About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2014
>>
[2014] ZAFSHC 214
|
|
Sethetho v S (A73/2014) [2014] ZAFSHC 214 (27 November 2014)
IN THE HIGH COURT,
BLOEMFONTEIN
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal No.: A73/2014
DATE: 27 NOVEMEBER 2014
In the appeal between:
JOSEPH ZANELE
SETHETHO
..................................
Appellant
And
THE
STATE
.................................................................
Respondent
CORAM: RAMPAI, AJP et TSATSI, AJ
JUDGEMENT: RAMPAI, AJP
HEARD ON: 18 JULY 2014
DELIVERED ON: 27 NOVEMBER 2014
[1] These were appeal proceedings. The
appellant was found guilty of two of the three charges. Following
his conviction, an effective
custodial sentence of 20 years was
imposed on him. He was aggrieved by both the conviction and the
sentence. He then came to
us on appeal with the leave of the trial
court. The respondent opposed the appeal on both fronts.
[2] The first charge against the
appellant was robbery with aggravating circumstances. The respondent
alleged that he and his co-perpetrators
committed the crime at the
International Airport in Bloemfontein on the 13th July 2006; that
they threatened to violently harm
the victims; that they were armed
with a firearm; that they forcibly overpowered Mr Dewald Grobler and
Mr Zanele Matsoso; and that
they robbed them of a 9mm pistol and
R2,91 million.
[3] It was then alleged that before,
during and after the robbery the accused were armed with a dangerous
weapon and that they had
used it to threaten to inflict serious
bodily harms on the victims.
[4] The third charge against the
appellant was one of theft. The respondent alleged that he and his
co-perpetrators committed the
crime in Bloemfontein on 20th October
2005 and that they stole a firearm the property of Gladman Sibisi or
in his lawful possession.
[5] The second charge was irrelevant to
the appeal.
[6] The appellant was arrested on 15th
July 2006, two days after the dramatic robbery at the airport, now
renamed the Braam Fischer.
His co-accused, Mr Vusi Mazwebe was
arrested on 23rd of October 2006.
[7] The two gentleman were tried in the
Bloemfontein Regional Court. The appellant, Mr Joseph Zanele
Sethetho and his co-accused,
Mr Vusi Mazwebe appeared as accused
number 1 and accused number 2 respectively. Each of them pleaded not
guilty to all the three
charges. Mr Dempers, a local attorney
appeared for the defence of both accused persons.
[8] The version of the state was
narrated by five witnesses. The two accused persons did not testify.
Moreover, none of them called
anyone to testify on his behalf. The
appellant made certain formal admissions and then closed his case.
The defence case was
then closed.
[9] On 31st July 2008 the verdict of
the regional magistrate was announced. The appellant was acquitted
in respect of the second
charge which was about theft of a motor
vehicle. However, he was found guilty as charged in respect of the
first charge, in other
words, armed robbery as well as the third
charge, in other words, theft of a firearm. The appellant’s
co-accused was acquitted
in respect of all the three charges.
[10] Still on 31st July 2008 the
regional magistrate sentenced the appellant to five years
imprisonment in respect of the third
charge and twenty years
imprisonment in respect of the first charge. The regional magistrate
directed that the appellant served
the two sentences concurrently.
[11] The appellant felt hard done by
the verdict and the punishment. He then filed an application for
leave to appeal on 5th September
2008 he was granted leave to appeal
against the conviction and sentence.
[12] As regards conviction, the grounds
of the appeal were:
“1. The presiding officer
Honourable Mr Mathews further insisted that the stolen money and
fire-arms which were recovered
from my parents’ home were mine,
wherelse (sic) there were other people in the house.
2. The fingerprints were never taken
from the said stole fire-arms.
3. The state prosecutor further
rectified the testimony of all the witnesses.
4. The state prosecutor further
dismissed the testimony of witness no 2 who is my biological mother,
saying that the witness testified
like that because she is my mother.
5. I was incarcerated on the 15 July
2006 and was taken for the identification on the 16 October 2006
which is very long. I appeared
in so many occasions before court,
even on the media newspapers, and TV.”
[13] The appellant, through is counsel,
made a concession that the trial court rightly convicted him. This
was done at the commencement
of the argument on appeal (see paragraph
7 of the Appellant’s Heads of Argument). He thereby abandoned
his appeal as against
conviction. Mr Makhene, counsel for the
appellant, orally repeated that he abided by the appellant’s
written concession.
[14] The concession was correctly made.
The evidence against the appellant was formidable. He was
unemployed. The police raided
his parental home at 4991 Zone 12
Sebokeng in Gauteng (see photo 1, exhibit “c”) during the
night between 14th July
2006 and 15th July 2006. During the search
the police found an amount R291 000,00 cash (vide photos 2, 3, 4, 5,
8, 9, 10, exhibit
“c”). The appellant gave no
explanation let alone a reasonable one for his possession of such a
huge amount of cash.
I mean, where on earth did he, a jobless
person, get that sort of money from?
[15] The evidence of the witness, Mr T
F Andrews, a police officer, was that he found the money in a blue
bag identified as the
appellant’s bag by his mother. The
appellant chose not to challenge such incriminating evidence.
Instead he exercised his
right to remain silent. Consequently he
cannot now be heard to say “there were other people in the
house”. The evidence
was that apart from the appellant’s
mother and his two little sisters, there were no other people found
in the house except
for the appellant and his erstwhile co-accused.
[16] Besides the money, the police also
recovered two stolen guns in the house (vide photo 2, exhibit “c”).
The guns
were found in the same bag belonging to the appellant. He
was positively identified by Mr Grobler at the police identification
parade. He was highly incriminated not only by the evidence tendered
by the prosecution’s witnesses but also by the formal
admissions he made in terms of section 220, Act No 51 of 1977.
[17] In the light of all those
circumstances, I could not find any material misdirection or
irregularity committed by the trial
court. I am indebted to Mr
Makhene for the responsible concession he made. I would, therefore
decline to interfere with the judgment
as regards conviction.
[18] As regards the sentence, the
question in the appeal was whether the sentence of 20 years
imprisonment imposed on the appellant
was appropriate and competent
or not. In view of the omission to warn him of the provisions of
section 51(2)
Criminal Procedure Amendment Act, No 105 of 1997
would
be invoked in the event of him being convicted. The entire argument
focused on the sentence imposed in respect of the first
charge.
[19] It will be recalled that the 20
year sentence concerns the charge of robbery with aggravating
circumstances which attracts
the prescribed minimum sentence of 15
years imprisonment in the case of a first offender in terms of
section 51(2)
read with
Part 2
, Schedule 2 Act No 105 of 1997.
[20] On behalf of the appellant, Mr
Makhene argued that nowhere on the record was it indicated to the
appellant that the penal provisions
of section 51(2)(a) Act No 105 of
1997 would be invoked and applied against him in the event of him
being convicted of armed robbery.
Counsel submitted that the
omission to warn the appellant accordingly rendered his trial unfair
and caused him great prejudice.
Therefore, he urged us to uphold the
appeal and decrimentally adjusts the sentence.
[21] On behalf of the appellant, Mr
Mohlala conceded that the appellant was not formally warned in terms
of section 51(2) Act No
105 of 1997. Notwithstanding such a
concession, counsel submitted that upon consideration of all the
evidence and all the other
factors relevant to sentencing it could
not be said that the sentence imposed on the appellant was
disproportionate to the gravity
of the crime. He urged us,
therefore, to dismiss the appeal and to confirm the sentence. That
we could not do and I shall proceed
to say why.
[22] The sentence component for the
regional judgment was no more than one page long. The regional
magistrate said the following:
“Die hof kan uit die totaliteit
van die faktore nie wesenlike en dwingende omstandighede vind nie.”
Having made that important finding the
court a quo proceeded in terms of section 51(2) Act No 105 of 1997
and sentenced the appellant
to 20 years imprisonment.
[23] The record shows that the enhanced
penal provision was mentioned for the very first time right at the
end of the appellant’s
criminal trial. Before then the
appellant was not warned that the provisions of the enhanced penal
legislation might be invoked
against him. The written indictment was
silent as regards the requisite warning in terms of section 51(2).
As a matter of fact
there was no averment in the charge sheet that
aggravating circumstances as defined in section 1 of the Criminal
Procedure Act
read with section 250 thereof were present. Before
convicting him the trial court itself did not draw his attention to
the prescribed
minimum sentence.
[24] A similar factual matrix arose in
S v Legoa
2003 (1) SACR 13
(SCA). At paragraph 27 of the decision,
Cameron JA, as he then was, remarked that it was highly unfair to
confront the appellant
with the prescribed minimum sentence after he
had pleaded guilty. The learned judge went on to say:
“More signally, the trial Court
in any event lacked jurisdiction entirely to impose the minimum
sentence.”
[25] In S v Ndlovu
2003 (1) SACR 331
(SCA) para [11] Mpati JA, as he then was, said:
“Whilst it is desirable that the
charge sheet should set out the facts the State intends to prove in
order to bring an accused
within an enhanced sentencing jurisdiction,
to do so is not essential. R v Zonele and Others
1959 (3) SA 319
(A)
at 323 A-H; S v Moloi
1969 (4) SA 421
(A) at 424 A-C. But in a recent
judgment of this Court Cameron JA reminds us that an accused person
has a constitutionally guaranteed
right to a fair trial that embraces
a concept of substantive fairness.”
[26] At paragraph [12] in S v Ndlovu
supra, Mpati JA reasoned that where the prosecution intends to rely
on the enhanced sentencing
regime created by the statute the concept
of a substantively fair trial will generally demand that its
intention to do so be pertinently
brought to the attention of the
accused person at the outset of the trial. The idea is that the
accused person must be placed
in a position to properly and fully
appreciate the charge (s)he faces as well as its possible enhanced
penal consequences in good
time.
[27] Where, as in this instances, the
accused was not warned, right at the outset or belatedly before
conviction, the right to be
informed of the charge with sufficient
detail – is undermined – S v Legoa supra and the
underlying purpose is frustrated
– S v Ndlovu.
“In invoking the provisions of
the Act without it having been pertinently brought to the appellant’s
attention that
this would be done rendered the trial in that respect
substantially unfair. That, in my view, constituted a substantial and
compelling
reason why the prescribed sentence ought not to have been
imposed.”
S v Ndlovu supra, on 337 at para [14]
per Mpati JA.
[28] In this matter the presiding
judicial officer fleetingly glossed over the factors relevant to
sentencing. Having done so,
the court a quo then invoked the penal
provisions of the special statute on sentence. The appellant was
then sentenced in terms
of section 51(2) Act No 105 of 1977. By so
doing the court a quo materially erred, with respect. The regional
magistrate lacked
the requisite penal jurisdiction to impose the
prescribed minimum sentence of 15 years imprisonment applicable in
the case of a
first offender let alone 20 years imprisonment
applicable in the case of a second offender – see section 51(2)
read with
Part 2 of Schedule 2.
[29] First and foremost it was
incumbent upon the prosecution to inform the appellant, as the
accused, of the penal implication
of the serious form of robbery he
was facing – S v Legoa, supra. Usually an accused person is
informed by reference, in
the indictment, to section 51 Act No 105 of
1997 read with the specific part of the relevant schedule of the
statute concerned.
Secondly, in the case where there is no such a
warning in the high court written indictment or in the regional court
written charge
sheet it becomes imperative for the trial judge or the
trial magistrate to do so. It is a recommendable practice for a
judge or
a magistrate always to familiarise himself or herself with
the averments of the indictment or the charge sheet before the
accused
is indicted or called upon to plead. Ideally such judicial
warning must be given before the stage of pleading – S v Langa
2010 (2) SACR 289
(KZP) 304 e – g at para [23]. In a worst
case scenario, a belated warning, advice or information about the
enhanced form
of sentence must be given before the verdict - S v
Langa supra. Drawing the attention of an accused after the verdict
is so belated
that the unfairness of the trial on merits can no
longer be cured at that stage. Thirdly, an accused person may
acquire knowledge
of section 51 in other ways than through the charge
sheet or judicial initiative – S v Legoa supra, paras [20] and
[21].
There are no numerus clausus choses of methods through which
an accused person may gain the requisite of the penal provisions of
the section. I have to sound a fair warning that, at times, the
third method may be riddled with dangerous and risky potholes.
[30] In the instant appeal, the record
showed that the sentencing phase of the trial was practically over
and done with when, for
the very first time during the entire course
of the trial, reference was made to section 51(2) and a sentence 5
years worse than
the prescribed minimum sentence of 15 years was
imposed on the appellant. It was way out of time. It was fatally
belated. Prior
to the actual imposition of the sentence there had
been no mention of the penal provisions of section 51.
[31] The appellant was legally
represented. However, it was not expressly contended by Mr Mohlala
on behalf of the respondent that
because he was, the appellant would
have acquired the requisite knowledge of such penal provisions
through his legal representation
– S v Mvelase
2004 (2) SACR
531
(W). With that decision I am in respectful disagreement. That
sort of reasoning is flawed for two reasons: In the first place
it
requires a trial court to assume that a legal representative, himself
or herself had knowledge of such penal provisions. In
the second
place it requires a trial court to assume that an accused person,
through his legal representative, must have acquired
such requisite
knowledge. It is undesirable to place an accused person, in any
given case, in such a double jeopardy merely on
the strength of the
fact that he had a lawyer on his side.
[32] More than mere legal
representative is required to satisfy the court that an accused had
the requisite knowledge – S
v Mseleku
2006 (2) SACR 574
(D) at
579c where Pillay J correctly observed that an accused person may
well have conducted his substantive defence differently
had he been
aware of the gravity of the enhance sentence he faced in the event of
his conviction. It is precisely here where the
substantive
unfairness of the appellant’s trial lies. An informed accused
might, for instance want initiate plea bargaining
negotiations or
substitute his junior counsel with a senior counsel Such unfairness
was occasioned by an omission to warning before
he pleaded or at any
time before the verdict. What really happened here was so belated
that I am inclined to say that the appellant
was not at all
meaningfully warned. In my view this case was not one of those cases
where upon careful and integrated reading
of the record as a whole, a
legitimate inference can be drawn that as an accused, the appellant
had acquired the requisite knowledge
in time to enable him to make an
informed decision as to how to conduct his defence on the merits.
[33] In S v Langa supra para [33]
Gorven J had this to say about a factual matrix pretty much analogous
to what we had to grapple
with in the instant appeal:
“This leads, then, to the enquiry
whether, in the present matter, the appellant had the requisite
knowledge. In my view a
court considering all the facts cannot be
satisfied that this was the case at any time prior to her conviction.
There is nothing
in the record, whether by way of the indictment, the
summary of substantial facts, the evidence led or the conduct of the
appellant
or her legal representative, which satisfies me that she
was aware of the State’s intention to rely on the provisions of
the Act at all,...”
[34] In the circumstances I have come
to the conclusion that the court a quo misdirected itself by invoking
the penal provisions
of section 51(2) at the final of sentencing.
The foundation on which the enquiry as to whether or not substantial
and compelling
circumstances existed was never laid down.
Consequently the invocation as the section was practically
impermissible. It was so
belated that the omission caused the
appellant a great deal of prejudice to his fair trial rights. The
court a quo committed a
material and thus appealable misdirection.
The reliance of the court a quo on the provisions of section 51(2)
must be held to
constitute the misdirection so material that it
rendered the sentence component of the appellant’s trial
substantially unfair.
Therefore, we are required to set aside the
sentence in respect of the first charge. Consequently we are
entitled to interfere
with the sentence and to consider afresh an
appropriate sentence - S v Makatu supra, paragraph [27] and S v Langa
supra, paragraph
[35].
[35] In resentencing the appellant we
took into account the following mitigating factors:
• The appellant was born on 24
June 1977;
• He was 35 years of age at the
time he committed the crimes and 37 years of age at the time he was
sentenced;
• Details of his formal education
regrettably appeared nowhere on record;
• He was incarcerated for two
years, from 15th July 2006 on the date he was arrested until 31st
July 2006 on the date which
he was sentenced;
• He earned his living as a street
hawker, prior to his arrest;
• He fathered 3 children, aged 20,
18 and 16 years of age;
• The recovered portion of the
stolen money was R291 000,00.
[36] I need to say something about the
recovery of stolen goods or part thereof. It is my view, and it is a
very firm view, that
the appellant deserved to be given credit for
the recovered portion of the stolen cash. Not because he was
instrumental in the
recovery process. We know he was not. We also
know that the police were instrumental for the recovery. However, it
is not so
much the question of who was instrumental for the recovery.
The question should rather be what was the impact of the recovery of
the stolen goods to the victim? Any cash received or recovered, in
this instance, reduced the extent of the victim’s
impoverishment
to a certain degree. Where nothing has been recovered
the victim bears the full adverse impact of the impoverishment
occasioned
by the robbery.
[37] In sentencing the appellant afresh
I also took into account certain aggravating factors: The appellant
lived in Sebokeng in
Gauteng. He committed the crimes in
Bloemfontein approximately 400km away from Sebokeng. He was not in
it alone. He was a member
of a gang. The criminal enterprise was
carefully planned. He had very reliable and constructive information
about the victims
and the movement of the money. He and his
co-perpetrators acquired a gun at least. They also all acquired a
get-away motor vehicle
at least. It would appear that a cash carrier
was monitored and tailed from the South African Reserve Bank in the
central business
district of Bloemfontein. From the city the cash
carrier drove to Braam Fischer Airport. It had a safe passage. It
was somewhat
unclear as to where the appellant came from. Whether he
had been following the cash carrier all the way to the airport by car
or whether he had been waiting for its arrival at the airport I could
not ascertain from the record.
[38] The cash carrier travelled without
any incident to the airport as I have already indicated. The crew of
the cash carrier offloaded
the cash canisters from the cash carrier
and loaded them into the private jet and quickly drove away from the
airport. It appeared
to me that the appellant and one of the robbers
ambushed the jet. They were armed and dangerous. They attacked the
pilot and
his crew at gunpoint. They forcibly robbed them of money
and a firearm. They then fled from the scene using a get-away car.
They netted a whooping sum of approximately R3 million.
[39] The brazen audacity of the
appellant showed that he was a very dangerous robber. The appellant
breached high security measures
to gain access into a very secure
portion of the airport an there to reach a light aircraft parked in
the Aero Care Zone of the
airport, an area reserved for the rendering
of emergency medical evacuation services. Such an area is reserved
for the rendering
of life saving medical services during emergencies
at airports all over the country. Breach of security in those
circumstances
was a strongly aggravating factor in my view. The huge
amount of cash stolen at the airport when the jet was on the verge of
taking
off was also a very strong aggravating factor. The actual
cash stolen and unrecovered was huge, R2.619 million.
[40] To make matters worse the
appellant was not a first offender. He was previously convicted of
robbery, unlicensed possession
of a fire-arm and unlawful possession
of ammunition in Klerksdorp on the 17th August 1998. He was
sentenced to an effective custodial
sentence of 10 years
imprisonment. He committed these crimes 8 years later, seemingly
after his release on parole. The appellant
was convicted alone. The
rest of his gang members in this case were never apprehended. The
recovered cash was a drop in the ocean.
The seriousness and the
magnitude of the armed robbery of which the appellant was convicted
cannot be questioned.
[41] This sort of criminality poses
very serious threat to aviation security in the land. Taking money
from a pilot inside a cockpit
of an aircraft, ready to take-off is
major aggravating factor. This sort of criminal conduct has to be
eradicated. The appellant
expressed no remorse for his conduct. He
still persisted that he was wrongly convicted and appealed the
verdict notwithstanding
formidable evidence against him. In this
matter aggravating factors completely eclipsed mitigating factors.
In my view the appellant
has to be deterrently and retributively
punished. There is hardly any indication that rehabilitation is on
the horizon here.
[42] Having considered the appellant’s
personal circumstances, on the one hand viz-a-viz the magnitude, the
prevalence and
gravity of the crime coupled with the interest of
society on the other hand, I am satisfied that a sentence of 18 years
imprisonment
would be an appropriate punishment for the appellant in
respect of the first charge. Any sentence less than that would be
disproportionate
to the crime committed.
[43] Accordingly I make the following
order:
43.1 The appeal fails as regards
conviction in respect of the first charge;
43.2 The conviction in respect of the
first charge stands;
43.3 The appeal succeeds as regards the
sentence imposed in connection with the first charge;
43.4 The sentence of 20 years
imprisonment is set aside and it is substituted with the sentence of
18 years imprisonment ante-dated
to 31 July 2008;
43.5 The sentence of 5 years
imprisonment imposed on the appellant in respect of the third charge
is confirmed;
43.6 The two sentences must run
concurrently.
M. H. RAMPAI, AJP
I concurred.
E. K. TSATSI, AJ
On behalf of the appellant: Adv.
J. S. Makhene
Instructed by: Legal Aid
BLOEMFONTEIN
On behalf of the respondent: Adv. F.
J. Pienaar
Instructed by: Director: Public
Prosecutions
BLOEMFONTEIN
/ebeket