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[2013] ZAFSHC 15
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Makibile and Others v S (A105/12) [2013] ZAFSHC 15 (21 February 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A105/12
In the matter between:
EDGAR SIPHO
MAKIBILE
....................................................
First
Applicant
HENDRIK MANDLA
MDLULI
...........................................
Second
Applicant
FRIKKIE LERASA
MOFOKENG
..........................................
Third
Applicant
NKATHAZO JACOB
MSIMANGA
.....................................
Fourth
Applicant
and
THE STATE
...............................................................................
Respondent
_______________________________________________________
CORAM:
LEKALE, J
et
DA ROCHA-BOLTNEY, AJ
_______________________________________________________
HEARD ON:
4
FEBRUARY 2013
_______________________________________________________
JUDGMENT BY:
LEKALE, J
_______________________________________________________
DELIVERED ON:
21 FEBRUARY 2013
_______________________________________________________
INTRODUCTION AND
BACKGROUND
[1] On 5 January 2011 the
appellants, who were legally represented, appeared before the
Regional Court at Odendaalsrus and pleaded
guilty to one count of
aggravated robbery, one count of unlawful possession of
semi-automatic pistol and one count of unlawful
possession of a
revolver as charges 1, 2 and 3 respectively. They were, thereupon,
all convicted on the basis of their respective
statements submitted
in terms of section 112(2) of the Criminal Procedure Act (CPA). On 9
February 2011 they were, eventually,
each sentenced to 6 (six) years
imprisonment on charge no 2 and 4 (four) years imprisonment on charge
no 3, which were directed
to run concurrently, with the effect that
they each had to serve 5 (five) years imprisonment in respect of both
charges. On the
robbery charge the fourth appellant was sentenced to
15 (fifteen) years imprisonment, while the other appellants were each
sentenced
to 12 (twelve) years imprisonment.
[2] They all felt
aggrieved by the convictions and sentences on charges 2 and 3 and the
sentences on charge no 1. They, thereupon,
applied unsuccessfully for
leave to appeal against the same. They, thereafter, petitioned the
Judge President of this court for
leave and, on 27 March 2012, leave
was granted to the first and fourth appellants to appeal against the
convictions and sentences
on charges 2 and 3 and to the two other
appellants to only appeal against the sentences on charges 2 and 3.
[3] We only have two
appeals before us after the second appellant’s appeal
technically lapsed following his death. In fact,
it appears from the
record that he passed away before an application for leave to appeal
had been launched on his behalf and,
a fortiori
, before this
court was petitioned and could grant leave to appeal, because,
according to Mr Reyneke for the appellants, he entered
immortality on
16 September 2011.
[4] The third appellant’s
appeal was removed from the roll at the commencement of the
proceedings due to his failure to prosecute
the same after he
terminated the mandate of the Legal Aid South Africa on 27 June 2012.
[5] On convicting the
appellants on all the charges the trial court found that they each
admitted all the elements of the offences
and that none of their
explanations disclosed any valid legal defence to the charges.
[6] The court below,
further, found that the robbery was well-planned and orchestrated
regard being had to the fact that some of
the miscreants came from
Gauteng and were armed with unlawful firearms, inclusive of a
semi-automatic pistol. The trial court,
further, observed that a shot
was fired in the direction of the robbery victim, although he was not
struck.
[7] On imposing the
relevant sentences, the court
a quo
found that substantial and
compelling circumstances existed which warranted a departure from the
prescribed minimum sentences of
fifteen years in respect of the
robbery charge and fifteen years in respect of unlawful possession of
a semi-automatic firearm.
The trial court, thereupon, proceeded to
enter such circumstances as being the fact that the first appellant
has a clean record,
the guilty pleas entered by the appellants, the
fact that none of the affected people sustained any injuries,
although a shot was
fired which served as a serious threat, the fact
that all the loot was recovered and, as such, the enterprise in
question suffered
no patrimonial loss as well as the fact that the
appellants spent one year five months each in custody as awaiting
trial inmates.
[8] In argument Mr
Reyneke, for the appellants, contends that there was no evidence
whatsoever before the trial court to show that
the two appellants
shared a common intention with the actual holders of the firearms to
exercise possession over the firearms in
question and, as such,
charges 2 and 3 could not be sustained as against the appellants.
[9] Mr Reyneke, further,
submits that in the light of the appellants’ personal
circumstances as well as the fact that they
pleaded guilty and spent
a lengthy period in custody awaiting trial, the sentences in question
should be directed to run concurrently
with the sentences imposed in
respect of charge no 1 in the event of the court confirming the
convictions on those charges. In
his view, the fact that the two
appellants were not the actual
detentors
of the firearms
reduces their moral blameworthiness and recognition should, as such,
be taken of the fact that the firearms were
carried and possessed in
order to facilitate the commission of the robbery in charge no 1.
[10] Mr de Nysschen, on
the other hand, filed a cross-appeal for the aggravation of the
sentences and submits that the convictions
are in order because the
appellants admitted the facts from which it is clear that they had
joint possession of the firearms and,
in fact, pleaded guilty to the
relevant charges.
[11] Mr de Nysschen,
further, submits that the trial court misdirected herself when
considering whether or not substantial and compelling
circumstances
existed for departing from minimum sentences. He concludes that the
fifteen years imprisonment prescribed for unlawful
possession of a
semi-automatic firearm, as a minimum sentence, should be imposed and
supports the four year sentences imposed in
respect of charge no 3.
[12] The gravity of the
offences involved, the circumstances in which they were committed, as
well as the circumstances surrounding
the arrest of the two
appellants and their companions are patent from the section 112(2)
statements submitted for each appellant
during the trial, as well as
the submissions made in mitigation and aggravation of the sentences.
[13] It is clear from the
statements in question that on the fateful morning the appellants and
their two fellow miscreants were
at the Spar Supermarket at
Odendaalsrus where they assaulted the owner and robbed him of his
property to the value of R74 386,00
inclusive of cash. The
appellants’ two companions carried a semi-automatic pistol and
a revolver respectively and a shot
was fired in the direction of the
owner, who, fortunately, was not struck. The workers were tied up
and, fortunately for all the
victims, the police arrived and took
control of the situation.
AD CONVICTIONS
[14] It is correctly
submitted for the appellants and, effectively, conceded for the State
that the enquiry for establishing whether
or not there was joint
possession by a group of persons is whether or not the State has
established the facts from which it can
properly be inferred, as the
only reasonable conclusion, that:
(a) the group had the
common intention (
animus
) to exercise possession over the
relevant item through the actual
detentor
; and
(b) the actual
detentor
had the intention to hold the item in question on behalf of the
group. (See
S v Mbuli
2003 (1) SACR 97
(SCA) at 155 b –
c.)
[15] It is, further,
correct as effectively contended for the appellants, that mere
knowledge by the appellants that their fellow
robbers were in
possession of the firearms is not
per se
sufficient to prove
joint possession. (See
S v Mbuli
, supra
, at
paragraph [72].)
[16] In the written
submissions Mr Reyneke limits his argument to the section 112(2)
statements of the appellants and only to certain
portions thereof. He
appears oblivious of the relevant contents of the statements of their
fellow robbers. In his oral submissions
he, however, correctly
concedes that those statements are relevant and should be considered.
[17] In our view a proper
enquiry in the instant matter extends to all the section 112(2)
statements insofar as the second leg of
the inquiry relates to the
state of mind of the actual holders of the firearms insofar as the
court is required to determine whether
the actual
detentors
had the intention to hold the firearms on behalf of the group. In our
view the enquiry requires the court to interpret the relevant
statements as a whole as the case is in the interpretation of
contracts and other documents. The task entails looking at the
relevant
words and phrases in context and not in isolation, as
correctly conceded by Mr Reyneke. (See
Swart v Cape Fabrix
(Pty) Ltd
1979 (1) SA 195
(A) at 202c.)
[18] As correctly
submitted by Mr de Nysschen, the two appellants admit as follows in
their respective statements after pointing
out that they were not in
possession of firearms, but knew that their fellow robbers were and
that the firearms were going to be
used in the robbery:
“
I admit
that the firearms and the ammunition that were taken to the
laboratory for analysis [are] the same that my friends and I
had in
our possession during the commission of the offence.
”
(See page 8 lines 9 –
12 of the record.)
“
I admit
that I am not a firearm licence holder for any of the firearms that
we had in our possession.
”
(See page 14 lines 23 –
24 and page 17 lines 7 – 8 of the record.)
“
I admit
that the results in the section 212 affidavit are those of the
firearms and ammunition that I had with my co-accused during
the
commission of the robbery.
”
(See page 115 paragraph 7
lines 13 – 17 of the record.)
[19] The appellants’
fellow robbers, on their part, declare as follows in their statements
after admitting that they were
in possession of the relevant
firearms:
“
... I
admit that the results and the findings of the 212 statements are
those of the firearms and ammunitions we had with my friends
during
the robbery.
”
(See page 11 lines 2 –
5 of the record.)
“
I admit
that I am not a firearm licence holder for any of the firearms that
we had within our possession.
”
(See page 15 lines 8 –
10 and page 15 lines 15 – 17 of the record.)
[20] In our judgment the
frequent appearance of possessory pronouns “
our
”,
“
we
” and “
my
” in relation to
possession in all the statements that served before the court below
is indicative of the fact that, although
only two robbers actually
carried firearms, all the robbers, inclusive of the appellants,
exercised possession over such firearms.
[21] It is, further,
clear, in our view that when the appellants declare that they were
not in possession of firearms, they actually
mean that they did not
carry any firearms but they jointly possessed the relevant firearms
with the actual
detentors
. The only reasonable inference which
may be drawn from the said statements, inclusive of the fact that the
appellants had a common
purpose with the other two miscreants to rob,
is that they and their companions had the intention to possess the
firearms jointly.
[22] We are, thus, in
respectful agreement with counsel for the State that the convictions
cannot be faulted on the grounds relied
upon by the appellants or on
any ground whatsoever regard also being had, as pointed out above, to
the fact that, at all material
times to the charges, the appellants
were acting in concert with the actual
detentors
in the
commission of the robbery. In this regard we are of the view that the
fact that the appellants acted in concert with the
actual
detentors
in the commission of robbery
is a factor from which, together
with other relevant factors, an inference of joint possession may, in
an appropriate case, be
drawn.
AD SENTENCES
[23] It is contended for
the appellants that the sentences should be directed to run
concurrently with the sentences imposed for
aggravated robbery
because the appellants were not the actual
detentors
of the
firearms and the firearms in question were only possessed in order to
carry out the robbery.
[24] On behalf of the
State it is submitted that no substantial and compelling
circumstances existed to justify a departure by the
trial court from
the fifteen years prescribed in respect of charge no 2.
[25] The legal position
is that a departure from prescribed minimum sentences is justified
only in the event of substantial and
compelling circumstances
actually being found and seen to exist. (See generally
S v
Malgas
2001 (1) SACR 469
(SCA).)
[26] In the absence of
such circumstances courts are obliged, as a matter of law, to
implement the prescribed minimum sentences.
(See
S v Matyityi
2011 (1) SACR 40
(SCA) at page 53 paragraph [23].)
[27] In determining
whether or not substantial and compelling circumstances exist regard
is had to the ultimate cumulative impact
of the mitigating
circumstances on the relevant crime and the interests of the society
with a view to establishing if, in the circumstances
of the
particular matter, the minimum sentence is just or appropriate. (See
S v Malgas
,
supra
, in general.)
[28] Marginal differences
in personal circumstances or degrees of participation of co-offenders
which might generally justify differentiating
between the
co-offenders are not, without more, justification for a departure
from minimum sentences as correctly pointed out by
Mr de Nysschen.
(See
S v Malgas
,
supra
, at page 481.)
[29] As correctly pointed
out for the State, the fact that the appellants pleaded guilty in the
instant matter is, at best for them,
neutral because they were caught
in flagrante delicto
and, as correctly found by the trial
court, did not have any reasonable option but to plead guilty. (See
S
v Barnard
2004 (1) SACR 191
(SCA) at 197.)
[30] A plea of guilty in
the instant matter does not
per se
indicate genuine remorse on
the part of the appellants. It is not evident from the material
properly before the trial court what
motivated the appellants to
commit the crimes and it is, further, not apparent
ex facie
the record what triggered their pleas of guilty. The trial court,
therefore, correctly concluded that the appellants and their
fellow
miscreants were motivated by self-enrichment and greed and that their
change of heart was really as a result of lack of
options on their
part due to the circumstances under which they were apprehended. (See
S v Matyityi
,
supra
, at 47 a – d.)
[31] The finding that
there exist substantial and compelling circumstances to depart from
the prescribed minimum sentences goes
against the gist of the factual
findings and conclusions of the trial court as correctly and
effectively pointed out for the State.
The reasoning of the trial
court in this regard, with respect, resembles a movement of a horse
which, in the course of a smooth
run, suddenly shies away from a
stone. All the factors relied upon to justify lesser sentences are,
in fact, either aggravating
in nature or neutral at best for the
appellants.
[32] There exists, as
correctly submitted for the State, no legal justification for
departing from the minimum sentences of fifteen
years in the present
matter. We are, as such, at liberty to interfere and re-adjust the
scales of justice to bring them in line
with the gravity of the
offence, the interests of the society as reflected in the prescribed
minimum sentences in question and
the personal circumstances of the
individual appellants. (See
S v Pieters
,
1987 (3) SA
171
(A).)
[33] There exists nothing
on record with regard to how and why the firearms were acquired.
There, thus, exists no basis on which
to conclude that the firearms
were possessed for the sole purpose of committing the robbery herein.
In our observation what is
patent
ex facie
the record is that
the serial numbers on the firearms had been removed and, as such, the
firearms could not be identified thereby.
[34] In the absence of
such legal justification for lesser sentences, the prescribed minimum
sentence prevails as of law. Failure
by the courts to observe the
duty to impose minimum sentences, where appropriate, invariably leads
to injustice as justice extends
both to the perpetrator of a crime
and the society. Courts should, therefore, not shy away from imposing
prescribed minimum sentences
where no substantial and compelling
circumstances exist. The subjective views of the presiding officer,
with regard to the appropriateness
of such sentences without a legal
cause therefor, are simply irrelevant to the matter.
[35] The cross appeal
must, therefore, succeed.
ORDER
[36] In the result the
first and fourth appellants’ respective appeals are dismissed.
[37] The convictions on
all the three charges, as well as the sentences in respect of charges
1 and 3, are confirmed.
[38] The cross-appeal is
upheld and the sentences imposed on the first and fourth appellants
in respect of charge no 2 are set aside
and in their place and stead
are substituted the following for each of first and fourth appellant:
“
AD
charge no 2 : Accused 2 and 5 are each sentenced to 15 (fifteen)
years imprisonment in terms of section 276(1)(b) of the Criminal
Procedure Act read with section 51 of Act 105 of 1997 as amended. The
4 (four) years imprisonment imposed in respect of charge
3 shall run
concurrently with the 15(fifteen) years in respect of charge 2 with
the result that each accused shall serve an effective
15 (fifteen)
years imprisonment in respect of the two charges.
”
[39]
The sentences are antedated to 9 February 2011.
______________
L. J. LEKALE, J
I concur.
___________________________
P.W. DA ROCHA-BOLTNEY,
AJ
On behalf of appellants:
Adv J.D. Reyneke
Instructed by:
Bloemfontein Justice Centre
BLOEMFONTEIN
On behalf of respondent:
Adv J.M. de Nysschen
Instructed by: Office of
the Director of Public Prosecutions
BLOEMFONTEIN
/spieterse