the justice system might be lost. I am
inclined to agree with Jozana AJ in
Khawuleza
v S
[7]
where
he opined that the courts in considering the release of a person on
bail pending appeal should also have regard to the interest
of
society. This, indeed accords with
s60
(S) (h) of Act 51 of 1977. The
applicants have not placed any evidence which demonstrate that their
release would be in the interest
of justice.
[13]
Besides, it is trite that the question of imposition of sentence is a
matter of the discretion of the trial court. The court
of appeal will
not lightly interfere with the exercise of a court's discretion,
unless It is shown that such discretion was capriciously
exercised,
or the sentence imposed is vitiated by irregularity or disturbingly
inappropriate;
vide
S v Rabie
[8]
s v
Kgosemore
[9]
There
is no foundation laid by the applicants which would warrant the
intervention of the court of appeal in this regard. In my
view, the
sentences imposed are not extra ordinarily severe as to induce a
sense of shock. I am therefore not persuaded that the
applicants have
a reasonable prospect of success on both convictions and sentence on
appeal, or a non-custodial sentence might
be imposed.
[14]
In the result all the applicants' applications to be admitted to bail
pending appeal are dismissed.
_______________
N.
M. MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING
: 08 NOVEMBER 2016
DATE
OF JUDGMENT
: 07
DECEMBER 2016
APPLICANTS'
ADV
: ADV A. C. KLOPPER
INSTRUCTED
BY
: DU TOIT ATTORNEYS.
RESPONDENTS'
ADV
: ADV
R MOLOKOANE
INSTRUCTED
BY
:DIRECTOR OF PUBLIC PROSECUTIONS: PRETORIA TOWERS
[1]
1989 (1) SA 687(A).
[2]
(2014) JOL 32598 (ECG).
[3]
[1990] 4 ALL SA 152
(BG).
[4]
(925/12 [2013) ZASCA 1(11 February 2013)
[5]
Supra.
[6]
V,lde Rawat
1999 (2) SACR 398
(W) where the Court at 401 g-h.
[7]
[2005] jol 14239 (TK) at page 4
[8]
1975 (4) SA (A) 855 at 8570-E.
[9]
1999 (2) SACR 238
(SCA) at 241 para [10].