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[2014] ZAGPPHC 199
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Mogaga v S (A622/2013) [2014] ZAGPPHC 199 (26 March 2014)
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: A622/2013
Date
heard: 26 February 2014
Date of judgment: 26 March 2014
In the matter between:
JABULANI ZOMAZOMA
MOGAGA
...........................................
Appellant
And
THE
STATE
..................................................................................
Respondent
SUMMARY:
Sentence: Imposition of sentence -
Competency of a sentence of life imprisonment plus a further period
of imprisonment -section
39 (2) (a) (i) of
Correctional Services Act
111 of 1998
- Competency of fixing a non- parole period -
Section
276B
(1) (b) of
Criminal Procedure Act 51 of 1977
.
JUDGMENT
A.M.L. PHATUDI J:
[1]
The appellant was accused 2 when
convicted in the High Court of South Africa, Transvaal Provincial
Division
[1]
(the trial court) on: Count 1: Murder;
Count 2: Housebreaking with intent to rob and
robbery with aggravating circumstances;
Count 3: Unlawful possession of a firearm and
Count 4: Unlawful possession of ammunition.
[2]
The appellant was sentenced to life
imprisonment, 20 years imprisonment, 5 years imprisonment and 2 years
imprisonment for count
1 to 4 respectively. The trial court further
stated that the appellant was thus sentenced to an effective term of
life imprisonment
plus
a further 27 years imprisonment.
[2]
It was further recommended that the Department of Correctional
Services should only release the appellant on parole after [the
appellant] could have served at least 30 years of his sentence.
[3]
[3]
The appellant petitioned the Supreme
Court of Appeal (SCA) after the refusal by the trial court of his
application for leave to
appeal against both conviction and
sentences. The SCA granted leave to appeal to the Full Court of North
Gauteng High Court
[4]
against sentence only. The SCA further ordered:
‘2. without limiting the scope of the
appeal, the court of appeal is requested to
consider the following in particular:
(a)
The
competency of a sentence of life imprisonment plus a further period
of 27 years’ imprisonment bearing in mind the provisions
of
section 39(2)(a)(i) of the Correctional Services Act 111 of 1998.
(b)
The
competency of fixing a non-parole period of 30 years bearing in mind
the provisions of
section 276B
(1) (b) of the
Criminal Procedure Act
51 of 1977
.
3. In the event of the court interfering with
the sentence on any grounds it is requested to forward a copy of its
judgment to the
[Legal Aid South Africa] and invite it to obtain
instructions from accused 1 to apply for leave to appeal against
sentence.’
[5]
[4]
This is thus an appeal against the
sentences imposed by Els J (the trial court) on 14 October 2003.
AD SENTENCE:
[5]
It is trite law that in an appeal
against sentence, the court of appeal is guided by the principle that
punishment is pre-eminently
a matter for the discretion of the trial
court. The appeal court can only interfere with the trial court’s
sentence if the
court a quo misdirected itself in respect of the
imposition of sentence or where the sentence imposed is either
disturbingly or
shockingly inappropriate.
Competency of life imprisonment plus a further
period
[6]
I
find it prudent to consider what the SCA requested of us. First is
‘[t]he competency of a
sentence of life imprisonment plus a further period of 27 years
imprisonment vis-a-vis the provisions
of section 39(2) (a)
(i)
of the Correctional Service Act
111 of 1998.
[7]
Section 39 of the Correctional Service
Act 111 of 1998 (CSA 1998) provides:
‘(1) Subject to the provisions of
subsection (2) a sentence of incarceration takes effect from the day
on which that sentence
is passed, unless it is suspended under the
provisions of any law or unless the sentenced person is
released on bail pending a decision of a higher
court, in which case the sentence takes effect from the day on which
he or she submits
to or is taken into custody.
(2) (a) Subject to the provisions of paragraph
(b), a person who receives more than one sentence of incarceration or
receives additional
sentences while serving a term of incarceration,
must serve each such sentence, the one after the expiration, setting
aside or
remission of the other, in such order as the National
Commissioner may determine, unless the court specifically directs
otherwise,
or unless the court directs that such sentences shall run
concurrently but -
(i) any determinate sentence of incarceration
to be served by any person runs concurrently with a life sentence or
with sentence
of incarceration to be served by such person in
consequence of being declared a dangerous criminal.’
[8]
The CSA 1998 has been promulgated to
take effect from 31 July 2004. The CSA 1998 repealed the whole
Correctional Service Act 8 of
1959 (CSA 1959). Section 39 is amongst
the sections that became operational with effect from 31 July 2004
[6]
[9]
As
indicated above
[7]
,
the trial court sentenced the appellant on 14 October 2003. The CSA
1998 was not operational as yet. Section 32 of CSA 1959 made
provisions similar to those enacted under section 39 of CSA 1998.
Section 32(2) of CSA 1959 provided, for ease of reference, that
‘[w]hen a person receives
more than one sentence of imprisonment or receives additional
sentences while serving a term of
imprisonment, each such sentence
shall be served the one after the expiration, setting aside or
remission of the other in such
order as the Commissioner may
determine, unless the court specifically directs otherwise, or unless
the court directs that such
sentences shall run concurrently:
Provided that any such sentence of imprisonment or additional
sentence of imprisonment in which
solitary confinement with or
without spare diet is imposed, shall be served first: Provided
further that any determinate sentence
of imprisonment to be served by
any person shall run concurrently with a life sentence or with an
indeterminate sentence of imprisonment
to be served by such person in
consequence of being declared an habitual criminal; and that one or
more life sentences and one
or more such indeterminate sentences, or
two or more such indeterminate sentences, shall also run
concurrently.’
[10]
In
S v Mhlakaza and Another,
[8]
the Supreme Court of Appeal set out the principle that
£
[t]he
function of a sentencing court is to determine the term of
imprisonment a convicted person may serve.’
It
is further principled that
‘the
court has no control over the maximum or actual period served or to
be served.’
Added
thereto the court stated that
‘a
life sentence is thus a sentence that may, potentially, amount to
imprisonment for the rest of the prisoner’s natural
life.’
[9]
[11]
The
court in S v Mahlatsi
[10]
followed Mhlakaza decision and said that
‘the
sentencing court shall not consider the possibility of release on
parole when determining an appropriate sentence, but
that the
sentence imposed must be one which the court intends as the ultimate
punishment that should be served and that release
on parole is a
function of the executive arm of government that courts should not
likely interfere with.’
[12]
Considering the sentence of life
imprisonment plus a further period of 27 years imprisonment vis-a-vis
the provisions of section
32(2) of the then Correctional Services Act
of 1959, (which was operational at the time of imposition of the
sentence), it is clear
that
there is a misdirection on the part of the
trial court in imposing the said sentence.
[13]
It is further clear that the trial court
ought to have ordered the sentence of 27 years’ imprisonment in
respect of counts
2, 3 and 4 to run concurrently with the sentence of
life imprisonment in respect of count 1.
[14]
It is on the basis of such misdirection
that this court stands to interfere with the sentence.
Competency of fixing a non-parole period
[15]
The second issue to be determined is the
competence of fixing a non-parole period of 30 years bearing in mind
the provisions of
the
Criminal Procedure Act 51 of 1977
as amended.
[16]
Section 276B
of the
Criminal Procedure
Act 51 of 1977
was inserted by
section 22
of the Parole and
Correctional Supervision
Amendment Act 87 of 1997.
[11]
The section provides for the fixing of non-parole period. It is
enacted that
‘(a) if a court sentences a person
convicted of an offence to imprisonment for a period of two years or
longer, the court
may, as part of the sentence, fix a period during
which the person shall not be placed on parole.
(b)
Such period shall be referred to as the
non-parole period, and may not exceed two thirds of the term of
imprisonment imposed or
25 years, whichever is the shorter.
(c)
lf a person who is convicted of two or
more offences is sentenced to imprisonment and the court directs that
the sentences of imprisonment
shall run concurrently, the court
shall, subject to subsection (1)(b), fix the non-parole period in
respect of the effective period
of imprisonment.’
[12]
[17]
On the reading of the section, it is
clear that the court has the discretion to fix a period during which
a convict shall not be
placed on parole.
[13]
However, such a “fixed non-parole period” must not exceed
two thirds of the term of imprisonment imposed or 25 years,
whichever
is the shorter.
[14]
[18]
It is further clear on the reading of
the section that if a convict is convicted of two or more offences
which are ordered to run
concurrently, the court shall fix the
non-parole period, subject to the provisions of subsection (1) (b),
in respect of the effective
period of imprisonment.
[19]
Both counsel concede in their
submissions that the fixing of non-parole period of 30 years imposed
by the trial court was wrong
and stands to be interfered with.
[20]
It must, however, be borne in mind that
at the time of the trial court imposing the sentences, the amendment
to the
Criminal Procedure Act was
not as yet effected.
[15]
The appellant
[16]
submits, without reference to any authority thereto, that fixing of a
non-parole period of a sentence was done as a matter of practice.
The
said practice created a number of challenges that prompted the
insertion of
section 276B.
I am persuaded to accept that fixing a
non-parole period in sentences developed out of practice.
[21]
In my consideration of the submissions
made, I am unable to fault the trial court in fixing the non-parole
period in his sentence
but for the number of years so fixed. As
demonstrated,
[17]
the
provisions in
section 32(2)
of Correctional Services Act 8 of 1959
did not provide for the maximum number of years that could be fixed
as a non-parole period
in a sentence.
[18]
There was nothing that precluded the trial court from fixing a
non-paro!e period other than giving sufficient recognition to the
possibility of rehabilitation, even in the presence of such serious
offences having been committed.
[22]
Fixing a non-parole period in sentencing
an offender should, in my view, be made in exceptional circumstances,
such as facts before
the trial court that would continue, after
sentence, which may result in a negative outcome for any future
decision about parole.
Such circumstances should be relevant to
parole and not only be aggravating factors of the crime
committed.
[19]
ln
addition thereto, when the trial court considers fixing a non-parole
period, the accused should be afforded the opportunity to
address the
court on the issue as to whether exceptional circumstances exist
which imperatively call for such an order to be made
and, if needs to
be invoked, what an appropriate non-parole period would be to order
in the circumstances
[20]
The
position was no different in the previous dispensation when the trial
court had to consider making a recommendation of a non-parole
period.
Failure by the trial court to afford the appellant such an
opportunity constitutes, in my view, misdirection that warrant
interference with the sentence imposed.
[23]
The position with regard to the fixing
of a non-parole period changed as a result of the insertion of
section 276B of
Criminal Procedure Act 51 o
f 1977. The section
prescribes a maximum number of years that a non-paroie period can be
fixed for. Had the fixing of a non-parole
period of 30 years been
done after the promulgation of
section 276B
of the
Criminal Procedure
Act, I
would not have hesitated to find further misdirection on the
part of the trial court.
AD SENTENCE ITSELF
[24]
On my perusal of the whole record before
this court, I noted that the indictment (charge sheet) is silent on
the application of
the provisions of the Criminal Law Amendment Act
105 of 1997(CLAA). The appellant was not even apprised of the
application of the
said CLAA. The application of the CLAA is
mentioned for the first time when the trial judge indicated that “
in
terme van artikel 51(1) van Wet 105 van 1997 is die Hof verplig om in
daardie geval lewenslange gevangenisstraf op te le.”
[21]
[25]
It
has been principled by the Supreme Court of Appeal
[22]
that
’where the State
intends to rely upon the sentencing regime created by the Act
[23]
,
a fair trial will generally demand that its
intentions 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 a position to appreciate
properly
in good time the charge that he faces as well as its
possible consequences.’
[24]
[26]
Both the appellant’s and State
counsel concede that the application of CLAA is neither spelt out in
the charge-sheet nor put
to the appellant at any stage during trial.
[27]
It has been found in cases I referred
to
[25]
that sentencing the appellant in terms of the provisions of the CLAA
while the said provisions are not spelt out in the charge-sheet,
constitutes misdirection. It is thus misdirection on the part of the
trial court to rely on the provisions of CLAA in imposing
a
prescribed sentence. It is as a result of that misdirection that this
court has to interfere with the sentence imposed.
[28]
Sentencing a convict was never an easy
task. Having read the record, I find it necessary to consider the
traditional triad factors,
being the offender, the offence and the
interest of the society in determining an appropriate sentence.
[29]
The appellant’s personal
circumstances were, as placed before the trial court, that he was a
first offender of 30 years of
age at the time of the commission of
the offence with 3 children to feed even though unmarried. Added
thereto, I find the appellant’s
selfincrimination at the
time of his plea explanation,
25
during
cross- examination of the key witness, Mrs Engelbrecht and during his
testimony when he endeavoured to reduce his moral blameworthiness.
He
explained how he and his co-accused went to the house. He painted a
picture of an innocent follower of his coaccused, unaware
that
robbery was committed. He has been helpful in revealing that which
the state could not have revealed in evidence.
[30]
Further thereto, the appellant’s
counsel submits that this court should find, coupled with the above
mentioned personal circumstances
that the appellant is a candidate
for rehabilitation.
[31]
In rebuttal thereto, the State
27
submits that the offence committed, especially murder, was brutal.
The sanctity of the deceased home was breached and the trust
in the
protection vested in the deceased by his children has, as well, been
breached. Life has been lost in the commission of the
offence. State
counsel concedes that life imprisonment is not an appropriate
sentence to impose.
[32]
I am mindful that the commission of the
offence was planned and executed by the appellant and a gang of
perpetrators. Murder was
committed during the robbery and in the
presence of the deceased’s wife and their two minor children.
The goods robbed were
of a substantial value and were never
recovered. The court in Director of Public Prosecution, KwaZulu Natal
v Ngcobo
[26]
stated, as penned by Navsa JA, that ‘
courts
are expected to dispense justice. This kind of brutality is
regrettably too regularly a part of life in South Africa.’
[27]
[33]
In my final analysis, considering the
words of Flemming DJP (as he then was) in S v Martin
[28]
where he stated that “life
sentence
imposed upon a lively man of 30 years imposes a much longer and
harsher sentence...,”!
am
of the view that a sentence of 25 years imprisonment will be a good
message to the offender and other would be offenders that
such
behaviour will be met with the full force and effect of the law.
[29]
I in the result make the following order:
Order:
1.
The
appeal against sentence is upheld.
2.
The
sentence imposed by the trial court is set aside and replaced with
the following:
“The accused is sentenced to:
Count 1: 25 year’s imprisonment Count 2:
12 year’s imprisonment Count 3: 3 years imprisonment Count 4; 1
year imprisonment
The sentences on counts 2, 3 and 4 are ordered
to run concurrently with the sentence on count 1.
3.
The
sentence is antedated in terms of section 282 of the Criminal
Procedure Act 51 of 1997 to 14 October 2003.
4.
It
is further ordered that a copy of this judgment be forwarded to the
Legal Aid South Africa and Accused 1. The Legal Aid South
Africa is
invited to obtain instructions from accused 1 to apply for leave to
appeal against sentence.
A.M.L
Phatudi
Judge of the High Court
I agree.
C.PT Rabie
Judge of the High Court
I agree.
M.W. Msimeki Judge of the High Court
On Behalf of the Appellant: Legal Aid South
Africa
FNB Building Church Square Pretoria
Adv. V.Z. Nel
On Behalf of the Respondent: The Director of
Public Prosecutions
Church Square Pretoria
Adv.
A. Roos
[1]
The term is as referred on record.The court has since been renamed
Gauteng Division: Pretoria as envisaged in terms of section
6 of the
Superior Courts Act No 10 of 2013;see as well, The Directive by the
Chief Justice: February 2014: Directive 3/2014.
[2]
Record: page 72 line 7 - 11 - loosely translated.
[3]
Record: page 72 line 12 - 14 - loosely translated
[4]
Gauteng Division: Pretoria - see fn 1 supra
[5]
Record: SCA Order: page 231 and 232
[6]
Proclamation R38 - Government Gazette 26626 of 30 July 2004.
[7]
Paragraph [4] above
[8]
1997(1) SACR 515 SCA
[9]
Mhlakaza opcit
[10]
2013(2) SACR 625 (GNP) page 521
[11]
The section was promulgated on 1 October 2004.
[12]
Section 276B
(1) (a) and (b) and (2) of the
Criminal Procedure Act
51 of 1977
. My underline.
[13]
Section 276B
(1)(a)
[14]
Section 276B
(1)(b)
[15]
The sentence was imposed on 14 October 2003 whereas
section 276B
was
effected on 01 October 2004
[16]
Adv. V.Z. Nel from Legal Aid South Africa represents the appellant
[17]
Paragraphs [17] and [18]
[18]
The section only provides for any determinate sentence of
imprisonment to be served by any person shall run concurrently
with
a life sentence.
[19]
S v Stander 2012(1) SACR 537(SCA)
[20]
Rabie J penned in S v Ndlovu (A621/2013) [2014] GND {26 March 2014)
paragraph [20] (quorate by this Full Court) reffering
to S v
Mthimkhulu 2013 (2) SACR 89 (SCA)
[21]
Record: page 68 lines 20 - 25. In those circumstances, this court is
obliged in terms of section 51(1) of the Act 105 of
1997 to impose
life imprisonment. (My translation).
[22]
S v Tshabaiala; S v Legoa 2003(1) SACR 13 SCA; S v Ndlovu 2003(1)
SACR 331 SCA; S v Makatu 2006(2) SACR 582 SCA;S v Mashinini
and
Another 2012(1) SACR 604 SCA; S v Kolea 2013(1) SACR 409 SCA
[23]
Criminal Law Amendment Act 105 of 1997
[24]
S v Ndlovu - op cit - para [12]
[25]
Fn 22
[26]
2009(2) SACR 361
[27]
Ibid paragraph [26]
[28]
1996(1) SACR 172(W)
[29]
Ibid