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[2014] ZAGPPHC 332
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Hlongwane v S (A600/2013) [2014] ZAGPPHC 332; 2014 (2) SACR 397 (GP) (28 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A600/2013
DATE:
28 MAY 2014
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In the matter
between:
HLONGWANE,
MANQOBA
CALVIN
...........................................................................................
Appellant
V
THE
STATE
.....................................................................................................................................
Respondent
JUDGMENT
SPILG, J:
INTRODUCTION
1. The appellant and
his co-accused were charged on one count of robbery with aggravating
circumstances in that on 19 October 2011
and at Kwa Thema they had
assaulted the two complainants and forcibly took their cellphones.
2.
The appellant was convicted on 21 November 2012 in the Springs
Regional Court of robbery with aggravating circumstances as defined
in section 1 of the Criminal Procedure Act 51 of 1977
(‘the
CPA).
He
was sentenced to fifteen years imprisonment in terms of section 51(2)
of the Criminal Law Amendment Act 105 of 1997
(‘the
CLAA').
The
co-accused was acquitted as the State was unable to prove that his
presence at the scene.
3. The appellant was
refused leave to appeal by the trial court but on petition this court
granted leave in respect of both conviction
and sentence.
CONDONATION
4. The appellant
delivered his heads of argument out of time. An application for
condonation was filed. We were of the view that
an acceptable
explanation was provided and that prospects of success need not be
debated as leave to appeal had been granted on
petition. Condonation
was granted and the appeal proceeded before us.
FINDINGS
OF THE COURT
A QUO
5. The facts are
basically common cause and are set out in the following paragraphs.
6. During the day of
19 October 2011 the appellant and his co-participant approached the
two female complainants while they were
taking a short cut through an
open veld towards a supermarket. As the two men came nearer, the
first complainant’s friend
put her hand inside her bra to
adjust the cellphone she had concealed.
7.
The appellant’s heads of argument acknowledge that this
movement prompted him to swap sides with his co-participant so
that
the latter was now approaching the first complainant’s friend
from the same side. As they drew closer the co-participant
produced a
knife and
‘
demanded’
the
cell phones. He took the cellphone from where the second complainant
had attempted to conceal it. The first complainant attempted
to flee
but fell after some distance and the appellant caught up with her. He
again
‘
demanded’
her
cellphone and, when she claimed not to have one, put his hand inside
her bra, took the cellphone she had also hidden there and
ran in the
same direction as his coparticipant.
8. The trial court
found that the appellant had also tried to pull down the first
complainant’s pants prior to members of
the public approaching
the scene.
9. The appellant was
apprehended by a passer-by and the first complainant’s
cellphone was recovered. The magistrate noted
that the appellant’s
counsel had put to the first complainant that she had also handed her
cellphone over to the appellant
when she and the second complainant
were initially accosted and not after she had fled. However during
his testimony the appellant
denied that his counsel had been
instructed to put this version.
10.
The magistrate found that ..
it
is clear to the Court that he (i.e.
the
appellant,) was
in
the company of another person who indeed had a knife and who
threatened the complainants with that knife
.....
the
drawing of the knife by the person who was with accused 1 was clearly
designed to overcome any resistance which these two ladies
might
have”.
11.
It appears that the learned magistrate made these findings based
inter alia
on
the second complainant’s evidence that when the appellant and
his coparticipant approached them, the latter produced a
knife and
both
“
simultaneously
demanded phones from them. That is when my friend saw the knife and
ran away”.
The
knife was an okapi. The whole incident occurred within some 15
minutes.
12. Most
significantly for present purposes are the following findings made by
the learned magistrate;
a. the appellant was
not in possession of a knife or any other weapon at any time during
the commission of the offence;
b. the appellant was
in the company of another person who produced a knife;
c. the knife was an
okapi, i.e. a type of switch blade knife;
d.
“the drawing of the knife by the person who
was
with accused 1
(the
appellant)
was
clearly designed to overcome any resistance which these two ladies
might have”
(see
above)
THE SUBSTANTIVE
ISSUES ON CONVICTION
13. The appellant’s
argument in respect of the conviction centred on three issues;
a.
whether the evidence regarding the production of the knife is
sufficient to satisfy the requirement of aggravating circumstances
for
the
purposes of the CPA;
b. whether as a fact
the appellant was an accomplice as defined under the CPA; and
c.
if so, whether the definition of “
accomplice”
was
unconstitutional in that aggravating circumstances would be found in
respect of the appellant without having to prove intention
and where
he had not produced any weapon.
THE FINDING OF
AGGRAVATING CIRCUMSTANCES
14.The
first issue is whether the trial court was correct in concluding from
the facts that the co-participant
“
threatened
the complainants with that knife"
for
the purposes of finding the presence of aggravating circumstances and
if not, whether the co-participant was
‘
wielding’
the
knife in order to satisfy (in the alternative) the first
sub-paragraph in the definition of
‘
aggravating
circumstances’
15.
Section 1 of the CPA defines
‘
aggravating
circumstances’
in
relation to robbery or attempted robbery under paragraph (b) to mean:
(I)
the wielding of a
firearm or any other dangerous weapon;
(ii)
the infliction of
grievous bodily harm; or
(iii)a
t
hreat to inflict
grievous bodily harm by the offender or an accomplice on the occasion
when the offence is committed, whether before
or during or after the
commission of the offence
16.
It
is evident from the definition that aggravating circumstances will be
present in cases of robbery or attempted robbery where
either;
a. under
subparagraph (i), the perpetrator performs a particular type of
movement with the weapon, even though no actual bodily
harm is
inflicted; or
b.
under
subparagraph (ii), the perpetrator actually inflicts grievous bodily
harm with the weapon; or
c.
under
subparagraph (iii), the perpetrator threatens, whether by word or
conduct or both, to inflict grievous bodily harm.
17.
It
appears that in each sub-provision of the definition the legislature
intended to identify the appropriate
actus
reus,
(I.e.
an unlawful criminal act) that would attract the more severe
sanction. In this context it must be borne in mind that aggravating
circumstances is not a separate crime but a species of robbery which
affects sentencing (albeit that it also precludes prescription
from
running and obtaining bail is made more difficult). See generally
Minister of
Justice and Constitutional Development v Masingili
2013
JDR 2680 (CC) at paras 16, 17 and especially para 33.
Accordingly
it was necessary for the legislature to describe the type of conduct
that would justify a greater degree of culpability
where
dolus
(i.e.
the intention of the accused), in relation to aggravating
circumstances, is not an element (see
Masingili
at
para 34).
18.lt
is clear that each of the three situations described in the
sub-provisions of the definition does not require the presence
of the
other to amount to aggravating circumstances. Nonetheless each
subparagraph cannot be understood to impose an internal limitation
on
the other. Accordingly even if the term
‘
wielding’
excludes
‘
holding’
or
‘
pointing’
a
dangerous weapon for the purposes of subparagraph (i), it does not
preclude the same action from constituting a non-verbal threat
for
the purposes of subparagraph (iii).
19.
By
way of illustration: If something more than merely holding a weapon
is required to satisfy the requirement of either
‘
wielding’
a
dangerous weapon or constituting a threat to inflict grievous bodily
harm then aggravating circumstances would not be present
where,
during the course of a robbery, the member of a gang was simply to
put down the bag he was carrying and without uttering
a word, open it
to reveal a number of firearms or other weapons that could inflict
‘
grievous
bodily harm”.
In
my view it would result in an absurdity or inconsistency of
application if, during a robbery, the
‘
mere’
holding
of an AK47 assault rifle could be regarded in a less serious light
for sentencing purposes than wielding a knife.
20.
Perhaps
the most significant reason as to why the term
‘
wielding’
should
not restrict the interpretation of
‘
threat
to inflict
is
that the former provision was not contained in earlier legislation
whereas the latter not only was but also became the subject
of
definitive judicial pronouncements from the then Appellate Division
(eg;
R v Zonele
and others
1959(3)
SA 319 (AD) at 329A-G approved in
SvLoate
1962(1)
SA 312 (AD) at 320E).
In section 1 of the
old Criminal Procedure Act 56 of 1955 (as amended by section 4 of Act
9 of 1958- but prior to the further amendment
by section 3 of Act 75
of 1959 which extended the provision to accomplices);
“
Aggravating
circumstances
in relation to
robbery ‘means the infliction of grievous bodily harm or any
threat to inflict such harm’”.
(See
Zonele
at
329A; and see S
v
Mbele
1963(1)
SA 257 (N) at 259C for the 1959 amendment)
21.
In
Zonele
Holmes
AJA (at the time) said the following, when finding that during a
robbery each accused individually made a threat which fell
within the
meaning of
‘
aggravating
circumstances’
(at
329G);
“
(T)
he first appellant threatened Roberts with grievous bodily harm by
mounting guard over him with a sword.
The
fact that it
was
still in
its
scabbard
seems to me irrelevant.
In
effect he
was
saying to Roberts
“If you attempt to escape I shall draw and use this sword”,
(emphasis
added)
22.
It
appears that the present authors of Commentary on the Criminal
Procedure Act
(du
Toit, De Jageret a!)
may
have unintentionally created some confusion when stating that;
“
mere
possession of a weapon is not sufficient, but the wielding of even an
unloaded firearm will constitute aggravating circumstances”
(at
DEF 2A on section 1of CPA).
It
is evident from the context that the statement was confined to the
subprovision dealing with
“
wielding”.
This
becomes clearer if regard is had to the cited reference, being the
original
du Toit
Straf
in Suid-Afrika (1981) at 45, where each subparagraph of the
definition is considered separately. See also the later reference
to
Loate
at
320C-F when the authors deal with the
‘
threat
to inflict grievous bodily harm”.
23.
It
is also evident from the two originally defined situations that the
conduct which the legislature considers should attract greater
culpability ranges from the threat of inflicting grievous bodily harm
to the actual infliction of such harm. Accordingly the introduction
of ‘
wielding’
cannot
be regarded as an attempt by the legislature to interfere with the
already judicially defined scope of the other sub-provisions.
It
should rather be construed as a readily discernable collateral ground
to that of threatening to inflict the requisite degree
of harm. For
this reason and also to avoid the inconsistency or absurdity
illustrated earlier, the word “
wielding
”
in
subparagraph (i) should;
a.
not be interpreted
expressio
unius est exclusio alterius
so
as to exclude every other action involving the weapon from amounting
to a threat for the purposes of the sub-paragraph (iii)
of the
definition. In any event this aid to interpretation is generally
applied with some circumspection (eg;
Dawood,
Shalabi, Thomas v Minister of Home Affairs
2000
(1) SA 997
(C) 1020E-G and 1022F). See generally Lourens du Plessis
Re-Interpretation
of Statutes
at
238;
b.
not be interpreted restrictively within the confines of the
subparagraph.
24.This
last consideration engages the fundamental interpretational principle
of attempting to ascertain the intention of the legislature
(including the need in statute law to have due regard to
constitutional values) by reference to
‘‘
...the
context in which the words occur, even where the words to be
construed are clear and unambiguous.”
See
Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC) at para 90. In that case Ngcobo J (as he then was)
explained the proper approach to statutory interpretation (at para
90)
and referred to
Thoroughbred
Breeders’ Association v Price Waterhouse
2001
(4) SA 551
(SCA) where the SCA had confirmed that:
“
The
days are long past when blinkered peering at an isolated provision in
a statute was thought to be the only legitimate technique
in
interpreting it if it seemed on the face of it to have a readily
discernible meaning”
25.
The
interpretation to be adopted must also ensure that unintended
consequences do not arise by casting the net too wide. The facts
of S
v Isaacs and
another
2007
(1) SACR 43
(C) illustrate the point if
‘
wielding’
is
defined too broadly. In that case a knife hidden in the clothing of a
co-perpetrator had inadvertently slipped out during a struggle
with
the complainant. According to the appellants, the co-perpetrator then
only held the knife to try and regain control of it.
On appeal the
court found that the complainant released the handbag on seeing the
exposed blade of the knife but concluded that
there was no clear
indication that the co-perpetrator had
“
wielded
the knife he had in his possession”.
26.
The
danger of an overbroad definition was pertinently dealt with in S v
Mthembe
2004
JDR 0454 (W), another case referred to by
Mr
Nel
on
behalf of the appellant. The court referred to the
Reader’s
Digest Oxford Complete Word Finder at
1796
in which the meaning of
‘
wield’
includes
“
flourish,
swing, brandish, wave, handle, ply, use.”
The
court then proceeded:
“
Notionally
the word ‘wield’ signifies some form of physical
application (use) of the object which is ‘wielded’.
It
seems to suggest something more than merely referring to it, or
possession of it by the robber.
There appears to
me to be some logic attendant upon that interpretation, in that the
wielding of a firearm, in the sense of pointing,
brandishing,
flourishing it, et cetera, would carry with it a more poignant threat
to life or to do grievous bodily harm, thus
bringing about a
circumstance which may aptly be described as an ‘aggravating
circumstance’.”
See
generally
Mthembe
at
paras 26-27
27.
Most
standard dictionaries adopt a definition for
“
wield
“
that
requires more than just holding an object. By way of illustration
The
Oxford English Dictionary
(2
nd
ed. Vol. XX at 323) provides among several meanings;
“
To
use or handle with skill and effect”
(note
5) and;
“
To
direct the movement or action of, to control”
(note
4).
28.
Nonetheless
Zonele
informs
us that the visible presence of a dangerous weapon on the person of
the accused, although still sheathed (and by extrapolation,
carried
by that person in a holster or other overt manner) will constitute a
threat to inflict grievous bodily harm for the purposes
of the
present sub-paragraph (iii). It confirms that there are means, other
than by
‘
wielding’
an
alleged dangerous weapon, whereby the accused indicates a threat to
inflict grievous bodily harm, but that this will require
proof beyond
reasonable doubt (eg;
Isaacs
at
paras 37-38) whether by inference or otherwise and generally by
reference to accompanying words or conduct.
29.
Conversely,
such additional factors need not be proven where the prosecution is
able to establish that the weapon was
‘
wielded’.
This
would readily explain the introduction of the
‘
wielding’
sub-provision
(in addition to the existing ‘
threat’
and
‘
infliction’
situations).
If regard is had to the numerous courts that are generally seized
with such cases on almost a daily basis, it would
appear that the
legislature sought to obviate lengthy and spurious arguments being
raised that the brandishing or pointing of a
dangerous weapon did not
necessarily demonstrate beyond reasonable doubt a threat to inflict
grievous bodily harm.
30.
In
order to give effect to the intention of the legislature as discussed
earlier, the first subparagraph of the definition of aggravating
circumstances seeks to describe the
actus
reus
by
reference to the external manifestation of a deliberate action
involving a weapon where, by such action or other appearance,
the
assailant indicates that he would be prepared to use it. No proof
beyond an action which amounts to
‘
wielding’
a
dangerous weapon during the course of a robbery (as defined) is
required in order for aggravating circumstances to be present
under
subparagraph (i).
31.
I am therefore satisfied that the definition of the term
‘
wielding’
should
be restricted when considered within the context of the definition of
‘
aggravating
circumstances’
as
a whole, and the prejudicial consequences to the accused of such a
finding (as set out earlier) particularly by reference to
the minimum
sentencing policy under section 51 of the CPA. I am in respectful
agreement with the decisions already mentioned which
limit
‘
wielding’
to
the standard dictionary meaning and which requires more than just
possession or holding.
32.
In short
‘
wielding’
a
dangerous weapon will
per
se
constitute
aggravating circumstances whereas other forms of holding, carrying or
possessing the weapon will not amount to aggravating
circumstances
unless, having regard to the circumstances, they constitute a threat
to inflict grievous bodily harm for the purposes
of sub-paragraph
(iii).
33.
Accordingly, holding a high calibre assault rifle such as an AK47
with its muzzle facing the ground, whether by one person or
every
member of a gang during the course of a robbery at say a fast-food
outlet, may not amount to ‘
wielding’
in
the default type situation contemplated by sub-paragraph (i) but it
fits comfortably within the definition of a threat to inflict
grievous bodily harm under sub-paragraph (iii).
34.
Similarly
a robber who opens up his jacket to expose a firearm, which results
in the victim dropping his valuables and running away
even before the
firearm is drawn, may not have been ‘
wielding
’
it
for the purposes of sub-paragraph (i), but he was certainly
threatening to inflict grievous bodily harm from the time the firearm
was revealed, as determined in
Zonele
at
329G.
Zonele
remains
binding precedent on the meaning of
“
threat
to inflict”
grievous
bodily harm within the context of
‘
aggravating
circumstances’
in
robbery cases.
35.
These examples illustrate the point that the circumstances under
which an alleged weapon (see the toy gun case of S
v
Anthony
2002
(2) SACR 453
(C) at 454j - 455b and 456c - d) is produced or is
exposed will determine whether it constitutes a threat to inflict
grievous bodily
harm.
36..
Zonele
together
with
Masingili
inform
us that the determination of aggravating circumstances is not an
objective exercise to discern intention.
Zonele
adopted
a common sense approach in deciding whether the manner of displaying
the weapon amounted to a threat to inflict grievous
bodily harm. In
such cases the starting point must surely be that a dangerous weapon
is produced during a robbery in order to instil
fear that it will be
used to inflict grievous bodily harm should the victim not comply.
The
law is concerned only with determining the
actus
reus
in
order to find aggravating circumstances. As mentioned earlier, the
Constitutional Court confirmed that intention plays no part
in
determining culpability for the purposes of conviction; this
requirement is satisfied by the finding that the accused committed
the offence of robbery or attempted robbery. It will however remain
an aspect in the sentencing process when the court considers
the
presence or absence of substantial and compelling circumstances.
37.
I am satisfied that in the present case the drawing of the knife
during the course of a robbery where cellphones were demanded,
as
found by the trial court, constituted in the circumstances a threat
to inflict grievous bodily harm within the meaning of sub-paragraph
(iii) of the definition of
‘
aggravating
circumstances’.
AGGRAVATING
CIRCUMSTANCES
VIS A VIS
APPELANT
38.The
appellant’s argument proceeds on the basis that in order to
find aggravating circumstances in relation to the appellant
he had to
have been an accomplice, and since he was not in possession of the
knife the doctrine of common purpose would have to
be applied. The
State’s argument proceeded on a similar basis but
Mr
Mphahlele
contended
that it had satisfactorily demonstrated common purpose.
39. In my view there
are two preceding questions that must be answered in the appellant’s
favour before the issues as characterised
by him become relevant. The
first is whether the appellant was a co-perpetrator or accomplice in
respect of the robbery. The second
is whether an independent enquiry
must be undertaken to determine if the appellant is a co-perpetrator
or an accomplice where he
did not wield or threaten the complainants
with a knife, and where only his co-participant did.
40. In dealing with
these questions it becomes necessary to consider whether the doctrine
of common purpose applies at all in order
to render the appellant
culpable. This arises because both counsel argued from the standpoint
that the doctrine of common purpose
needed to be applied in order to
find that the appellant was an accomplice for purposes of aggravating
circumstances.
41
.The starting point is that a person can commit an offence directly
or vicariously through another and that where two or more
persons
agree to commit a specific crime, such as robbery, it is irrelevant
what task each was assigned for its execution. Each
is a
co-perpetrator because he or she had agreed to commit the crime and
either intended that force would be applied in order to
rob or
foresaw that possibility. Furthermore their agreement can be
established through circumstantial evidence alone. See generally
Snyman
Criminal
Law
(5
th
ed.) at 260-262;
Hiemstra’s
Criminal Procedure
on
section 155 of eth CPA at 22-25 and under the topic
‘
Unnecessary
reliance on common purpose
at
22-28 to 22-29.
42.
By contrast an accomplice
“
is
someone whose actions do not satisfy all the requirements for
criminal liability in the definition of the offence, but who
nonetheless
intentionally furthers the commission of a crime by
someone else who does comply with all the requirements (the
perpetrator)”.
See
Minister of
Justice and Constitutional Development v Masingili
2013
JDR 2680 (CC) at para 21 and see also Snyman at 258 para 2(b).
It
is explained by reference to a person who does not participate in the
commission of the offence but acquiesces in its commission
by others
through intentionally committing an act (such as providing
information, or providing the means or the opportunity) which
advances the commission of the offence or by failing to prevent the
offence (in cases where the accomplice had a legal duty to
act).
Accordingly the
actus
reus
is
committed exclusively by another and there is no joint causation to
hold the individual who assists liable as a coperpetrator.
It is
however necessary to show that the accomplice acted, or refrained
from doing so, with the intention of associating with or
furthering
the criminal act of the actual perpetrator. See generally Hiemstra at
22-25 to 22-26 and Snyman at 273-6 paras 1-3.
43.
The doctrine of common purpose is unrelated to finding that a person
is an accomplice. It is only relevant in order to determine
if he or
she is a coperpetrator. See Snyman at 258 The doctrine is invoked
where a number of persons who have a common purpose
to commit a
specific crime, although they have not necessarily expressly agreed
with one another to do so, as a fact together contribute
to the
commission of the offence (e.g. in cases of crowd violence leading to
death). Even though it is not possible to identify
which of them
causally contributed to the commission of the crime the conduct of
each participant will be imputed to the others
thereby rendering them
culpable as co-perpetrators. (See S
v
Khumalo en andere
[1991] ZASCA 70
;
1991
(4) SA 310
(A) at 343F-344B and 351A-F, Hiemstra at 22-27 to 22-29
and Snyman at p264-268, paras 7-10
44. It is evident on
the facts that the appellant readily meets the requirements of a
co-perpetrator to the crime of robbery since
an agreement that they
together would rob the two women can be inferred. Moreover he at all
times continued to associate with his
co-perpetrator when the knife
was drawn and after, rendering him at the very least vicariously
liable.
45.The
second question is whether a separate enquiry must be undertaken to
determine if the appellant is a co-perpetrator or an
accomplice where
he personally did not wield or threaten the complainants with a
knife. This was also answered by the Constitutional
Court in
Masingili
which
held that there is no requirement under the definition of
‘
aggravating
circumstances’
that
the State must prove a separate intent over and above that already
determined in respect of the robbery itself. This arises
because
aggravating circumstances does not amount to a separate offence but
remains “a
form
of robbery with more serious consequences for sentencing”
(at
para 33) and for that reason dolus is satisfied when the court finds
the accused culpable as a perpetrator,
co-perpetrator or
accomplice in respect of the robbery (at para 42). Moreover the
definition itself does not imply a requirement
of intent (at para
48).
CONSTITUTIONALITY
OF DEFINITION OF AGGRAVATING CIRCUMSTANCES
46.
In anticipation of the court finding that intention is not a
requirement for finding the presence of aggravating circumstances
where only the appellant’s associate produced the knife, Mr Nel
argued that this would render the provision unconstitutional.
Reliance was placed on S
v
Masingili and Others
2013
(2) SACR 67
(WCC) which held as much and referred its declaration of
constitutional invalidity to the Constitutional Court for
confirmation.
By contrast the State relied on the Full Bench decision
in this division of S
v
Tsepo Mofokeng
A644/2011
which declined to follow that decision.
47.The
Constitutional Court decision in
Masingili
came
out in November 2013 after the case was heard by us. It will be
gathered from those parts of the decision already referred
to that
dolus
is
not a separate requirement to be established for the purposes of
finding aggravating circumstances. Since aggravating circumstances
is
not a separate crime, intention is determined in the finding of
culpability for the robbery itself. The court accepted that
aggravating circumstances is specifically relevant to sentencing. It
also accepted that culpability is a factor to be weighed when
considering whether substantial and compelling circumstances are
present so as to justify the imposition of a sentence less than
the
prescribed minimum under section 51 of the CLAA.
48.
The Constitutional Court held that the accused was therefore not
deprived of his right to address the issue of culpability,
whether in
relation to the existence of substantial and compelling circumstances
or when otherwise considering the triad of sentencing
factors, by
demonstrating that he or she lacked intent with regard to the
actus
reus
which
constituted the aggravating circumstances (at paras 45-47 and 54).
The court concluded that the provisions regarding aggravating
circumstances were constitutionally valid.
49. Accordingly the
appeal on conviction is dismissed.
SENTENCE
50. Mr Nel argued
that although the appellant was legally represented such
representation was totally inadequate in respect of sentencing.
It
was pointed out that no information was placed before the court in
mitigation and the learned magistrate failed to request any.
51.There are
fundamental difficulties with the submissions. The most important is
that the appellant does not inform the court that
he was not properly
consulted on this aspect nor has he revealed the evidence that he
would have produced had he appreciated their
significance.
52. In my view it is
not enough for an accused to claim inadequate legal representation,
he must also show that it amounted to trial
prejudice which deprived
him of a fair hearing.
53.
It is also difficult to appreciate how a failure on the part of the
magistrate to make enquiries where the accused is legally
represented
can result, without more, in trial prejudice or a failure on the part
of the magistrate to perform his duties. Under
section 274(1) of the
CPA a court
“
may
... receive such evidence as it thinks fit in order to inform itself
as to the proper sentence to be passed.
The
provision is permissive, although the requirement of needing to be
informed might not be in the case of unrepresented accused
for
possible constitutional reasons. However where an accused is
represented a presiding officer is entitled to assume that a
deliberate decision was made not to produce evidence. Enquires direct
from the bench may also produce answers that will aggravate
the
accused’s position revealing that there was good reason not to
have placed too much evidence before the court.
54. Save perhaps
where the inexperience is woefully plain a magistrate might take the
risk that a failure to produce further evidence
was due to a failure
to consult at all or incompetence. Possibly the furthest a court can
go is to request whether the accused
wishes time to prepare on
sentencing or obtain a probation officer’s report or other
assessment.
55.lt would be
placing an unwarranted burden on a presiding officer to require,
where the accused is legally represented, that a
full assessment be
undertaken. It is therefore unnecessary for the purposes of this case
to set out in what circumstances and in
respect of what possibly
sentences it may be necessary to require a minimum set of
information.
56.
I agree that sentencing was handled by the accused legal
representative in a most perfunctory manner. This appears to be due
to the view taken that aggravating circumstances were shown and that
the issue of culpability in relation to using a weapon through
vicarious association could not be reopened. It is also evident from
the court a
quo’s
reasoning
that it considered the issue of culpability in relation to
aggravating circumstances to be a closed topic for sentencing
purposes.
57.
However, since the case preceded the decision in
Masingili
it
is understandable that neither the legal representative nor the trial
court would have been aware that the issue of
dolus
in
regard to culpability for the production of the knife by the
associate is a factor relevant to sentencing and may result in
finding the existence of substantial and compelling circumstances
justifying a reduction in the minimum prescribed sentence.
58.While
the terminology used may sound inappropriate since this court readily
appreciates that the decision in
Masingili
came
out after sentencing in the present case, the outcome of the
Constitutional Court decision and its reasoning results in a
misdirection by the trial court in;
a. assuming that the
appellant’s distinct culpability in relation to the finding of
aggravating circumstances could in law
be no different to that of his
co-perpetrator who actually held the knife; and
b. thereby failing
to consider that the appellant’s culpability in relation to
aggravating circumstances might result in finding
substantial and
compelling reasons justifying a reduction in the minimum sentence of
15 years.
59.We have
considered whether to determine sentence ourselves. It however
appears more appropriate to remit the matter back to the
regional
court as it will give the appellant an opportunity to present such
further evidence as may be considered relevant to inform
the court on
an appropriate sentence.
ORDER
60. In the result;
1. The appeal in
respect of conviction is dismissed;
2. The sentence
of fifteen years is set aside
3. Sentencing is
referred back to the presiding magistrate or if not available as
contemplated under section 275 of the CPA that
another regional court
magistrate imposes sentence afresh.
MASIPA J
I agree and it is só
ordered.
DATE OF HEARING: 28
October 2013
DATE OF JUDGEMENT:
28 May 2014
LEGAL
REPRESENTATION:
FOR APPELLANT: ADV
V.Z NEL
LEGAL AID SA,
PRETORIA
FOR RESPONDENT: ADV
W.K.K MPHAHLELE
DIRECTOR OF PUBLIC
PROSECUTIONS