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[2015] ZAGPPHC 275
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Vukile v S (A366/11) [2015] ZAGPPHC 275 (19 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case No: A366/11
Date: 19 February
2015
In the matter
between:
The State
Andile
Vukile
.......................................................................................................
Appellant
Versus
State
JUDGMENT
Maumela J.
1.
In person, before the court
a quo,
appellant,
who was legally represented, successfully applied for leave to
appeal. The court a
quo
ruled
to the following effect: “Leave to appeal is granted”. It
provided no specifics. As a result, initially it was
not readily
clear as to whether this appeal is against conviction, sentence, or
both. However, subsequently it became common cause
between the
parties that this appeal shall be; much as it is, against sentence
only.
2. Before the
Regional Court for the district of Gauteng, sitting in Oberholzer,
the Appellant was arraigned together with 4 (four)
others. They were
charged with the following 3 (three) charges:
Count I: Murder,
Count II: Attempted
Robbery,
Count III: Robbery
with aggravating circumstances, read with Section 1, of the Criminal
Procedure Act 1977: (Act No: 51 Of 1977)
“
Criminal Procedure
Act&rdquo
;.
3. On Count I,
Murder, the allegations were that upon or about the 6
th
of
April 2007, and at or near Khutsong, Carletonville, in the District
of Obelholzer, in the Regional Division of Gauteng, the
accused did
unlawfully and intentionally kill Thembinkosi Hamilton Daweti, by
assaulting him with an unknown object.
4. On Count II, the
allegations were that upon or about the 6
th
of April 2007,
and at or near Khutsong Carletonville, in the District of Obelholzer,
in the Regional Division of Gauteng, the accused
did unlawfully and
intentionally assault one Nomvula Zingelwa, and did with force and
violence attempt to take from her possession,
the following items, to
wit one cellphone, her property, or property in her lawful
possession.
5. On Count III, the
allegations were that upon or about the 6
th
of April 2007,
and at or near Khutsong Carletonville, in the District of Obelholzer,
in the Regional Division of Gauteng, the accused
did unlawfully and
intentionally assault Jonas Isaac Mosia and did with force and
violence take from the possession of the said
Jonas Isaac Mosia, the
following items, to wit one Samsung B900 cellphone, his property, or
property in his lawful possession;
the aggravating circumstances
being that the complainant was stabbed witha knife, or a similar
sharp object.
6.
Before the court
a quo,
all
the five accused persons pleaded not guilty to all the three counts.
All five accused persons opted not to tender plea explanations.
The
State led evidence.
7. On count 1,
(Murder), all the accused were found Not Guilty and Discharged at the
close of the State’s Case in terms of
section 174
of the
“
Criminal Procedure Act&rdquo
;. Eventually, accused number 1, 2
and 5 were convicted on counts 2, (Robbery), and 3, (Robbery with
aggravating circumstances).
They were sentenced each to undergo 10
(ten) years of imprisonment on count 1, and 15 (fifteen) of years
imprisonment on count
2.
8.
Briefly, the court a
quo
found
that the state successfully proved the following facts against
accused number 1, 2 and 5: On the 6
th
of April 2007, in the night, one Isaac Jonas Mosia, the complainant
in count III, attended a night vigil at a place called Joe
Slovo. He
was in the company of others, including his girlfriend, Nomvula
Zingelwa, who is the complainant in count II.
9. On their way
home, they came upon a group of boys in which there seemed to be a
commotion. It turned out that the boys were attacking
someone. He and
his companions mistakenly surmised that it is nothing serious and
that the boys were behaving as such because they
were drunk. Thinking
it safe to do so, they strove to walk past. The boys turned on them.
A scrimmage ensued, pursuant to which
they ended up robbed of a
Sumsung D900, and a Motorola V360 cell phones, belonging to him and
his girlfriend respectively.
10.
Under oath, Mosia testified to the effect that during the course of
the skirmish, one Maboyi, stabbed him twice with a knife
on his head.
Maboyi’s name is Nhlanhla Bambhula and he was accused number 2
(two) before the court
a quo.
He
said that he realized that he is bleeding due the stabbing. That
prompted him to desist from resisting the robbery. He said that
the
value of his cellphone is R 3 650.00. One Tshepo, a friend of his,
helped trace the culprits to a place known as Vusi’s
Tavern.
They were fidgeting with Mosia’s cell phone. Upon noticing
Mosia and Tshepo, the culprits fled. As they did so, Mosia
and Tshepo
shouted to no avail for the appellant to give the cell phone back.
11. On the following
day as he walked alone, he found all three culprits, including the
appellant, standing at a corner next to
Margaret’s Tavern in
the Chris Hani area! He greeted them in order to determine if they
recognize him. Further up the same
street, he met Maboyi, (accused
number 2), whom he also greeted as he passed. He went to inspect the
spot along the same street
where he and Tshepo had attempted to chase
the culprits hoping to find some of the items he and his girlfriend
lost during the
robbery. He then came across a police van, surrounded
by a group of people. He found out that there is a dead person lying
on the
ground. He suspected that person to be the same person that
was being attacked by the boys on the previous night. He learnt that
the deceased was killed at around 2h00am, while he and his companion
were attacked at around 1 h30am. He informed the police about
what he
and his companions witnessed the previous night. They took him to the
police station to make a statement and to lay a charge.
12. Upon return from
the police station, he and Tshepo met Andile, (the appellant), at
Margret’s Tavern. Appellant denied
complicity in the robbery.
They informed him that the other unknown man that he, (Andile) and
the other boys attacked on the previous
night died. This gave Andile
a fright and he, (Andile), became co-operative. He pleaded with them
not to reveal his identity as
a culprit to the police. He took them
to the place where he had sold his, (Mosia’s), cellphone. He
also told them that the
other cellphone, (the V360), is with Maboyi,
(accused number 2), who had since gotten arrested for a different
cause.
13. While in the
company of his cousin Maruping, they found the person to whom Andile
had sold the cell phone. He, (the witness),
proved ownership by
providing the relevant PIN number. When switched on, the cell phone
depicted his and his girlfriend’s
photos on its screen. The
said person revealed that Andile had told him that the phone had been
robbed off a white man.
14. He traced the
Appellant again and told him he had recovered his phone. He demanded
his girlfriend’s cell phone. Appellant
offered to rather
replace it, stating that it would be difficult to recover. On the
following day, he could not find the Appellant.
Driving along the
street, he came upon accused number 3 (three), who sought to convince
him that he, and Andile merely stood by
as the robbery took place.
15. Inspector
Mangwenya, the second witness to be called by the state corroborated
most of what Mosia told court. He is the Investigating
Officer in
this case. He obtained a statement from the robbery victim, who
implicated the appellant, Andile Vukile. He said that
the victim of
the robbery retrieved his cell phone from the appellant, who together
with his friends promised to return a second
cell phone on condition
that the witness does not expose him to the police. He also told
court about the sequence in which he effected
arrests of the culprits
in this case.
16. He got to know
the appellant even before this case arose. The complainant in the
robbery case showed him the appellant’s
place of residence from
whence he arrested him. Appellant in turn led him to the home of one
Nhlanhla, (accused number 2), who
had been arrested previously, and
whose previous case was still outstanding.
17. Bethuel Ngobeni
also testified on behalf of the state. He told court that on Good
Friday in April 2007, upon being offered,
he bought a D 900 cell
phone from the appellant who was in the company of someone he does
not know. The two did not seem to know
the relevant PIN number for
the cell phone. The two left him with the phone promising to return.
A while later, the appellant returned
in the company of someone who
demanded the cell phone as his. This person knew the PIN number for
the cellphone. His and his girlfriend’s
pictures showed up on
the screen. It turned out that the cell phone was stolen. He
explained to this person that appellant had
given him an impression
that the cell phone was stolen from a white man.
18. Anton Mbiza,
also testified for the state. He told court that for R 350-00, he
once bought a V 360 Motorola cell phone from
a person called Richard,
who is accused number 5. Richard did not tell him where he had
obtained the said cell phone from. The
cell phone was eventually
confiscated by the police. This scared him because he had not been
confronted by the police for any reason
before. The serial numbers on
the cell phone he's talking about, which were not disputed were
352511012340626.
19.
The issue before court concerns the correctness or otherwise of the
sentenced imposed against the appellant by the court a
quo.
It was argued on behalf of the
appellant that the court a
quo
erred
in applying the provisions of the “
Criminal Procedure Act&rdquo
;,
and the “Criminal Law Amendment Act”, in imposing
sentence in respect of the Robbery charge. As a result, the court
a
quo
unduly considered the
question whether substantial and compelling circumstances are
attendant to the person of the appellant, or
not. It was argued that
the court a
quo
has to
consider the sentence afresh.
20. Relevant to this
case, section 51 (2) of the Criminal Law Amendment Act 1997: (Act No
105 of 1997) “Criminal Law Amendment
Act” reads as
follows:
“
(2).
Notwithstanding any other law but subject to subsections (3) and (6),
a regional court or a High Court shall—
(a), if it has
convicted a person of an offence referred to in Part II of Schedule
2, sentence the person, in the case of—
(i). a first
offender, to imprisonment for a period not less than 15 years.
21. The Appellant
had previous convictions. On the 7
th
of October 2004,
appellant was convicted of two counts of Assault with intend to do
Grievous Bodily Harm. On one of the two charges
he was sentenced to
undergo 12 months imprisonment. The whole sentence was suspended
conditionally for 5 years. The imposition
of sentence in respect of
the second conviction was suspended for five years in terms of
section 297 (1) (a) of the Criminal Procedure
Act 1977: (Act No 51 of
1977) “
Criminal Procedure Act&rdquo
;.
22. On the 17
th
March 2005, appellant was convicted of Assault with intend to do
Grievous Bodily Harm. He was sentenced to undergo 19 months
imprisonment
of which 6 months was suspended for 5 years on condition
that the accused is not convicted of an offence of Assault with
intend
to do Grievous Bodily Harm, which offence was committed during
the period of suspension. On the 22
nd
of June 2006,
Appellant was convicted of Assault Common. He was sentenced to pay a
fine of R800 - 00 or to undergo 60 days imprisonment.
The whole
sentence was suspended for 5 years on condition that the accused is
not convicted of an offence of which assault is an
element, which
offence shall have been convicted during the period of suspension.
23.
In sentencing the appellant for purpose of Count III, the court
a
quo
applied
the provisions of section 51 (2) of the Criminal Law Amended Act
1997. (Act Number 105 of 1977) “Criminal Law Amended
Act”
1
.
The court viewed itself to be enjoined to impose the minimum sentence
prescribed, unless ‘exceptional and compelling’
circumstances were to be found to be attendant to the person of the
appellant, which justify the non-imposition of the minimum
sentence
so prescribed; which sentence is 15 years of imprisonment in respect
of Count III.
24.
It was common cause between the parties that throughout the trial,
before the court a
quo,
the
implications of the applicability of the provisions of section 51 (2)
of the “Criminal Law Amended Act” were never
explained to
the Appellant. In State v Chowe
2
,
the court held that the court is obliged to inform an accused person
that the minimum sentencing dispensation provided for in
section 51
of the “Criminal Law Amended Act” shall be applicable for
purposes of sentence against him or her in the
event of a conviction.
The court stated that the obligation to inform the accused obtains
even where the accused is legally represented.
25.
Over and above that, section 35 (3) (a) of the Constitution of the
Republic of South Africa 1996, requires that an accused be
informed
of the charge with sufficient detail to answer to it. This obligation
should obtain even where it regards the applicability
of the minimum
sentence regime. In the case of Toubie v The State
3
,
the court held that it should be clear from the reading of the record
of the case that the provisions which provide for minimum
sentences
were explained to an accused person in such a way that he or she
would be able to put up a defence if he or she feels
inclined to do
so.
26.
In the Toubie case
4
,
the court went on to state
5
:
“Failure to forewarn the accused is in conflict with the
provisions of s 35(3
)(a)
of
the Constitution
6
,
which provides that every accused person has a right to a fair trial
which, inter alia, includes the right to be informed of the
charge
with sufficient detail to answer it. This court is entitled to raise
this issue
mero
motu
because
the irregularity resulted in an injustice and was prejudicial to the
appellant who, in the eyes of the full court deserved
life
imprisonment for the murder see (section 322(1) (c) of the CPA). The
appellant was legally represented by Mr Omar, a senior
attorney, from
the outset of the trial up to this court. I can only assume that Mr
Omar should have been vigilant, but this is
no excuse to prejudice
the appellant”.
27.
In the light of the failure by the court to make the appellant aware
of a possible application of the provisions of
section 51
of the
“
Criminal Law Amendment Act&rdquo
;, the court stated as
follows: “The question is, whether the irregularity is of such
a nature as to render the entire proceedings
unfair. The answer is
no: because not the entire proceedings are vitiated by the
irregularity. Only the sentence is affected. The
nature of the
irregularity of the sentencing procedure is such that it could be
safely separated from the proceedings as a whole
in such a manner
that the conviction for robbery and murder remains intact. It
satisfies the requirements of a fair trial; see
Phithela
Mapule v The State
7
.
28.
As was the case in S v Toubie
8
,
the irregularity in this case lies in the fact that the appellant was
not informed of the applicability of
s 51
of the
Criminal Law
Amendment Act, either
at the plea stage, or during the trial. As the
appellant was not informed that he was charged under the
Criminal Law
Amendment Act, the
full court erred in sentencing him in terms of
that Act. He could only have been sentenced, in accordance with the
trial court’s
ordinary penal jurisdiction. However, I am of the
view that it will not serve any useful purpose to refer the matter
back to the
trial court. This court has all the facts before it and
is therefore able to consider the sentence afresh, although the
record
is incomplete, nothing of importance is lost, as the missing
part is the address to court by both counsels. However whatever facts
the court
a
quo
had
before it, this court also has. This means that the court will
consider an appropriate sentence outside the minimum sentence
regime.
See
Legoa;
Ndlovu
and
Makutu.
29.
In this case, the court a
quo
also
took onto consideration that the offences of which the Appellant is
convicted are rife. To that end, the court even referred
to an
article in a local newspaper, The Carletonville Herald, where
statistics were provided which prove that offences entailing
Robbery,
including Robbery with aggravating circumstances are not only rife,
but are also on increase all the time.
30.
From a reading of the constitution of this country and the case law
cited, this court views that the failure on the part of
the court a
quo
to raise the
aspect of the applicability of
section 51
(2) of the “
Criminal
Law Amendment Act” with
the appellant at the start of the trial
constitutes an irregularity. As determined in the Toubie case above,
the irregularity committed
vitiates only the sentence meted out
against the appellant, without affecting the rest of the proceedings
in the case against him.
31.
It is clear from the record of the proceedings of this case that the
court a
quo
applied
the provisions of the minimum sentence legislation
9
in arriving at the sentence it imposed
10
.
It is also clear that the court a
quo
did
not benefit the accused with an explanation on the implications of
the Robbery charge in count III being read with Section 1,
of the
Criminal Procedure Act 1977: (Act No: 51 Of 1977) “
Criminal
Procedure Act” where
it regards sentence in the event of a
conviction. The appeal against sentence therefore stands to succeed.
32.
This court also has to consider a suitable sentence to be imposed on
the appellant. It is trite that in the case of S v Zinn
11
the court laid down a principle on the approach to sentencing. The
said principle is referred to as the “triad on sentencing”.
In that regard, the court stated that in sentencing, the court has to
take into consideration, the nature of the crime committed;
the
interests of the accused; and the interests of the community.
33. The offences for
which the appellant stands convicted are serious. In their
commission, violence and threats thereof were employed
against
helpless, unarmed victims. In S v Mnguni
12
,
the court stated that there is aggravation where an accused person
inflicts a brutal, cruel, and inhuman attack on a helpless,
unarmed
harmless victim.
34.
However, there is nothing in the offences committed, which suggests
that they could have been planned. The complainants seem
to have
merely stumbled upon the appellant and his friends on that fateful
night. In S v Mofokeng
13
,
the court stated that an unplanned murder is mitigating.
35.
Our courts have also emphasised that sentences must be
individualized, and each case must be dealt with in its own peculiar
facts
14
(see State v Samuel
15
).
The appellant was 19 (nineteen) years of age at the time he was
arrested. He had previous convictions as follows:
(i). On the 7
th
of October 2004, he was convicted of two counts of Assault with
Intent to do Greivous Bodily Harm.
In count 1, he was
sentenced to undergo 12 (twelve) months imprisonment, which sentence
was wholly, and conditionally suspended
for 5 (five) years.
In count 2, the
passing of sentence was postponed for a period of 5 (five) years in
terms of section 297 (1), (a), (ii), of the
“Criminal
Procedure Act”.
(ii). On the 17
th
of March 2005, he was convicted of an offence of Assault with Intent
to do Greivous Bodily Harm. He was sentenced to undergo 19
(nineteen)
months of imprisonment, of which 6 (six) months imprisonment was
suspended conditionally for 5 (five) years.
(iii). On the 22
nd
of June 2006 he was convicted of an offence of assault common. He was
sentenced to pay a fine of R800-00(Eight Hundrend Rands),
or to
undergo 60 (Sixty days) imprisonment, the whole sentence was
conditionally suspended for 5 years ( Five years)
36.
Throughout the trial before the court a quo, the appellant did not
show contrition for the crime for which he stands convicted.
In the
case of S v D
16
,
the court stated that lack of remorse on the part of an accused
person was only regarded as “not mitigating”. The
same
view was held in S v Landau
17
.
37. Our courts have
held that in passing sentence courts have to infuse an element of
mercy. In S v Kumalo
18
,
Holmes JA stated: “Punishment must fit the criminal as well as
the crime, be fair to society and be blended with a measure
of mercy
according to the circumstances”. In this case the offences
committed are very serious. The victims did not conduct
themselves in
any manner that rendered them to be deserving of the attack launched
against them. The crimes also seem to have been
motivated by greed on
the part of the Appellant and his colleagues.
38. The court can
therefore not afford to meet out a lenient sentence against the
Appellant in the face of the seriousness and callousness
of the
offences of which his stands convicted.
Section 280
of the “
Criminal
Procedure Act” provides
for the ordering of sentences in
respect of convictions on more than one count to run concurrently in
instances were doing so is
necessary.
39. In the
circumstances the court has determined the sentence stated hereunder,
and in that regard the following order is made
:
ORDER.
(a) The appeal
against sentence succeeds.
(b)
The sentence passed by the court a
quo
is
set aside, and is substituted by the following sentence:
SENTENCE.
(a). On count II,
Robbery, the appellant is sentenced to undergo 7 years imprisonment.
(b). On count III,
Robbery with Aggravating Circumstances, read with Section 1, of the
Criminal Procedure Act 1977: (Act No: 51
Of 1977) “
Criminal
Procedure Act&rdquo
;, the appellant is sentenced to undergo 13 years
imprisonment..
(c). Both sentences
are ordered to run concurrently.
T. A. Maumela.
Judge of the High
Court of South Africa.
I agree.
JJ. STRÏJDOM
AJ
Acting Judge of
the High Court of South Africa.
1
See page 132 of the transcribed record of this case: Paginated page
141 of the papers in this appeal.
2
2010 (l)SACR 141 (GNP).
3
(635/11)
[2012] ZASCA 133
(27 September 2012).
4
See
footnote 3 above.
5
On paragraph 22.
6
Act
No 108 of 1996 "The constitution".
7
[2012] ZASCA 80
paragraph 15.
8
Supra.
9
The Criminal Law Amendment Act 1997: (Act No 105 of 1997).
10
See
page 132 of the transcribed record of this case: Paginated page 141
of the papers in this appeal.
11
1969
(2) SA 537
(A).
12
1994 (1) SACR 579
(A), at page 483 paragraph E.
13
1992
(2) SACR 710
(A), at page 715 g - h.
14
See
S v Samuel
2011 (1) SACR 9
(SCA), paragraph 9.
15
2011 (1) SACR 9
(SCA), at paragraph 9.
16
1995
(1) SACR 259
(A).
17
2000
(2) SAVR 673 (W).
18
1973 (#) SA 697 (A), at 698 (A).