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[2014] ZAGPPHC 42
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Mthombeni v S (A770/2013) [2014] ZAGPPHC 42 (24 February 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
number: A770/2013
Date:
24 February 2014
In
the matter between:
NICOLUS
WILSON MADIROMU
MTHOMBENI
...............................................
Appellant
and
THE
STATE
...................................................................................................
Respondent
JUDGMENT
PRETORIUS
J,
[1]
The
appellant
was
convicted
in
the
Regional
Court,
Giyani on three counts on 11 November 2009 and was sentenced as
follows:
Count 1: Robbery with aggravating
circumstances – 15 years imprisonment;
Count 2: Contravening
Section 3 of the Firearms Control Act, Act 60 of 2000 –
Possession of firearm – 5 years imprisonment;
Count 3: Contravening
Section 90 of the Firearms Control Act, Act 60 of 2000 –
Possession of ammunition – 24 months
imprisonment wholly
suspended for 5 years.
An effective
sentence of 20 years imprisonment.
[2]
The
appellant was legally represented throughout the proceedings. Leave
to appeal was granted by the court
a
quo
.
Conviction:
[3]
Ms
Maluleke’s evidence was that on 12 October 2008 she was at work
as a cashier at Caltex, Giyani. At 12h00 there was a collision
in the
driveway of the petrol station, which resulted in all the employees
running to investigate.
[4]
Two
men entered the shop, they took a packet of biscuits from the shelf.
When she opened the till as they paid, one of them produced
a firearm
and ordered her and her co-cashier, Ms Mabunda, to lie on the ground,
whilst pointing the firearm at them. The other
man moved behind the
tills and took cash and cellphone airtime vouchers from the tills.
The two perpetrators then left together
and ran away.
[5]
The
appellant does not deny the robbery but claims it is a case of
mistaken identity. Ms Maluleke and Ms Mabunda’s evidence
was
that there were bright lights in the shop and the two perpetrators
had not covered their faces, although both were wearing
caps. The one
man was wearing a blue jean and a white sweater, whilst the other was
dressed in black.
[6]
Both
witnesses testified that the person pointing them with the firearm
was the appellant, who wore black clothes. They recognized
him as Ms
Maluleke testified that a piece of his ear was missing and Ms Mabunda
testified that he had a scar on his ear. Both witnesses
attended an
identity parade where they identified the appellant as the person who
had pointed the firearm at them. They both poited
out the appellant
at the identity parade without any hesitation
[7]
Ms
Maluleke identified the firearm that was in court as the firearm
which had been used in the robbery. She remembered the scratches
on
the firearm.
[8]
Inspector
Mashali arrested the appellant. He accompanied the appellant to his
homestead. He received a report from a lady and proceeded
to a
certain house at Bambeni village where Mr Godfrey Mabunda dug out a
firearm with 8 living rounds from the ground. It was wrapped
in a
cloth and was in a plastic container. Ms Rikhotso was a cousin of the
appellant. She had visited him at the SAPS cells and
he told her
about a plastic container, but she only found the cloth containing
the firearm. She identified the exhibit in court
as the firearm she
had found in the cloth. She gave the firearm to Mr Godfrey Mabunda.
[9]
In
S
v Mthetwa
1972 (3) SA 766
(A)
Holmes
JA found at 768:
“
Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution. It is
not enough for
the identifying witness to be honest: the reliability of his
observation must also be tested. This depends on various
factors,
such as lighting, visibility, and eyesight; the proximity of the
witness; his opportunity for observation, both as
to time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility;
the accused's
face, voice, build, gait, and dress; the result of identification
parades, if any; and, of course, the evidence by
or on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as are applicable in a particular case, are
not individually
decisive, but must be weighed one against the other, in the light of
the totality of the evidence, and the probabilities;
”
[10]
In
the present instance the evidence was common cause that there were
bright lights in the store and both witnesses were close to
the
appellant, who was pointing a firearm at them. Ms Maluleke and Ms
Mabunda corroborated one another as to the clothing the prepetrators
were wearing. They both saw that there was something wrong with the
appellant’s ear and both identified him at the identity
parade
without any hesitation. The further fact the court takes into account
is that the firearm in question was found at the homestead
where the
appellant was living with Ms Rikhotso. This firearm was identified by
Ms Maluleke as the firearm which was pointed at
her.
[11]
There
can be no criticism levelled at the evidence of Ms Maluleke and Ms
Mabundla. The court has weighed all the facts and considered
the
probabilities, improbabilities and evidence. In
S
v van den Meyden
1999 (2) SA 79
(W)
at
p 82 E, Nugent J held:
“
Some
of the evidence might be found to be false; some of it might be found
to be unreliable; and some of it might be found to be
only possibly
false or unreliable; but none of it may simply be ignored.”
[12]
The
court cannot come to any other conclusion but that the appellant is
guilty as charged and that the court
a
quo
was
correct in finding the appellant guilty as the State has proved the
appellant’s guilt beyond a reasonable doubt.
Sentence:
[13]
In
S
v de Jager
1965 (2) SA 612
(A)
at
p 629 A Holmes JA found:
“
It
is the trial Court which has the discretion, and a Court of appeal
cannot interfere unless the discretion was not judicially
exercised,
that is to say unless the sentence is vitiated by irregularity
or misdirection or is so severe that no reasonable
court could have
imposed it.”
(Court’s
emphasis)
[14]
In
terms of section 51 (2) (a) of Act 105 of 1997 the minimum sentence
of 15 years imprisonment is applicable in this instance,
unless the
court finds substantial and compelling circumstances.
[15]
In
S
v Malgas
2001 (1) SACR 469
(SCA)
at 481 it was held by Marais JA:
“
The
greater the sense of unease a court feels about the imposition of a
prescribed sentence, the greater its anxiety will be that
it may be
perpetrating an injustice. Once a court reaches the point where
unease has hardened into a conviction that an injustice
will be done,
that can only be because it is satisfied that the circumstances of
the particular case render the prescribed sentence
unjust or, as some
might prefer to put it, disproportionate to the crime, the criminal
and the legitimate needs of society. If
that is the result of a
consideration of the circumstances the court is entitled to
characterise them as substantial and compelling
and such as to
justify the imposition of a lesser sentence.”
[16]
In
S
v Matyiti 2011(1) SACR 40 (SCA)
at paragraph 23 e - g the court found in relation to minimum
sentences:
“
Courts
are obliged to impose those sentences unless there are truly
convincing reasons for departing from them.
Courts
are not free to subvert the will of the legislature by resort to
vague, ill-defined concepts such as 'relative youthfulness'
or other
equally vague and ill-founded hypotheses that appear to fit the
particular sentencing officer's personal notion of fairness.
Predictable outcomes, not outcomes based on the whim of an individual
judicial officer, is foundational to the rule of law which
lies at
the heart of our constitutional order.”
(Court’s
emphasis)”
[17]
The
appellant is a first offender, he is 29 years old, he is married with
a child. He was self-employed earning R1000.00 per month.
[18]
Due
to the fact that it not clear which facts the court
a
quo
took
into consideration, when considering sentence, this court considered
all the mitigating and aggravating facts which had been
presented in
the court
a
quo.
[19]
In
S
v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
CC
at
par 38 Ackermann J held:
“
[38]
To attempt to justify any period of penal incarceration, let alone
imprisonment for life as in the present case, without inquiring
into
the proportionality between the offence and the period of
imprisonment, is to ignore, if not to deny, that which lies at the
very heart of human dignity. Human beings are not commodities to
which a price can be attached; they are creatures with inherent
and
infinite worth; they ought to be treated as ends in themselves,
never merely as means to an end. Where the length of a
sentence,
which has been imposed because of its general deterrent effect on
others, bears no relation to the gravity of the offence
(in the
sense defined in para 37 above) the offender is being used
essentially as a means to another end.
”
[20]
In
S
v MM; S v JS; S v JV
2011 (1) SACR 510
the court held in a full bench appeal in paragraph 13:
“
[13]
While a long period of imprisonment is appropriate, the court must
guard against a sentence that can ultimately destroy the
appellant,
either physically or mentally. There is no reason to believe
that he cannot be rehabilitated and return to continue
to be a worthy
and valuable member of his family and his society. The sentence must
accordingly reflect both society's deep displeasure
against conduct
of this kind, and society's concern that the appellant, as a first
offender, should not be crushed under the weight
of an unduly lengthy
period of incarceration.”
[21]
In
all the circumstances and having regard to the seriousness of the
offence, the interests of society and the interests of the
appellant
the court finds that 20 years imprisonment is too harsh a sentence
and is disproportionate to the crime committed. The
court finds
substantial and compelling circumstances as the appellant has no
previous record, is relatively young with his whole
life in front of
him. Nobody was injured during the robbery.
[22]
Robbery
is prevalent in South Africa and a scourge in our society which
should be combatted in the interests of society, but the
appellant
should not be penalized.
[23]
The
court is aware that society demands that courts treat these
perpetrators harshly, but the courts do not cater exclusively for
public opinion, but has to consider the crime, the interests of
society, the perpetrator and the victim.
[24]
In
all the circumstances a sentence of 12 years is deemed appropriate on
count 1. The sentence on count 2 is also too high in that
the
disparity between what this court regards as appropriate and the
sentence by the court
a
quo
is
too great to ignore.
[25]
I
propose the following order:
1.
The
appeal against conviction is refused;
2.
The
appeal against sentence is upheld in regards to counts 1 and 2;
3.
The
sentence on count 3 is confirmed;
4.
The
sentences on counts 1 and 2 are set aside;
5.
The
appellant is sentenced to:
5.1
12
years imprisonment on count 1;
5.2
3
years imprisonment on count 2;
5.3
It
is ordered that the three years imprisonment in count 2 run
concurrently with the 12 years imposed on count 1.
The
effective sentence is thus of 12 years imprisonment;
6.
The
12 years imprisonment is ante-dated to 11 November 2009.
______________________
C
Pretorius
Judge
of the High Court
I
agree,
______________________
MJ
Teffo
Judge
of the High Court
Case
number : A770/2013
Heard
on : 21 February 2014
For
the Appellant: Adv M Klein
Instructed
by: Legal Aid South Africa
For
the Respondent: Adv MD Majokana
Instructed
by: Director of Public Prosecutions
Date
of Judgment : 24 February 2014