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
>>
2015
>>
[2015] ZAGPPHC 35
|
|
Yaka and Others v S (A486/2013) [2015] ZAGPPHC 35 (3 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION: PRETORIA)
CASE NO: A
486/2013
DAY: 3 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between
SENZO
YAKA
........................................................................................
FIRST
APPELLANT
TANKISO
MOKOENA
....................................................................
SECOND
APPELLANT
COLLIN
MOOKETSI
..........................................................................
THIRD
APPELLANT
and
THE
STATE
....................................................................................................
RESPONDENT
JUDGMENT
MUDAU AJ:
[1]The three
appellants appeared before a regional court, Benoni, on two counts of
robbery with aggravating circumstances also read
with
S 51
(2) of the
Criminal Law Amendment Act 105 of 1997
. They were all convicted in
respect of only one count of robbery. The first and the third
appellants were effectively sentenced
to 15 years imprisonment
whereas the second appellant received a sentence of 12 years
imprisonment. They were each declared unfit
to possess a firearm. The
appeal is against the sentence only with leave of the court below.
The only issue which falls to be decided
by this court is whether the
trial court imposed appropriate sentences on the three appellants
given the circumstances that prevailed.
[2] A brief summary
of the facts regarding this matter is as follows. During the evening
of 26 November 2010 the complainant and
his two friends were walking
down a street in Daveyton when they met with the three appellants. He
knew the first appellant very
well as they had attended school
together. He also knew the second and the third appellants by sight.
As they walked past the appellants
he heard the sound of a firearm
being cocked. His two friends must have heard the sound as well for
they ran way leaving him behind.
As he turned to look behind he was
struck at the back of his head which caused an open injury. He
realised that the object used
to strike him was a firearm. The third
appellant held it in his hand.
[3] The first and
second appellants stood in front of him. They proceeded to search the
jacket he had on whilst at the same time,
the third appellant was
busy searching his pockets (apparently trousers’). The third
appellant took from the complainant's
pocket a wallet that contained
R2000-00 cash as well as a set of keys. After the appellants had left
him, he proceeded to his home
nearby and cleaned himself of the
blood. Thereafter, he put on a jacket to cover his bloodied shirt and
went to a nearby tuck-shop
to buy some cigarettes. On his way to the
tuck-shop and hardly 12 minutes later, he met them again and pleaded
with them to give
him his money back. The third appellant had the
firearm tucked on his waist. They pleaded innocence and did not give
him his money.
As they were retreating to a passage he was scared to
follow them but instead left to go and report the matter to the
police. It
is common cause that all the three appellants were
arrested on 3 December 2010.
[4]
It is trite that the imposition of a sentence is a matter for the
discretion of the trial court. In
Fielies v The
State
(851/2013
)
[2014]
ZASCA 191
(28
November 2014)
Bosielo
JA (
Majiedt JA
concurring) reiterated this salutary approach with reference to
S
v Malgas
2001 (1)
SACR 469
(SCA) at 478D-E
as
follows:
“
...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....”
The learned judge
concludes as follows at p478l-479A:
“
...The
tests for interference with sentences on appeal were evolved in order
to avoid subverting basic principles that are fundamental
in our law
of criminal procedure, namely, that the imposition of sentence is the
prerogative of the trial court for good reason
and that it is not for
appellate courts to interfere with that exercise of discretion unless
it is convincingly shown that it has
not been properly exercised...”
(See
also
S v Pieters
1987 (3) SA 717
(A)
: S
v Kibido
1998 3 All SA 72
(A):
S
v Botha
1998 (2) SACR 206
(SCA):
S
v Kgosimore
1999 (2) SACR 238
(SCA)
and S v Barnard
2004 (1) SACR 191
(SCA).
The powers of a
court on appeal to interfere in a sentence imposed by a trial court
are therefore circumscribed. Such powers cannot
willy-nilly be
usurped as all courts in the land are vested with judicial authority
as prescribed in terms of
s165
of our Constitution.
[5] The personal
circumstances of each appellant were from the bar placed on record as
follows: the first appellant was at the time
of sentencing 28 years
of age, unmarried and is without dependents. He was employed as an
assistant fitter for an engineering company
where he earned R800-00 a
week. He admitted to a previous conviction of robbery in October 2003
where he was sentenced to 15 years
imprisonment.
[6] The second
appellant was at the time 24 years of age, unmarried but a father to
(presumably young) child. He too worked as a
fitter. His salary was
not disclosed .To his credit he had no record of previous
convictions.
[7] This third
appellant was 29 years of age at the time, unmarried, but was a
father to two minor children. He worked as a carpenter
and earned
R800-00 to R1200-00 a week. He too admitted to a record of previous
convictions. In May 2003 he was convicted of robbery
as well as
attempted murder in respect of which he was sentenced to undergo 15
years and five years’ imprisonment respectively.
[8]
The offence that the accused has been convicted of attracts the
application of the
Criminal
Law Amendment Act 105 of 1997
as
amended. The robbery attracted a minimum sentence of 15 years
imprisonment as aggravating circumstances were present in the
commission of the robbery in that a firearm was in the process used.
However, the trial court took into consideration that the appellant’s
had been in custody for approximately 18 months in dealing with the
question of sentence. The trial court found substantial and
compelling circumstances only in respect of the second appellant but
none for the other two.
[9] In my view, the
court below gave very careful consideration to the personal
circumstances of each appellant, and was conscious
of the need to
balance these with the seriousness of the offence, and the needs of
the society. The criticism that the first and
the third appellant’s
previous convictions are more than 10 years old is under the
circumstances, without any merit. Besides,
the court below did not
use their records of previous convictions to impose sentences in
excess of 15 years. Similarly the 12 years
imprisonment imposed on
the second appellant was after a proper consideration of all the
factors. Given the seriousness of the
offence the sentences do not
induce any kind of shock. The sentence imposed in respect of each
appellant is in all the circumstances
suitable.
[10] In the result,
the following order is proposed:
10.1
The appeal against sentence by all three appellants is dismissed.
MUDAU
TP
ACTING JUDGE OF
THE HIGH COURT
I agree and it is so
ordered.
DE VOS
JUDGe OF THE HIGH
COURT
GAUTENG DIVISION,
PRETORIA
Date of Hearing: 3
February 2015
Date of judgment: 3
February 2015
APPEARANCES:
For the appellant:
Mr R S Matlapeng
: From Pretoria
Justice Centre
For the respondent:
Adv K Germishuis
: NPA