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[2013] ZAGPPHC 246
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Dlamini v S (A885/12) [2013] ZAGPPHC 246; 2014 (1) SACR 530 (GP) (16 August 2013)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case No:
A885/12
DATE:16/08/2013
Coram
:
The Hon Mr Justice AML Phatudi, J; The Hon Mr Justice A De Vries;
and, the Hon Mr Justice AA Lamprecht, AJJ
In the matter between:
NHLANHLA
SOLOMON
DLAMINI
.......................................................
APPELLANT
versus
THE
STATE
….....................................................................................
RESPONDENT
JUDGMENT
LAMPRECHT, AJ:
Introduction
[1] Appellant was originally one
of three accused persons charged with murder, robbery with
aggravating circumstances, kidnapping,
unlawful possession of a fire
arm and unlawful possession of ammunition. The other two accused, in
different proceedings pleaded
guilty (accused no 2 only on the counts
of unlawful possession of a fire arm and ammunition and accused no 3
on all five counts);
and, they were sentenced separately (accused no
2 to a term of imprisonment wholly suspended for 5 years and accused
no 3 to an
effective term of imprisonment of 35 years).
[2] The trial of appellant was
then separated and he was arraigned before Hussain J on all five
counts. He pleaded not guilty and,
after a trial on the merits, he
was convicted on all counts and sentenced as follows:
(a) Count 1 - murder: Life
imprisonment;
(b) Count 2 - robbery with
aggravating circumstances: 15 years imprisonment;
(c) Count 3 - kidnapping: 5
years imprisonment;
(d) Count 4 - unlawful
possession of a fire arm: 5 years imprisonment; and
(e) Count 5 - unlawful
possession of ammunition: 2 years imprisonment.
[3] His appeal to the Full Court
lies against sentence only - leave to appeal having been granted on
petition by the Supreme Court
of Appeal.
1
Counsel for the appellant has not argued that any of the sentences
for kidnapping or the unlawful possession of a fire arm and
ammunition are inappropriate, and attacks only the sentences of life
and 15 years imprisonment imposed on counts 1 and 2 respectively.
[4] Sentencing,
famously, is a matter pre-eminently falling squarely within the
purview of the trial court's discretion, which should
not lightly be
interfered with.
2
A sentence should only be interfered with on appeal where, (i) an
irregularity occurred; (ii) the trial court materially misdirected
itself on the question of sentence; or, (iii) the sentence could be
described as so disturbing that it induces a sense of shock.
The mere
fact that any or all the judges sitting on an appeal would have
imposed another sentence, be it heavier or more lenient,
if he
presided in first instance, is not enough reason for a court of
appeal to interfere with the sentence imposed. This much
is trite.
3
The facts - nature (seriousness) of the crimes
[5] The facts upon which
appellant was convicted can be summarised as follows:
5.1 Deceased, one Reforce Smith
Masuku, himself a notorious character (awaiting trial in a hijacking
matter and a person known
to buy stolen goods and illicit fire arms)
apparently told appellant, whom he knew, that he was interested in
buying a fire arm.
5.2 Appellant and the former
accused no 3 then approached the former accused no 2 who had a fire
arm and ammunition for sale. This
is the fire arm and the ammunition
that form the subject matter for the charges of unlawful possession
thereof - a 7.65mm pistol
and ammunition.
5.3 On 12 October 2001,
appellant and his two former co-accused went to deceased's home.
Deceased let them in because he knew appellant.
According to the
former accused no 2, who testified for the prosecution, appellant was
the one who took possession of the fire
arm and had it in his
possession all along when deceased was approached.
5.4 They then took deceased to
an outside building, where appellant showed deceased the fire arm.
Deceased took the pistol in his
hands and then said that he was
actually looking for a bigger calibre.
5.5 The former accused no 3 then
took the pistol from his hands and struck the deceased against his
head so that he fell. Deceased
was then tied up and the three accused
persons went back to the main house to take whatever they wanted to
rob from deceased. It
appeared that their intention from the outset
was to rob the deceased and not to sell him a fire arm.
5.6 When they entered the house,
they grabbed and bound the wife or partner of the deceased, Tammy
Sithole. According to her evidence,
it was appellant who tied her up
and placed her in a bedroom; and, appellant is the one who had a fire
arm which he carried on
his hip beneath the belt in his pants. None
of the other two were armed.
5.7 The three accused persons
then took and put various household items together in one room, which
they clearly intended of removing
at a later stage after first having
dealt with the deceased.
5.8 Deceased was then put in
the boot of his own car and was driven to an open veld nearby.
Appellant was the driver of the vehicle.
5.9 Deceased was taken out of
the vehicle and, although the former accused no 2 suggested that they
abandon him there, appellant
said that if they did, deceased would
come back and kill them. The former accused no 3 then took the fire
arm and shot the deceased
in the head, execution style.
5.10 The three then returned to
the house to collect their spoils. It appeared that Tammy Sithole
managed to free herself and went
for help. The three then heard
police sirens and ran away when the police arrived.
[6] Most of the above facts were
common cause, also having been embodied into appellant's plea
explanation. In his plea and evidence,
however, appellant denied that
he was in possession of the fire arm when they approached the
deceased, or that he played any leading
role in the scheme of events.
According to him, it was the former accused no 3 who had the fire arm
and who forced him (and the
former accused no 2) under threat of
being shot to participate in the whole affair. In other words, his
defence was that he acted
under compulsion. The trial judge rejected
his version, and rightly so, in the light of the evidence of Sithole
and the former
co-accused no 2 which he accepted. Appellant also
insisted on calling the former co-accused no 3 as a witness, who
contradicted
appellant's evidence.
[7] From the accepted evidence
and the circumstances the trial judge accepted that the whole motive
of their approaching the deceased
was not really to sell him a fire
arm, but to rob him. The resultant killing of the deceased also
appeared to have been carefully
planned and executed, in other words
"planned or premeditated". It is further clear from all the
accepted facts, that
the killing of the deceased took place during or
after the robbery with aggravating circumstances; and, that the
killing was the
result of the group of three acting in the execution
of or in furtherance of a common purpose or conspiracy to kill him.
This makes
the particular offence of murder one that is defined in
Part I of Schedule 2 of the Criminal Law Amendment Act 105 of 1997
(the
Minimum Sentencing Act) - three of the four defined categories
being applicable to the current facts.
[8] The robbery with aggravating
circumstances that appellant was convicted of obviously falls in the
category of robberies defined
in Part II of the same Schedule of the
Minimum Sentencing Act, not only because there were aggravating
circumstances, but also
because it also involved the taking of
deceased's vehicle.
[9] For these reasons, Husain J
was enjoined in terms of sections 51(1) and 51(2)(a)(i) of the
Minimum Sentencing Act to impose
minimum sentences of, life
imprisonment for the murder and 15 years imprisonment for the
robbery. That is unless he was satisfied,
which he was not, that
there are "substantial and compelling circumstances" that
justify the imposition of a lesser sentence
in each case.
Appellant's personal circumstances
[10] The following were found to
exist in appellant's favour:
10.1 Appellant is a first
offender.
10.2 He was approximately 25
years old when he committed the crimes.
10.3 He spent approximately 2
years behind bars awaiting trial.
10.4 Appellant is single, but
has one child to support.
10.5 He is relatively well
educated - he has a matric and enrolled in a college for a national
trade certificate. He was employed
as a carpenter, earning R350.00
per fortnight.
[11] The following adverse
aspects in appellant's personal circumstances appear from the record:
11.1 He has evidenced no
remorse for his deeds. Unlike his co-accused, he chose to plead not
guilty in all respects and tried
to shift the blame onto former
accused no 3, despite the fact that he knew that all evidence against
him would point in another
direction altogether.
11.2 Since he had an education,
was still receiving training and was working as a carpenter at the
time, he committed the crime
out of greed, not need. It would appear
as if his knowledge of the deceased (from when the deceased enquired
about the buying of
a fire arm) has led to his knowledge of the
relative wealth of the deceased; and, it was most probably him who
provided the other
accused persons with the information that inspired
the planning of the robbery.
Interests of society
[12] The trial Court correctly
observed that violent crime has escalated beyond control in this
country, and that "[a]rmed
robbery and murder" is a daily
occurrence, which is the very reason why "the legislature deemed
it necessary to try and
intervene with [prescribing] very harsh
minimum punishment[s]" in the Minimum Sentencing Act.
[13] As I remarked barely two
weeks ago in another appeal before the Full Court,
4
violent crime like murder, rape and robberies appear to have become
akin to a disease that has spread and gotten out of hand countrywide
and that, therefore, the courts are left with little choice but to
punish such crimes mainly with a view to provide victims with
retribution and to deter convicted and other would be criminals so as
to try and prevent crime. The courts need to act heavy-handed
in
cases like the current, lest rapacious violence is to be allowed to
flourish and anarchy ensues. Ever since the abolishment
of the death
penalty, which I am sure, could have been an option the trial Court
would have considered in this matter had it still
been admissible,
life imprisonment is the harshest sentence that can be imposed for
murder committed under these circumstances.
Appropriateness of the sentence
[14] Although it would have been
preferable for the presiding Judge to pertinently deal with the case
law pertaining to minimum
sentences
5
and to determine whether, having regard to all relevant features of
the case, substantial and compelling circumstances existed
justifying
the imposition of a lesser sentence on each of counts 1 and 2 than
life imprisonment and 15 years imprisonment, Hussain
J proceeded to
lay a basis for the sentences imposed as follows:
"Counsel
for the state argued that I am bound by the provisions of the General
Law Amendment Act setting out minimum punishment
(
sic
)
for the offences in question, Indeed, the murder and the robbery in
this case falls (
sic
)
within the ambit of that act. That being the case the state has
argued that I am obliged to impose the prescribed punishment.
However, in a case of this nature it is not necessary for me to be
compelled by any piece of legislation to send the accused to
jail
for a long time. I do not intent (
sic
)
to set out various factors in order to consider whether in the
circumstances there are substantial and compelling circumstances
which warrant a lesser punishment than the prescribed minimum.
Notwithstanding the provisions of this act, I would have no
hesitation
in this case to impose the maximum."
[15] We do not necessarily see
anything wrong with this approach. It is doubtlessly the absence of
such heavy-handed approaches
in circumstances like the current that
has inspired Parliament, as the chosen representatives of the people,
to enact the Minimum
Sentencing Act in the first place, which many
judicial officers view as a thorn in their side. What the learned
trial Judge is
saying is, that even had the Minimum Sentencing Act
not been passed, he would still in the light of all the circumstances
have
considered the sentences that he imposed as appropriate.
[16] In the light of everything
that has been said above, we are unanimously of the view that the
sentences imposed cannot be faulted
in any way. There was no material
misdirection and, in the circumstances, the sentences do not tend to
induce a sense of shock.
They in fact represent sentences that are
sensible and balanced, taking into account all relevant factors, and
would therefore
meet with the approval of the majority of law-abiding
citizens.
[17] We are not entirely sure as
to why the Supreme Court of Appeal granted appellant leave to appeal
his sentences, especially
the sentence on count 1, murder. Perhaps it
is because his co-accused (former accused no 3) did not receive life
imprisonment for
his part in the whole incident. He, after all, is
the one that pulled the trigger in order to kill the deceased.
Perhaps there
was some other reason, and we can only but speculate on
that score. What we do know, however, is that the Supreme Court of
Appeal
had already set the standard in cases such as these in
Director of Public
Prosecutions, KwaZulu-Natal v Ngcobo and Others
.
6
In that case, the three appellants were sentenced by the Court
a
quo
to 18 years
imprisonment for murder and 12 years imprisonment for robbery with
aggravating circumstances in circumstances where
the robbery and
resultant murder were equally callous and brutal than the current. On
appeal by the Director of Public Prosecutions,
the Supreme Court of
Appeal set aside those sentences and substituted them with life
imprisonment for the murder and 15 years imprisonment
for the robbery
with aggravating circumstances.
[18] We have further considered
the arguments advanced (and the case law, cited and not cited in the
heads of argument)
7
on behalf of appellant that his period of awaiting trial
incarceration should be regarded as a substantial and compelling
circumstance
that justifies the imposition of lesser sentences on
both counts 1 and 2. Especially where the charge of murder is
concerned, we
are of the view that the intention of the trial Court
(and of the legislature in section 51(1) of the Minimum Sentencing
Act) is
clear. The appellant should, ideally, be sent to prison for
the rest of his natural life. The fact that he has spent two years in
prison awaiting trial does not mean that the sentencing Court (or the
Court of Appeal) should now impose another sentence than
life
imprisonment. For a trial court (or a Court of Appeal) to be able to
properly compute a lesser sentence than life imprisonment,
it will
have to take parole legislation and policies into account to
determine how long a sentence of life imprisonment would effectively
be, before it can be adjusted downward. That is however the domain of
the Executive, and courts should be wary to tread on the
terrain of
other arms of government in order to preserve the separation of
powers doctrine.
8
In any event, "the test is not whether on its own that period of
[awaiting trial] detention constitutes a substantial or compelling
circumstance, but whether the effective sentence proposed is
proportionate to the crime or crimes committed: whether the sentence
in all the circumstances, including the period spent in detention
prior to conviction and sentencing, is a just one".
9
[19] As far as the charge of
robbery with aggravating circumstances is concerned, we are of the
opinion that a heavier sentence
than the minimum of 15 years called
for by section 51(2)(a)(i) of the Minimum Sentencing Act could justly
have been considered
and imposed in this matter. In these
circumstances, awaiting trial imprisonment on its own does not
provide for a 'substantial
and compelling circumstance' that
justifies the imposition of a lesser sentence than any minimum
sentence called for by law.
10
The two years awaiting trial period could therefore also not have
played a meaningful role to reduce the sentence on count 2. In
any
event, all the sentences of imprisonment imposed on counts 2 to 5,
are automatically absorbed by the sentence of life imprisonment
imposed on count 1, which is the most severe sentence that can be
imposed in this country. In this regard, Mr Thompson, for the
appellant, argued that it is not a valid argument that the sentence
on count 2 has now become academic simply because it is absorbed
by
the sentence of life imprisonment. According to him, the sentence on
count 2 will adversely affect appellant's position if he
is later
considered for placement on parole. We disagree. Firstly, as we have
indicated above,
11
the practice of the Executive to release prisoners on parole and the
legislation and policies regulating that practice should not
be
considered by trial courts and courts of appeal. Secondly, the fact
that the murder has been committed during the commission
of a robbery
with aggravating circumstances, already places the murder in the
category of murders mentioned in section 51(1) of
the Minimum
Sentencing Act,
12
which is something the Parole Board should in any event take into
account, regardless of the sentence that appellant has received
on
count 2. Thus, in our view, the effect of the periods of imprisonment
imposed on the other counts, particularly count 2 has
become of
academic value only, which is an issue that should not be entertained
on appeal.
[20] In any event, as rightly
pointed out by Ms Mahomed for the respondent, Hussein J made specific
mention of the awaiting trial
period in his reasons for sentence,
13
meaning that he did consider same before meting out sentence. In the
light of what has been said above, we do not think that the
period of
2 years awaiting trial imprisonment should have had the effect of
adjusting downward the sentences of life imprisonment
on count 1 or
15 years imprisonment on count 2.
[21] There is one further aspect
of the arguments advanced by Mr Thompson that need be dealt with.
Although no mention was made
thereof in his heads of argument or in
the papers before the Supreme Court of Appeal seeking leave to
appeal, he drew our attention
to the fact that, according to the case
record handed to him by his instructing attorney, Hussein J did not
only conduct the trial
of appellant, but also that of the former
accused no 2, who pleaded guilty on the charges of unlawful
possession of a fire arm
and ammunition. Referring to a case of
S
v Witbooi
that was
reportedly dealt with in the Supreme Court of the Ciskei in 1994,
14
he argued that it amounted to a misdirection by the sentencing court
if the court has had information relevant to sentencing from
another
case and he continues sentencing the accused before court
regardless. Although we do not properly understand the argument,
it
would appear that he is suggesting that, because Hussein J has also
sentenced accused no 2, it was irregular for him to conduct
the trial
and / or sentencing proceedings in respect of the appellant because
his mind could have been contaminated by facts that
he was already
privy to from another matter that he dealt with. We do not agree with
his submissions for the following reasons:
21.1 This issue has not been
disclosed to the trial Court when application was made for leave to
appeal, and no request was made
for a special entry in this regard.
Nor has it been disclosed when petitioning the Supreme Court of
Appeal.
21.2 According to the record
before us, the three accused were initially arraigned before Jajbay
AJ, and he was the judge that convicted
former accused no's 2 and 3
on their pleas of guilty, after which the matters of accused no's 1
and 2 were separated from that
of accused no 3. There is nothing in
the record before us suggesting that Hussein J dealt with both the
sentencing of accused
no 2 and the trial on the merit and sentencing
of appellant.
21.3 Even if that was indeed the
case, we are of the view that no irregularity occurred for the
reasons that follow. But even if
such could be regarded as an
irregularity that vitiates the proceedings, this is not the correct
forum
to deal with such question, since we are mandated to deal only with
the question of sentence on appeal. The correct route that
should be
taken is that application should be made to the trial Court for a
special entry to be made and to take it from there
on appeal. This is
however only an academic observation since Mr Thompson informed us
that he did take it up with the appellant,
and that he does not want
to take that route and only wants his appeal in respect of sentence
be dealt with.
21.4 The mere fact that a court
has taken cognisance of evidence in another matter than the one it is
seized with, does not mean
that the court is now barred from
conducting the trial (or the sentencing proceedings). Judges are
trained to leave out of consideration
evidence that is inadmissible
when determining a matter, whether on the merits or on sentence. A
judge that has done a bail application
during which cognisance was
taken of an accused person's previous convictions is not
automatically disqualified from doing the
trial.
15
A court is not necessarily disqualified from conducting a trial or
sentencing proceedings if, after conviction on a plea of guilty,
the
court takes cognisance of an accused person's previous convictions
before recording a plea of not guilty in terms of
section 113
of the
Criminal Procedure Act 51 of 1977
.
16
Why should a court that sentences one accused on a plea of guilty now
necessarily be barred from conducting the trial of another
accused
person in the same matter, or from sentencing him?
21.5 Lastly, from the record, it
appears that Hussein J did indeed take into account that it would be
dangerous to convict the appellant
only on the evidence of the former
accused no 2 and held that he does not trust Maluleka's evidence in
every respect. Hussein J
was only prepared to accept Maluleka's
evidence in those respects where he was corroborated by other
evidence, like the evidence
of Sithole and of the former accused no 3
who was called by appellant himself.
21.6 We do not think that there
was any misdirection by the trial Court in this regard, at least as
far as sentence is concerned.
[22] Lastly, Mr Thompson argued
that the trial Court misdirected itself in referring to the appellant
as "nothing but a thug",
who is a danger to society that
must be removed from society, whilst that is not the only inference
that can be made; and, by referring
to "acts of vigilantism"
since this case had nothing to do with vigilantism. The short answer
to this is that we cannot
think of any other appropriate term with
which appellant should be referred to than 'thug'. The deed was a
callous and brutal one
by an armed gang of which appellant was the
obvious leader. What they did amounted to nothing else but sheer
'thuggery'. Finally,
the reference to 'acts of vigilantism' was not
intended to describe the facts before the Court of first instance,
but to substantiate
the Court's assertion that, if lenient sentences
were to be imposed, the criminal justice system is bound to fall into
disrepute
with society resorting to taking the law into their own
hands.
[23] We gave anxious
consideration to all the arguments advanced by Counsel for the
Appellant and Counsel for the state, as well
as all the case law
referred to in their respective heads of argument, which have been
invaluable. We are however unanimously of
the view that the appeal
against sentence cannot succeed.
The order
[24] It is accordingly ordered
that the appeal against sentences be dismissed and the original
sentences be confirmed.
A A LAMPRECHT
ACTING JUDGE OF THE NORTH
GAUTENG HIGH COURT
I agree
___________________
A DE VRIES
ACTING JUDGE OF THE NORTH
GAUTENG HIGH COURT
I agree and it is so ordered
__________________
AML PHATUDI
JUDGE OF THE NORTH GAUTENG HIGH COURT
Representation
for the applicant
:
Counsel: Adv
Charles E Thompson
Instructed by:
Representation
for respondent
:
Counsel: Adv
S Mahomed
Instructed by: Director of Public
Prosecutions
High Court
Pretoria
1
Navsa JA and Plasket AJA.
2
See
S
v De Jager and Another
1965 (2) SA 616
(A);
S
v Rabie
1975 (4) SA 855
(A);
S
v Petkar
1988 (3) SA 571
(A) at 574C.
3
See
S
v Pillay
1977 (4) SA 531
(A) at 535E-G;
S
v Holder
1979 (2) SA 70
(A). See also
S
v Mhlakaza and Another
1997 (1) SACR 515
(SCA).
4
Mzolisi Zolla Mahlatsi v S
- case no A396/2012 dated 26 July 2013.
5
E.g., the
locus classicus, S v Malgas
2001 (1) SACR 469
SCA
at para [25]; and others.
6
[2009] 4 All SA 295
(SCA) (1 June
2009).
7
The first reported case in South Africa in this regard is
S
v Stephen and Another
1994
(2) SACR 163
(W) at 168f [referring to
Gravino
(70/71) Crim LQ 434 (Quebec Court of Appeal)]. In
S
v Vilakazi and Others
2000
(1) SACR 140
(W) this approach was not followed. Then came
S
v Brophy and Others
2007
(2) SACR 56
(W) at paras [16]-[19], where
Vilakazi
was overruled. It would however now appear that
Brophy
has been overruled by the SCA, at least as far as minimum sentences
are concerned. See
S v
Radebe and Another
2013
(2) SACR 165
(SCA) at paras [11]-[15].
8
S v Botha
2006 (2) SACR 110
(SCA) at paras [25]-[26]. See also
S
v Matlala
2003 (1) SACR 80
(SCA). See also
S
v Mthimkulu
2013 (2) SACR 89
(SCA).
9
S v Radebe and Another supra
footnote 7 at para [14].
10
See
S
v Radebe and Another supra
footnote
7 at paras [13] - [16].
11
Supra
para [18], footnote 8.
12
See para (c)(ii) of the category 'murder' in
Part I
of Schedule 2 of the Minimum Sentencing Act.
13
Vol
1,
P 81
lines 25-6 of the appeal record.
14
The reference that he gave us is
S
v Witbooi
1994 (1) SACR
529
(Csk). We could not find the relevant decision on that
reference.
15
See
S
v Hlati
2000 (2) SACR 325
(N).
16
E.g.,
S v Sass en Andere
1986 (2) SA 146
(NC). Cf., however,
S v Fourie
1991 (1) SACR 21
(T), which might be in need for
reconsideration at an appropriate time in the light of what has been
said here and in A Kruger
Hiemstra's Criminal Procedure
(LexisNexis, Loose Leaf) at 17-18, 17-20.