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[2016] ZAGPPHC 1043
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Setshedi v S (A436/2014) [2016] ZAGPPHC 1043; 2017 (1) SACR 504 (GP) (14 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
CASE
NO: A436/2014
DATE:
14/12/2016
Reportable:
Yes
Of
interest to other judges: No
Revised.
IN
THE MATTER BETWEEN
MPHO
ABRAM
SETSHEDI APPELLANT
AND
THE
STATE RESPONDENT
JUDGMENT
PRINSLOO,
J
[1] On
30 November 2005, the appellant, then 23 years old, was convicted in
this court on the following six charges:
1. murder;
2. contravention of section 3 of Act 60 of 2000 (unlawful possession
of a firearm);
3. contravention of section 90 read with section 120(1) of Act 60 of
2000 (unlawful possession of ammunition);
4. murder;
5. contravention of section 3 of Act 60 of 2000 (unlawful possession
of a firearm);
6. contravention of section 90 read with section 120(1) of Act 60 of
2000 (unlawful possession of ammunition).
[2]
There were three other charges, namely attempted murder and the two
contraventions of Act 60 of 2000, but no evidence was offered
with
regard to those charges and the appellant was correctly discharged in
connection therewith.
[3] On
1 December 2005, the appellant, as accused, was sentenced as follows
by the learned trial Judge with regard to the six charges:
1. on count 1, murder, eighteen years' imprisonment;
2. on count 2, the illegal possession of a firearm, four years'
imprisonment;
3. on count 3, the illegal possession of ammunition, one year
imprisonment;
4. on count 4, the second murder, eighteen years' imprisonment;
5. on count 5, the illegal possession of a firearm, four years'
imprisonment;
6. on count 6, the illegal possession of ammunition, one year
imprisonment.
The
learned trial Judge, after stating that he took the cumulative effect
of the sentences into account, ordered that six years
of the eighteen
years imposed on count 4 would run concurrently with the
eighteen years imposed on count 1. The
learned Judge
further ordered that the four years and one year imposed on counts 5
and 6 respectively would run concurrently with
the four years and one
year imposed in respect of counts 2 and 3 (I add, simply for the
sake of detail, that, according to
the record, the learned Judge only
mentioned that the four years and one year imposed on counts 5 and 6
respectively would run
concurrently with the four years imposed on
count 2, evidently overlooking the one year imposed in respect of
count 3. This
was obviously an oversight because the learned
Judge, in conclusion, pointed out that the effective sentence would
be one of 35
years' imprisonment, meaning that the one year sentence
on count 3 was taken into account).
[4] On
22 March 2013, almost eight years after the sentence was imposed, and
after the learned trial Judge had also, sadly, passed
away, leave was
granted to the appellant, by the Deputy Judge-President of this
Court, to appeal against the convictions as well
as the sentences.
[5]
The appeal came before us on 11 November 2016. Before us,
Mr Kgagare appeared for the appellant and Ms Mahomed
appeared for the State.
Brief
summary of the underlying facts and the evidence which led to the
convictions
(i)
Counts 1, 2 and 3
[6]
These three charges relate to the murder of Mr Niko Mashabana in
Mamelodi East, district Pretoria, on 1 December 2004 (the
first
murder).
[7]
Count 1 deals with the murder, and counts 2 and 3 with the unlawful
possession of a firearm and ammunition respectively.
[8]
Patrick Thabo Mothabela testified that he is a cousin of the
appellant. On 1 December 2004 the witness was at
his
home in Mamelodi East.
The
deceased arrived at the home of the witness in the company of another
person, one Abram. They said they were looking for
the
appellant. They said they wanted a firearm from the appellant.
At
about 12:30, when the two visitors were still there, the appellant
arrived. The witness was standing at the door of the
sitting
room, and when the accused went in to meet the visitors, he heard the
deceased saying "I want my firearm".
The witness
heard a firearm being cocked and a shot was fired. The shot was
fired by the appellant. The appellant shot
the deceased.
The appellant went outside and there he fired another shot. The
shot was not fired at anyone in particular,
but perhaps "to prevent
us from going out of the house". The deceased was not
fighting, neither was he armed.
[9]
The version put to the witness in cross-examination is that the
appellant found the deceased pointing a firearm at the witness.
This the witness denied. He had no quarrel with the deceased
and did not even know him.
It was
put that the accused and the deceased then struggled for possession
of the firearm. This the witness also denied.
It was put
that, during the struggle, a shot went off which hit the deceased.
This was also denied. If this had happened,
the witness would
have seen it.
The
witness insisted that the appellant was carrying the firearm.
He added that on the 30
th
(presumably of November,
the previous day, although he did not say so) the appellant also
arrived with a firearm, showed it
to the witness and said he needed
some bullets for the firearm. The witness has neither a licence
to possess a firearm nor
does he have a firearm. This evidence
of the witness was denied on behalf of the appellant in
cross examination.
The witness insisted that the appellant
came to see him on the 30
th
.
[10]
When he gave evidence in his own defence, the appellant testified
that when he arrived at the house he saw that the deceased
was
pointing a firearm at the witness and at one Percy Mothabela (this
was not put in cross-examination of Patrick, neither was
Percy called
as a witness). The appellant decided to disarm the deceased,
grabbed him and they started wrestling for the
firearm. In the
process the deceased tried to point the firearm at the appellant and
then he shot himself (presumably by
accident). The appellant
then left the house.
[11]
In cross-examination, the appellant confirmed that he did not have a
licence to own a firearm or ammunition. He said
he did not have
a firearm. He confirmed that the witness Patrick was his
cousin.
The
appellant confirmed that he was in the process of helping Patrick by
grabbing the firearm. When asked why Patrick would
then lie to
implicate him of the killing when the appellant had probably saved
his life, the appellant was equally surprised.
The
appellant said, in cross-examination, that the deceased had fallen
down whilst holding onto the firearm. He did not take
the
firearm with him. He denied the evidence about his visit to
Patrick on 30 November.
(ii)
Accounts 4, 5 and 6, and also the evidence of the investigating
officer, dealing with both the occurrences
[12]
Counts 4, 5 and 6 relate to the murder of Fanyana Daniel Selepe, also
in Mamelodi East, on 4 December 2004.
Count 4 deals
with the murder, and counts 5 and 6 with the unlawful possession of
the firearm and ammunition respectively.
[13]
Maria Selepe testified that she was the grandmother of the deceased,
Fanyana Daniel Selepe.
[14]
On 4 December 2004 she was at home when the deceased also came home.
[15]
Thereafter the deceased left her home, after they had spoken to each
other.
[16]
When the deceased went out, she heard three gunshots. She had
been sitting outside. She got up and looked in the
direction
that the deceased had walked and saw him lying on the ground.
She went back into the house, informed "the
people who were
sleeping in the house" that the deceased had been shot and went
to where the deceased was lying. When
she asked him what
happened he said "it is Mpho" (this is a reference to the
appellant). It was clear, at
that stage, whilst she was
holding onto the deceased, that he was busy dying. People
started gathering around.
[17]
The witness also pointed out the appellant in court as the person
Mpho to whom the deceased had referred.
[18]
She knew the appellant before the incident. He had previously
tried to shoot at the deceased but he shot at the wrong
person, and
missed. She observed that the deceased had been shot on the
side of his body, on the abdomen. He was bleeding.
His
breath was getting "lower and lower" and it was obvious
that he was busy dying. In cross examination
she said
that the incident happened at about 22:00. The area was well
lit with Apollo lights.
When
the deceased left, he was in the company of a "certain boy"
which the witness did not know.
[19]
Significantly, the witness said that as she was leaving the yard the
appellant walked past her house. He went to sit
with her
next door neighbours. This was after the shots had been
fired. It was shortly thereafter.
[20]
In cross-examination, it was put to the witness that the accused
would deny that he shot the deceased on that occasion.
She
answered:
"It is him. You missed twice and you did this on purpose.
You said that you wanted to cause him some harm.
Everything
that he did to the accused, the accused informed me about it."
The
learned Judge asked the witness what the accused said to her and she
answered, somewhat confusingly, that a younger brother
of the accused
(obviously the appellant) had been shot in the leg by the appellant
and thereafter the latter shot the deceased.
He wanted to kill
both of them. She later said that the appellant did not tell
her this. She insisted that the appellant
and the deceased had
been involved in a fight. The deceased came to her home to sort
the matter out and to discuss it.
Perhaps
significantly, the witness said that the accused (appellant), on the
day when he came to her house, said to the witness
'because I was
defending my children, he was going to show me".
[21]
She insisted that she saw the appellant near the scene shortly after
the shooting. She told bystanders that it was the
appellant who
had shot the deceased.
[22]
Ratumela Moufhe was the investigating officer. He testified
about certain exhibits, cartridges that were used as part
of the
evidence.
[23]
The "first batch" of cartridges he collected at the house
of Patrick, on 1 December 2004, and opened a docket
under a
specific case number. He later said it was only one cartridge
that he collected.
[24]
On 5 December 2004 he went to the scene where the second murder
occurred in Batili Street Mamelodi. He confirmed
that that
is where the deceased Selepe was killed. He found two empty
cartridges. He opened a case docket under another
CAS number.
[25]
When he got to the scene (presumably of the second murder) he was
informed that the appellant was the suspect and he arrested
him where
he found him in prison. He did not know the appellant before
arresting him.
[26]
The first cartridge he sent to the Forensic Department for analysis
and the other two cartridges which he found on 5 December,
he
handed over to Inspector Visser, the expert photographer. It
was common cause between the parties that the exhibits had
been
properly submitted to the Forensic Department for analysis. It
was common cause that the two shells that Visser refers
to in
exhibit "L" are the two shells which he received from
the investigating officer. This was a formal admission
that was
recorded.
[27]
When the investigating officer arrived at the scene on 1 December,
the deceased, Niko, was no longer there. It is
undisputed that
he was rushed to hospital where he passed away. He found the
shell in the yard. It was the yard where
the deceased had been
killed.
[28]
The shell that he found on 5 December 2004 was found where that
deceased (Fanyana) had been killed. The body of Fanyana
was
still there, and the shells were lying about three metres away.
[29]
The cross-examination of the investigating officer was short and
sweet: at the scene of the first murder he did not find any
cartridges inside the house.
The
cartridge was outside the house next to the door.
As to
the second murder, after he received information about the suspected
perpetrator, he searched for him but could not find him
at the scene.
[30]
When the appellant testified in his own defence about the second
murder, he said that he knew the deceased who was not staying
far
from his aunt's house. He had never had a problem with the
deceased. On the day of the alleged murder he was at
his aunt's
place. The aunt stayed about 70 metres from where the
deceased had stayed. He left the aunt's house
at about 20:00.
He never went back there but went straight home.
[31]
He denied that he killed the deceased Fanyana.
[32]
In his judgment, the learned trial Judge, significantly, recorded
that it was common cause between the parties that the cartridges
found at the first murder scene and the cartridges found at the
second murder scene had been fired, according to the Forensic and
Ballistic reports, exhibits "H", "M" and "T",
by the same gun. In other words, the same gun
had been used to
kill both the first deceased Niko and the second deceased Fanyana.
[33]
The learned Judge pointed out that the firearm was not found at the
scene where the first deceased, Niko, had been shot.
The
learned Judge, correctly, pointed out that this is understandable,
because the same firearm was used a few days later to shoot
Fanyana.
[34]
As to the first killing, the learned Judge found that Patrick was an
impressive witness. He rejected the version of the
appellant
before convicting him on the first three counts.
[35]
As to the grandmother of Fanyana, the learned Judge found that she
was a satisfactory witness. The visibility was good.
The
learned Judge found corroboration for her evidence in the "dying
declaration" of the deceased Fanyana who stated
that the
appellant was the perpetrator who shot him.
[36]
In Schmidt,
Bewysreg,
4
th
edition, the learned
author under the heading "Sterwensverklarings" says the
following on page 491:
"Daar is 'n gemeenregtelike hoorsê-uitsondering met die
strekking dat 'n verklaring deur die slagoffer van doodslag
omtrent
die oorsaak daarvan, in strafregtelike verrigtinge toelaatbaar is.
Hierdie uitsondering was om die een of ander rede
spesifiek in
artikel 223 van die Strafproseswet opgeneem, maar is deur Wet 45 van
1988 herroep toe die diskresie om hoorsê
toe te laat ingevoer
is.
Die rede vir toelaatbaarheid is die onwaarskynlikheid dat 'n persoon
wat sy naderende dood besef, 'n valse verklaring sal doen.
Die verklaarder moes bevoeg gewees het om getuienis af te lê.
Hy moes bewus gewees het dat hy sou sterf.
Die verklaring was slegs toelaatbaar in 'n geding waarin 'n persoon
van moord of manslag aangekla was en die verklaarder die slagoffer
was. Die verklaring is gewoonlik deur die staat teen 'n
beskuldigde wat die doodslag sou veroorsaak het, aangebied, maar
dit
was ook toelaatbaar as dit die beskuldigde begunstig het, in welke
geval die vereistes dieselfde was."
See
also the discussion in Hiemstra's
Criminal Procedure
,
loose-leaf edition, at 24 84. It appears that such
evidence is still admissible and "useful regarding consideration
of the discretionary admission of hearsay evidence and the evaluation
of the evidential value thereof".
[37]
The learned Judge, more particularly, found corroboration for the
evidence of the grandmother in the undisputed fact that the
same
weapon was used to kill both Niko and Fanyana. Patrick said
that the appellant was the person in possession of the firearm
when
he shot Niko. This points to the reasonable inference that the
appellant shot Fanyana with the same firearm.
[38]
Against this background, the appellant was convicted of both the
murders.
[39]
This finding was not contested before us by the counsel for the
appellant.
[40]
The only attack offered on the convictions on behalf of the appellant
was that the convictions on counts 2 and 3 (unlawful
possession of a
firearm and ammunition respectively) and counts 5 and 6 (the same
offences) amounted to a splitting of charges.
The learned trial
Judge had found that the appellant had possessed the same firearm
over the period which elapsed between the two
murders.
[41]
The subject of splitting of charges is discussed by the learned
author in
Hiemstra
's,
supra,
at 14 4 to 14 5.
The "test" for splitting is twofold. The one is the
"same evidence test":
if the evidence which is necessary to
establish the one charge also establishes the other charge, there is
only one offence.
The other is the "single intent test".
I need not dwell on the details.
The
argument about splitting of charges advanced on behalf of the
appellant was conceded by Ms Mahomed on behalf of the State
and,
it seems to me with respect, correctly so.
[42]
Consequently, the appeal against the convictions falls to be
dismissed, with the exception that the convictions in respect
of
counts 5 and 6 ought to be set aside.
[43] I
turn to the sentences imposed.
The
sentences imposed
(i)
The provisions of section 51 of the Criminal Law Amendment Act,
Act 105 of 1997, were applied for sentence purposes, but not
mentioned
in the charge-sheet, neither was the appellant timeously
apprised of the applicability thereof
[44]
The possible application of the provisions of section 51 of Act 105
of 1997 ("the Act"), for sentence purposes,
was not
mentioned in the charge-sheet.
[45]
The involvement of the Act, for purposes of these proceedings during
the trial, was not mentioned at the commencement of the
hearing.
There was only an exchange between the learned trial Judge and the
prosecutor, with the learned Judge asking the
prosecutor whether he
had explained the charge to the accused, and when this was answered
in the affirmative, he was asked whether
the accused understood the
charges and, again, this was confirmed.
[46]
The appellant pleaded not guilty, without offering any
plea-explanation.
[47]
The first time the Act was mentioned, was when counsel for the
appellant addressed the learned Judge before sentence was passed
in
the following terms:
"It means that it should just be tempered with some mercy and
that when the court assesses a sentence, the court should at
all
costs avoid anger otherwise the sentence will break down the accused
as a human being. And for that reason M'Lord, I understand
what my learned colleague say (
sic
) they will press for the
provisions of Act 105 of 1977 (
sic
). If that is the case
M'Lord ... [intervenes]
COURT
: I listened to him, but as far as I am concerned
they are not applicable.
MR MOKOBI
: I was under the same impression M'Lord.
But if all in all M'Lord, beside these factors I have alighted to the
court,
there are no substantial and compelling circumstances in this
matter. That is all."
And,
at the end of the debate before sentence was passed, the prosecutor
said the following:
"Otherwise as my colleague has put it very clearly there is no
substantial and compelling circumstances. Thanks M'Lord."
[48]
In passing sentence, the learned Judge, in concluding that the
murders had not been proved to have been pre planned, said
the
following:
"They might have run into each other by chance and therefore
section 51(1) Act 105 of 1977 (
sic
) is not applicable.
Section 51(2) is in fact applicable which states that for murder
under any circumstances except as mentioned
in part I of
schedule 2, fifteen years is the minimum sentence."
[49]
As I mentioned earlier, the learned Judge went on to sentence the
appellant to eighteen years' imprisonment for each of the
two
murders, ordering six years of the second murder sentence to run
concurrently with the eighteen years sentence in respect of
the first
murder.
[50]
The argument offered by Mr Kgagare, if I understood it correctly, was
that, where the appellant was not timeously warned that
the Act would
be applied for sentence purposes, such failure, as a matter of
course, amounts to substantial and compelling circumstances,
as
intended by the provisions of section 51(3)(a) of the Act, so that
the learned Judge, for that reason, should have imposed a
sentence
less than the prescribed minimum sentence of fifteen years'
imprisonment in respect of both the murder convictions.
[51]
In
S v Ndlovu
2003(1) SACR 331 (SCA), one of the leading cases
on this subject, the following is said at 337a c:
"The enquiry, therefore, is whether, on a vigilant examination
of the relevant circumstances, it can be said that an accused
had had
a fair trial. And I think it is implicit in these observations
that where the State intends to rely upon the sentencing
regime
created by the Act a fair trial will generally demand that its
intention pertinently be brought to the attention of the
accused at
the outset of the trial, if not in the charge-sheet then in some
other form, so that the accused is placed in the position
to
appreciate properly in good time the charge that he faces as well as
its possible consequences. Whether, or in what circumstances,
it might suffice if it is brought to the attention of the accused
only during the course of the trial is not necessary to decide
in the
present case. It is sufficient to say that what will at
least be required is that the accused be given sufficient
notice of
the State's intention to enable him to conduct his defence properly."
[52]
At 337g i, the following is said:
"In the circumstances of this case it cannot be said that the
appellant suffered no prejudice from the magistrate's failure
to warn
him of the consequences of his finding, should he make such a
finding, that the weapon found on him was a semi automatic
firearm. By invoking the provisions of the Act without it
having been brought pertinently to the appellant's attention that
this would be done rendered the trial in that respect substantially
unfair. That, in my view, constituted a substantial and
compelling reason why the prescribed sentence ought not to have been
imposed."
[53]
It should be added, with some emphasis, that the circumstances in
Ndlovu
were markedly different from those in the present
matter: the appellant in that matter was charged with contravening
two sections
of the Arms and Ammunition Act 75 of 1969, namely
section 2 (unlawful possession of a firearm) and section 36 (unlawful
possession
of ammunition). In the charge-sheet his attention
was only drawn to the provisions of section 39(2) of the said Act
stipulating
the penalties for contravening that Act. The
penalty for contravening section 2 was a fine of R12 000,00 or
imprisonment
of three years or both. The very reference to that
section was calculated to convey the impression that the State would
seek
the penalty provided for in that Act –
Ndlovu
at
335d g.
[54]
In
Ndlovu
, the appellant was also legally represented during
the trial – at 335a.
[55]
During the course of the trial, the learned magistrate raised the
question whether the firearm in question was a semi-automatic
weapon. When this was confirmed, it was concluded by the lower
court that the case resorted within the ambit of section 51(2)(a)(i)
of the Act prescribing a minimum sentence of fifteen years'
imprisonment absent substantial and compelling circumstances.
[56]
In these circumstances, it is clear, as concluded by the learned
Judge of Appeal, that the appellant was prejudiced because
he was not
forewarned that the minimum sentence regime would be applied instead
of the provisions of the Arms and Ammunition Act
which were mentioned
in the charge-sheet.
[57]
In
S v Chowe
2010(1) SACR 141 (GNP) the provisions of the Act
were only mentioned during sentencing by the learned magistrate.
At
149d-e, the learned Judge says the following:
"From the above-mentioned magistrate's statement it is clear
that the appellant had not been warned at the beginning of the
case
that the minimum sentence was applicable. The fact that the
accused was legally represented, in my view, does not take
away the
need to inform the accused that such minimum sentencing dispensation
of the Act would be relied upon for sentencing.
Section
35(3)(a) of the Constitution requires that the accused be informed of
the charge with sufficient detail to answer to it.
This
entails, in my view,
inter alia
, the applicability of the
minimum sentencing provisions of the Act."
[58]
In
Chowe
, the learned Judge went on to find that the
magistrate had erred in coming to the conclusion that there were no
substantial and
compelling circumstances. The accused had been
convicted of robbery with aggravating circumstances and unlawful
possession
of a firearm. In terms of the minimum sentence
regime, he was sentenced to fifteen years' imprisonment for the
robbery and
three years' imprisonment for the unlawful possession of
the firearm, the sentences to run concurrently. The learned
Judge,
after coming to the conclusion which he did, reduced the
sentence for the robbery to ten years' imprisonment.
[59]
As I read the judgment, there was no specific finding to the effect
that failure to warn an accused that the minimum sentence
regime
would come into play,
per se
, or as a matter of course,
constitutes substantial and compelling circumstances requiring a
reduction of the prescribed minimum
sentence. In
Chowe
,
the learned Judge, as I said, reduced the sentence after
considering whether or not there were such circumstances.
[60]
As I read
Ndlovu
, there is also no rule, cast in stone, that
failure to forewarn the appellant automatically constitutes
substantial and compelling
circumstances. It depends on
the particular case, and the enquiry is whether or not there had been
an unfair trial because
of the failure to bring the relevant minimum
sentence regime, and the intention to apply same, to the attention of
the appellant.
[61] I
turn to some judgments dealing with aspects related to the
application of the minimum sentence regime.
• In
S v Mtembu
2011(1) SACR 272 (KZP), the Full Court of
that Division held that the failure of the trial Judge to apprise the
defence that a
higher sentence than the minimum was contemplated, was
not a defect in the proceedings – at 279i.
In the present case, the learned Judge also did not indicate in
advance that he was contemplating sentences higher than the
prescribed
minimum of fifteen years.
• In
S v Mathebula
2012(1) SACR 374 (SCA) it was held, at
378e-h, that the proper approach to be adopted by a sentencing court
which contemplates
imposing a sentence higher that the prescribed
minimum sentence is for it, in its judgment on sentence, to identify
on the record
the aggravating circumstances that take the case out of
the ordinary.
In that regard, the learned Judge of Appeal quoted, with approval,
what was said in
S v Mbatha
2009(2) SACR 623 (KZP) at
631f j:
"On that approach there is as much a necessity for the court in
its judgment on sentence to identify on the record the aggravating
circumstances that take the case out of the ordinary, as there is for
it in the converse situation to identify those substantial
and
compelling circumstances that warrant the imposition of a lesser
sentence than the prescribed minimum. The trial Judge
should
identify the circumstances that impel her or him to impose a sentence
greater than the prescribed minimum and explain why
they render the
particular case one where a departure from the prescribed sentence is
justified. The factors that render
the accused more morally
blameworthy must be clearly articulated. In doing so the court
must also weigh in the balance of
any factors, such as youth,
provocation or past ill treatment by the deceased that point in
the opposite direction.
It is only where the balance is clearly
in favour of the imposition of a sentence greater than the prescribed
minimum that such
a sentence should be imposed. Otherwise the
whole purpose of a reasonably consistent and standardised approach to
sentence
in the case of the most serious crimes will be defeated, as
it will be open to those judges who have particularly stern views on
sentence, and regard Parliament's response to serious crime as
inadequate, to impose those views in disregard of the purpose of
the
legislation."
In the present case, the learned trial Judge did not mention the
factors which inspired him to impose sentences of eighteen years
instead of the prescribed minimum of fifteen years' imprisonment for
the two murders.
In
Mathebula
, the learned Judge of Appeal, in adopting the
reasoning of the learned Judge in
Mbatha
, upheld an appeal
against a judgment by a Full Bench of this court, dismissing an
appeal against sentence, and reduced a sentence
of twenty years'
imprisonment for robbery, to one of fifteen years.
• The most recent word on this subject, to which we were
referred, is contained in the judgment of
Machongo v S
(20344/14)
[2014] ZASCA 179
(21 November 2014).
The appellant was convicted of robbery with aggravating circumstances
and murder. The facts before the court were that the
appellant,
and two accomplices, attacked the deceased in an effort to deprive
him of his motor vehicle. When the deceased
produced a firearm
to defend himself, the appellant deprived the deceased of the firearm
and shot and killed him.
The appellant was sentenced to life imprisonment on the murder charge
and twenty years' imprisonment on the charge of robbery with
aggravating circumstances.
The main ground of appeal to the Full Court was that the trial court
erred in relying on the provisions of section 51(1) of the
Criminal
Law Amendment Act 105 of 1997 ("the Act"
supra
)
because no mention was made in the indictment to inform the appellant
of the applicability of the Act. The trial Judge also
failed to
warn the appellant of its applicability. In granting leave to
the Full Court, the trial Judge acknowledged that
he erred in
applying the provisions of the Act. The appellant contended
that failure to mention and to warn him of these
provisions
ipso
facto
resulted in the miscarriage of justice (
Ndlovu, supra
,
was relied on).
The Full Court agreed that the omission to mention the applicability
of the minimum sentence regime was irregular and constituted
a
misdirection entitling it to interfere with the sentence.
However, it concluded that "the normal inherent penal
jurisdiction of the High Court is applicable and the court will have
to consider the sentence afresh". It then embarked
on an
exercise to consider the aggravating as well as the mitigating
factors. It concluded that from the facts of this
case and
evidence on record, the sentences of life imprisonment on the murder
charge and twenty years' imprisonment on the charge
of robbery with
aggravating circumstances are neither shockingly inappropriate nor
induce a sense of shock. Lastly it said
that the sentences
imposed by the trial court were fair and justified in the
circumstances –
Machongo
at paragraph [5].
Before the Supreme Court of Appeal, the appellant contended that the
trial court misdirected itself by relying on the provisions
of the
minimum sentence regime where no mention was made at all of its
applicability in the indictment. It was also
argued that
the Full Court did not consider the sentence afresh but simply
"regurgitated" the sentence imposed by the
trial court
without more.
The respondent conceded that the failure to mention or forewarn the
appellant of the applicability of the provisions of section
51(1) and
51(2) of the Act, indeed, resulted in an unfair trial.
It appears that the Full Court also said the following in its
judgment dismissing the appeal:
"[21] It is trite that a Court of Appeal will only interfere
when the sentence imposed by the trial court is vitiated by an
irregularity or misdirection or when the sentence is shockingly
severe, disturbingly inappropriate and totally out of proportion
to
the offence committed."
-
Machongo
at paragraph [7].
The learned Judge of Appeal then said the following:
"[10] It is settled law that failure to forewarn or to mention
the applicability of the minimum sentence is a fatal irregularity
resulting in an unfair trial in respect of sentence. The
question is, having come to the conclusion that a misdirection has
been committed, what next should the Appeal Court do? The
answer is and has always been that the Appeal Court must consider
the
sentence afresh. What then does considering the sentence afresh
mean?
[11] Certainly it does not mean what the Full Court said in paragraph
[21] of its judgment referred to in paragraph [7] above.
I therefore agree with counsel for the respondent that the test
applied was incorrect. Considering a sentence afresh
must
ineluctably mean, setting aside of the sentence of the trial court,
inter alia
, and conducting an enquiry on sentence as if it had
not been considered before. In other words, the Appeal Court
must disabuse
itself of what the trial court said in respect of
sentence – it must interrogate and adjudicate afresh the triad
in respect
of sentence ... Its task would be to impose a
sentence which it thinks is suitable in the circumstances, without
comparing
it with the one imposed by the trial court. The Full
Court erred in my view by stating that an Appeal Court 'will only
interfere
when the sentence is totally out of proportion ...'
What the Full Court did was not considering the sentence afresh ..."
(The text of the computer print-out obtained from the court library
is incomplete in various respects.)
The learned Judge of Appeal also said the following:
"[13] Counsel for the respondent also raised the question that
the High Court does not possess inherent penal jurisdiction.
He submitted that a trend is developing in their Division to
refer to an inherent jurisdiction when an argument where the
phrase
'inherent jurisdiction' is mentioned. I have already said
that the power of an Appeal Court in respect of sentencing
resides in
the provisions of section 276 of the CPA and nowhere else. It
is not only salutary practice but advisable too
that practitioners
need to be careful not to loosely use some of the expressions or
phrases when preparing their arguments ...
[14] It is not in dispute that the trial court erred and misdirected
itself in respect of sentence as the appellant had not been
forewarned of the applicability of the Minimum Sentence Act. It
is also not in dispute that the Full Court erred in its approach
by
using an incorrect test when sentencing the appellant afresh.
These series of misdirections placed this Court at large
to consider
the sentence as if it had not been considered before."
[62]
From the aforegoing, it appears that this court, which is bound by
the judgment of the Supreme Court of Appeal, must accept
that the
proper approach, in considering this appeal, is the following:
1. It is settled law that failure to forewarn of, or to mention the
applicability of the minimum sentence regime is a fatal irregularity
resulting in an unfair trial in respect of sentence (it is not
stated, neither does it appear to be so, for reasons mentioned,
that
such failure also,
ipso facto
, constitutes substantial and
compelling circumstances which have to lead to a reduction of the
sentence).
2. Having come to the conclusion that a misdirection has been
committed, the Appeal Court must consider the sentence afresh.
3. Considering a sentence afresh must ineluctably mean setting aside
the sentence of the trial court, and conducting an enquiry
on
sentence as if it had not been considered before. In other
words, the Appeal Court must disabuse itself of what the trial
court
said in respect of sentence – it must interrogate and
adjudicate afresh the triad in respect of sentence. Its
task is
to impose a sentence which it thinks is suitable in the
circumstances, without comparing it with the one imposed by the
trial
court.
4. Under these circumstances, it is inappropriate to apply the
approach that the Appeal Court must be slow to interfere with the
sentence unless it is "shockingly inappropriate or induces a
sense of shock." -
Machongo
at paragraph [5].
It is also put as follows by the learned author S S Terblanche
Guide to Sentencing in South Africa
2
nd
edition at
pages 410-411:
"The discretion to impose sentence belongs to the trial court.
Owing to this fact the Appeal Court may not and shall
not interfere
with the imposed sentence unless it is convinced that the sentence
discretion has been exercised improperly or unreasonably."
For the sake of brevity, I do not repeat the trite authorities quoted
by the learned author.
5. The trial Judge should identify the circumstances that impel her
or him to impose a sentence greater than the prescribed minimum
and
explain why they render the particular case one where a departure
from the prescribed sentence is justified –
Mbatha supra
and
Mathebula supra
.
(ii)
Considering the sentence afresh, as per
Machongo, supra
,
at paragraphs [5] to [14]
[63]
As per
Machongo
, paragraph [11], it appears that the task of
this court is "to impose a sentence which it thinks is suitable
in the circumstances,
without comparing it with the one imposed by
the trial court". Despite this instruction from the Higher
Court, I assume,
that in the course of conducting this exercise,
this Court of Appeal is not prevented from pointing out perceived
misdirections
on the part of the learned Judge
a quo
, if
any, when the sentence now being challenged was passed.
It seems to me necessary that this may have to be done in
the
course of motivating a fresh sentence, if any, which this Court of
Appeal may arrive at.
[64] I
turn to the personal circumstances of the appellant at the time when
sentence was imposed.
He was
23 years old, unmarried, but the father of a child who was then
14 months old. He only passed Standard 6
(it would be
Grade 8 in modern terms) at school.
He
worked until August of the previous year as a labourer, earning
R560,00 per week.
He was
a first offender.
He had
been in custody for eleven months by the time he was sentenced.
[65]
As to the first murder, it seems to me, on the weight of the
evidence, that there was some friction between the appellant and
the
deceased Niko before the shooting. The witness Patrick said
that the deceased and his friend, when they visited the witness,
said
they wanted a firearm from the deceased. To the contrary,
Patrick also said in cross-examination that he heard Niko
saying
"I want my firearm". That is when the firearm
was cocked and a shot was fired.
Consequently,
it appears as if, on the inherent probabilities, the shooting of Niko
was inspired by some pre existing disagreement
between the
appellant and the deceased.
In the
result, I am not in sympathy with the conclusion of the learned Judge
that he had to draw the inference that the shooting,
in respect of
both murders, was perpetrated "just purely out of the pleasure
of shooting". This, in my view, would
have been an
aggravating factor.
[66]
The same observations apply as far as the second shooting is
concerned. Grandmother Selepe made it quite clear that there
had been bad blood between the deceased Fanyana and the appellant.
The latter had threatened to cause harm to the deceased
on an earlier
occasion and even shot his younger brother, presumably by accident,
in the process of an altercation with the deceased.
They had
been involved in a fight before. On the weight of the
evidence, this, also, inspired the appellant, on the
probabilities,
to shoot the deceased Fanyana. This is different from a
situation where Fanyana was shot "out of the
pleasure of
shooting".
[67]
No reasons were given by the learned Judge for increasing the
prescribed sentence of fifteen years by three years in each
instance. This failure flies in the face of the authorities
quoted.
[68]
Taking all the factors into account, including the personal
circumstances of the appellant, and the fact that he had been in
custody for eleven months prior to being sentenced, which is a factor
which has to go into the scale for purposes of considering
a proper
sentence, I find no basis for imposing a sentence in excess of the
prescribed minimum of fifteen years.
[69]
Given the cumulative effect of the two sentences, it would seem to me
to be appropriate to order, as the learned Judge did,
that a portion
of the one murder sentence should run concurrently with the other
murder sentence.
[70]
As to the five years sentence imposed in respect of count 2 (illegal
possession of a firearm) and count 3 (illegal possession
of
ammunition) I consider that to be an appropriate sentence.
[71]
If six years of the second fifteen years sentence were to run
concurrently with the first fifteen years sentence, the total
sentence in respect of the two murders would come to twenty four
years and, if the sentence in respect of counts 2 and 3 is added,
the
result would be a total sentence of twenty nine years' imprisonment.
[72]
In all the circumstances, the sentence ought to be antedated to 1
December 2005, the date when the sentence was first imposed,
in terms
of the provisions of section 282 of the Criminal Procedure Act, 51 of
1977 ("the CPA").
The
order
[73] I
make the following order:
1. The appeal against the convictions in respect of counts 1, 2, 3
and 4 is dismissed.
2. The appeal against the convictions in respect of counts 5 and 6 is
upheld and those convictions and sentences are set aside.
3. The appeal against the sentences in respect of counts 1, 2, 3 and
4 is upheld in part and dismissed in part.
4. The order made by the learned Judge
a quo
in respect of
sentence is set aside and replaced with the following:
"(i) in respect of count 1, the accused is sentenced to fifteen
years' imprisonment;
(ii) in respect of count 2, the accused is sentenced to four years'
imprisonment;
(iii) in respect of count 3, the accused is sentenced to one year
imprisonment;
(iv) in respect of count 4, the accused is sentenced to fifteen
years' imprisonment;
(v) it is ordered that six years of the sentence in respect of count
4 will run concurrently with the sentence in respect of count
1,
resulting in an effective term of imprisonment of twenty nine years."
5. The sentence now imposed is antedated, in terms of section 282 of
the CPA, to 1 December 2005.
W R C
PRINSLOO
JUDGE OF THE
GAUTENG DIVISION, PRETORIA
I
agree
A A
LOUW
JUDGE OF THE
GAUTENG DIVISION, PRETORIA
I
agree
S P
MOTHLE
JUDGE OF THE
GAUTENG DIVISION, PRETORIA
HEARD
ON: 11 NOVEMBER 2016
FOR
THE APPELLANT: ADV KGAGARE
INSTRUCTED
BY: THE LEGAL AID BOARD
FOR
THE RESPONDENT: ADV S MAHOMED
INSTRUCTED
BY: THE DIRECTOR OF PUBLIC PROSECUTIONS