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[2015] ZAGPPHC 82
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Mdhuli v S (A308/2012) [2015] ZAGPPHC 82 (19 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case No: A 308/2012
Date: 19 February
2015
In the matter of:
Lucky
Mdhuli
.............................................................................................................
Appellant
Versus
State
JUDGMENT
Maumela J.
1. This case came
opposed before this court as an appeal. There was no clarity at the
beginning, but it later became common cause
between the parties that
the appeal can only be against sentence. The conviction stands to be
confirmed.
2. Before the
Regional Court for the district of Gauteng, sitting in Oberholzer,
the appellant, Lucky Mdluli, who was 29 years of
age at the time he
was arraigned, was charged with two counts as follows:
2.1. On count I:
Housebreaking with
intent to Rob and Robbery with Aggravating Circumstances read section
262 (1), and 264 of the Criminal Procedure
Act 1977: (Act No 51 of
1977): “
Criminal Procedure Act&rdquo
;.
2.2. On count II:
Robbery with
aggravating circumstances, as intended in
section 1
of the “
Criminal
Procedure Act&rdquo
;).
3. On Count I, it
was alleged that the appellant is guilty of Housebreaking with Intent
to Steal and Theft, read with the provisions
of
section 262
(1), and
section 264
of the “
Criminal Procedure Act&rdquo
;. The
allegations were that upon or about the 22
nd
of May 2011,
and at or near 418 Khutsong in the district of Oberholzer in the
Regional Division of Gauteng, the accused did unlawfully
and
intentionally, and with the intent to rob, break open and enter the
shack of Veness Junior, and did then and there wrongfully
and
intentionally assault, and with force take the items listed; the
property, or in the lawful possession of Venus Junior.
4. The following is
a list of the items in issue:
4.1. 1 x 54
Centimetre Panasonic TV worth R 600-00.
4.2. 1 x Black
Samsung
S233
cell phone worth R 800-00.
4.3. 1 x Telefunken
DVD Player worth R 600-00.
4.4. 1 x Pair
Timberlain boots worth (R 450-00.
4.5. 1 x Black bag
worth R 150-00.
4.6. Cosmetics worth
R 130-00.
4.7. 3 x packets of
20 Courtly, Craven A, and Peter Stuyvesant, worth R 75-00, and
4.8. 40 sachets of
Raja spice worth R 1 200-00.
5. On count II, it
was alleged that the appellant is guilty of Robbery with Aggravating
Circumstances, read with the provisions
of
section 51
(2),
52A
, and
52B
, of the
Criminal Law Amendment Act 1997
: Act No 105 of 1997:
“
Criminal Law Amendment Act&rdquo
;. The allegations were that
upon or about the 22
nd
Day of May 2011, and at Khutsong in
the Regional Division of Gauteng, District of Oberholzer, the accused
did wrongfully and unlawfully
assault Veness Junior and take with
force 1x LG Cell phone v/a, her property, or property in her lawful
possession, the aggravating
circumstances being that a firearm was
used.
6.
Before the court a
quo,
the
Appellant pleaded not guilty. Given the opportunity to explain his
plea, he exercised his right to silence. Venas Junior was
the first
witness to be called by the state. Under oath, she told court on the
22
nd
of May 2011, at about 21 h30 in the evening, she was at home alone.
As she was cooking supper, four people arrived and kicked the
door
open. She said that Lucky Mdluli, the appellant, was one of the
people. She said that the appellant pointed a firearm at her
and
demanded money. The other people in his company searched around in
the shack, while one stood outside to see if the on goings
were being
detected by the public.
7. The intruders
found her phone, which was on the charger. They took it with them,
together with her TV, a DVD player, and a big
bag of money in which
there was about R1200-00, in Mozambican currency. They also took
cigarettes and a small speaker. She said
that she compiled and signed
a list of the items taken from her house, which list she gave to the
police, and was admitted as “Exhibit
A”.
8. While the
invaders were still at her place, somebody arrived to buy cigarettes.
The intruders kept quite when this person knocked,
but they then
exited. The said person asked her what was going on, but she did not
respond because she had mistaken him for one
of the invaders. She had
been ordered to look down and not to look the intruders in the faces.
Upon realizing her mistake, she
explained to that person what had
just happened.
9. She borrowed a
phone from that person and phoned the police who never arrived. On
the following morning she went to report the
incident at the police
station. She told court that she knows the Appellant, Lucky Mdluli,
well. She said that she was not seeing
the appellant for the first
time because he had robbed her before. When the first robbery
happened, she did not know the Appellant.
One other day, somebody
came to inform her that there is a television set on sale. Someone
else tipped her about the fact that
the people who are selling the TV
are crooks or “tsotsis”.
10. The witness
stated further that upon advice, she went to inspect goods that were
on sale at some household. The TV she found
was not hers. However,
she found on sale, boots that had been robbed from her home. Upon
further advice, she reported this to the
‘street committee'.
The person who was selling tried without success to dissuade her from
reporting. This person told her
that he had bought the boots from
Lucky Mdluli, (the appellant). However, this person soon moved away
from the area and when the
police came looking for him, she could not
trace him anymore.
11. Still in the
company of the police, she visited the Appellant’s home where
she identified her TV and the DVD, together
with most of the other
items taken from her place. The items she had identified as hers were
loaded into the vehicle and taken
to the police station. She said
that whilst she knew the Appellant well, she did not know the other
people in his Appellant well,
she did not know the other people in
his company who came to her house. She said that the firearm that the
Appellant had in his
possession on the day he and the others came to
her house was a hand gun. She stated that on the day of the incident,
the Appellant
pointed at her with the firearm. On the night the
Appellant and the others came to her home, the lights were on. One of
the intruders
had a knife in his possession.
12. The second state
witness to be called was constable Mapitsi, he told court under oath
that he is the member of the South African
Police, stationed at
Khutsong under the CID section. He has 7 years of experience in the
police force. He is the Investigating
Officer in this case. He said
on the 26
th
of May 2011, he was busy with the
investigation of this case. He was then approached by the
complainant, who told him that she
knows the whereabouts of Lucky
Mdluli, (the Appellant). He, together with the complainant, went to
Shawela section as directed
by the complainant.
13. It was in the
night and they found the appellant, (Lucky Mdluli), and some other
people sited around a fire near the door. As
he entered the people
tried to run away. He already knew the appellant because of other
previous encounters he had with the Appellant.
As the people fled, he
managed to arrest the appellant and informed him that he is being
arrested for a case of House Robbery.
He read to the appellant his
rights and took him to the police station and detained him there for
the night.
14. He also told
court the complainant took him to Lucky's home. He told the people
that he is looking for items stolen from another
house. Lucky’s
mother and sister directed him to a shack where Lucky was supposed to
be living. A search at that shack unearthed
her TV and her DVD. He
took the said items with him to the police station where he
registered them into the Exhibit Register. After
the close of the
state case, the Appellant testified in his own defence.
15.
He was convicted on Count 1. He was sentenced to undergo 12 (twelve)
years of imprisonment. This court is to decide on the appropriateness
or otherwise of the sentence meted out to the appellant by the court
a
quo.
In
S v Zinn
1
,
the court stated that in imposing sentence, the court has to take
into consideration, the crime committed, the interests of the
accused, and the interest of the community”. The offence of
which the appellant stands convicted is serious. A firearm was
used
in its commission.
16.
In S v Samuels
2
,
the court stated as follows:
“
What
seemed to weigh with both courts was the prevalence of violent crimes
executed with unlicensed firearms. That consideration
was deserving
of and warranted appropriate recognition in the determination of an
appropriate sentence’’.
However,
in the Samuels case, the firearm in issue had no cartridge of
ammunition. The trial court was chided for not taking that
aspect
into consideration.
In
casu,
it
was never established whether the firearm had a cartridge or not, and
if so, it was never established whether the cartridge was
loaded with
ammunition or not.
17.
A concern was raised to the effect that at the beginning of
proceedings, the court a
quo
did
not explain to the appellant, the implications of
section 52
(2) of
the “
Criminal Law Amendment Act” being
read with the
Robbery charge, much as the implications of. In sentencing the
appellant for purpose of count III, the court a
quo
applied
the provisions of section 51 of the Criminal Law Amended Act 1997.
(Act number 105 of 1977) in that way the court viewed
itself to be
enjoined to impose a minimum sentence prescribed unless exceptional
and compelling circumstances were to found to
be attended to the
person of the appellant who justify the non-imposition of the minimum
sentence prescribed is 15 years of imprisonment.
18. The appellant
was 25 years of age at the time he was sentenced. He was single, but
he had a three year old child who stays with
the mother, who is
unemployed. He had previous convictions. On the 14
th
of
June 2004, at Khutsong, he was convicted of Robbery and he was
sentenced to undergo 2 (two) years of imprisonment, which sentence
was wholly suspended for 5 (five) years on condition that the accused
is not convicted of an offence of robbery, attempted robbery,
theft,
or any offence of which assault is an element, which offence shall
have been committed during the period of suspension and
for which the
accused is sentenced to imprisonment without an option of a fine. On
the 12
th
of January 2010, he was convicted of contravening
section 4 (a), of the Unlawful Possession of Unwrought Precious
Metals. He was
sentenced to pay a fine of R 6 000-00. He was placed
under correctional supervision until the 11
th
of July
2011.
19.
Our case law has determined that sentences imposed on accused persons
have to be tinged with a measure of mercy. In S v Rabie
3
,
Holmes JA stated: "
Then
there is the approach of mercy or compassion or plain humanity. It
has nothing in common with maudlin sympathy for the accused.
While
recognising that fair punishment may sometimes have to be robust,
mercy is a balanced and humane quality of thought which
tempers one’s
approach when considering the basic factors of letting the punishment
fit the criminal, as well as the crime
and being fair to society".
20.
In avoiding the imposition of the minimum sentence prescribed, in the
face of a crime of the seriousness reflected
in
casu,
the
sentencing court has infused an element of mercy in the sentence
passed. This court also has to be weary of readily tempering
with a
sentence passed by the court a
quo
because
the appellant appeared before it, giving it the opportunity to view
the appellant closely. In S v Barnard
4
,
the court cautioned that:
“
A
Court sitting on appeal on sentence should always guard against
eroding the trial court's discretion in this regard, and should
interfere only where the discretion
was
not
exercised judicially or properly. A misdirection that would justify
interference by an appeal Court should not be trivial but
should be
of such a nature, degree or seriousness that it shows that the court
did not exercise its discretion at all or exercised
it improperly or
unreasonably
”
.
21. I find that the
appellant has not demonstrated to this court that the sentence meted
out to him was shockingly in appropriate.
He has not demonstrated
that in imposing sentence against him, the trial court misdirected
itself judicially; let alone that it
misdirected itself seriously. As
such, the appeal against sentence stands to be dismissed and the
following order is made:
ORDER.
1. Conviction is
confirmed.
2. The appeal
against sentence is dismissed.
T. A. Maumela.
Judge of the High
Court of South Africa.
I agree.
JJ. STRIJDOM AJ
Acting Judge of the
High Co^n of South Africa.
1
1969
(2) SA 537
(A).
2
2011
(1) SACR 9
(SCA).
3
1975
(4) SA 855
(A), at page 861.
4
2004
(1) SACR 191
(SCA).