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[2013] ZAFSHC 110
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Motloung v S (A240/11) [2013] ZAFSHC 110 (30 May 2013)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal
No.: A240/11
In
the appeal between
DIPHAPANG
PIET MOTLOUNG
.
.............................................
Appellant
and
THE
STATE
.
.........................................................................
Respondent
CORAM:
RAMPAI,
AJP
et
MOCUMIE,
J
et
JORDAAN,
J
HEARD
ON:
29
APRIL 2013
DELIVERED
ON:
30
MAY 2013
MOCUMIE,
J
[1]
I have considered the judgment by Jordaan J. I however respectfully
hold a different view as far as the cumulative effect of
the sentence
is concerned. I set out my reasons briefly in what follows.
[2]
It is trite that, sentencing is pre-eminently within the discretion
of a trial court. It will only be interfered with where
the trial
court has not exercised its discretion judicially. The test for
interference is (a) whether the discretion of a trial
court has been
judicially and properly exercised and (b) whether the sentence
imposed is vitiated by irregularity or misdirection
or is shockingly
or disturbingly inappropriate. (See
S
v Rabie
1975
4
SA
855 (A) at 857D - G.)
[3]
It is also trite that in imposing a sentence the sentencing court
must take into account the seriousness of the offence, the
interests
of society and the personal circumstances of the accused. (
S
v
Zinn
1969
(2) SA 537
(A).) A sentencing court is also bound to take into account the
accused's age at the time of the commission of the offence.
[4]
In arriving at an appropriate sentence Holmes JA in
Rabie
above set
out the guidelines which courts must consider and apply when
considering appropriate sentence to impose. I will not repeat
them.
Suffice to highlight the following for purposes of this judgment:
“
(a)
Punishment must fit the crime and the criminal. (See
R
v Motsepe
1923
TPD 380.)
(b)
The interests of society in punishment must be taken into account.
(See
R v
Karg
1961(1)
SA 231 AD at 236A-B; S
1
/
Zinn
1969 (2) SA 537
(AD)
at 540G.)
(c)
Then
there is the consideration of
mercy
or compassion
or
plain humanity lor what is now, in the new democratic
order known
as ‘ubuntul.
It
has nothing to do with maudlin sympathy for the accused. While
recognising that fair punishment may sometimes have to be robust,
mercy is a balanced and humane quality of thought which tempers one’s
approach when considering the basic factors of letting
the punishment
fit the criminal as well as the crime and being fair to society. See
S v
Narker and Another
,
1975 (1) SA 583
AD at 586D. That decision also pointed out that it
would be wrong first to arrive at an appropriate sentence by
reference to the
relevant factors, and then to seek to reduce it back
for mercy’s sake. This was also recognised in
S
v Roux
1975(3)
SA 190 AD.
(e)
This quality of mercy or compassion is not something that has
judicially cropped up recently. It was first mentioned in this
country some 40 years ago, by BEYERS, JA; in Ex
parte
Minister of Justice: In re R v Berger and Another
,
1936 A. D.334 at p. 341:
‘
Tereg
word gese dat na skuldigbevinding die Regter in 'n ander sfeer
verkeer waar die ople van die straf gepaard moet gaan met
oordeelkundige genade en menslikheid ooreenkomstig die feite en
omstandighede van die geval. ’
[5]
The above guidelines have been applied by our courts generally in
respect of all offenders without particular reference to youthful
offenders despite the
Criminal Procedure Act of 1977
always having
provided for a distinction between adults and youthful offenders when
sentence is imposed under
sections 276(1)(h)
; and
297
(1).
[6]
Perhaps as a point of departure it is important to state that the
Constitution of South Africa, 1996, has ushered in a new way
of
sentencing youthful offenders over and above what the
Criminal
Procedure Act provides
. The
Child Justice Act of 2008
has also
introduced a deliberate process of dealing with youthful offenders to
ensure that they are not treated like adults.
[7]
The traditional aims of punishment ,
’
deterrence;
preventive, reformative and retributive’,
have been affected by
the Constitution of the Republic of South Africa, 1996, and, having
regard to sections 28(1 )(g) and 28(2)
of the Constitution and the
relevant international conventions, in every case involving a
juvenile offender, the ambit and scope
of sentencing had to be
widened in order to give effect to the principle that a child
offender was 'not to be detained, except
as a measure of last resort'
and, if detention of a child were unavoidable, it should be for 'only
the shortest appropriate period
of time'. Furthermore, if detention
was warranted, the Court would have to give directions that the child
be detained separately
from persons over the age of 18.
(Director
of
Public
Prosecutions. Kwazulu-Natal v P
2006 (1) SACR 243
(SCA) at paragraphs [13] and [18] at 250h - 251b and 252h -253b.)
[8]
The offences the appellant committed are serious and the interests of
society need to be protected against offenders such as
him. At the
same time, the interests of society need to be balanced against that
of the offender and the seriousness of the offence.
The question is
whether an effective 30 years imprisonment is disproportionate to the
appellant’s conduct and personal circumstances.
The appellant
was 17 years and 7 months old at the time of the commission of the
offences. He was single, with no dependants but
attending school and
in Grade 10. He had no previous convictions.
[9]
The court a
quo
found that the
accused acted in pursuit of a common purpose in committing the three
counts of murder and robbery in which a firearm
was used. It further
found that he did not plan these offences although he participated
voluntarily in the commission of these
heinous crimes,
“
dit
is onmoontlik om te se wat hy presies gedoen het... Van die
beskuldigde kan gese word dat sy rol minder leidend was as die van
beskuldigde 4 en 5. Hy is nie gesien deur beskuldigde 1, 2 en 3
vanuit die stoor waar hulle was tydens van die voorval nie. ”
[10]
I am mindful of the fact that the court a
quo
considered that the
appellant was young at the time of the commission of these offences
and hence imposed punishment with reference
to section 77(4) read
with 77(3) of the
Child Justice Act, i.e
. punishment ordained for
youthful offenders. However, in my view, the court a
quo
placed strong
emphasis on the interests of the society and the seriousness of the
offence(s) with not as much as mentioning and
giving consideration to
the fact that at that age, despite his conduct in this case, he was
not yet fully developed; he stood a
chance of rehabilitating easily
taking into account the support structure he had at home; the fact
that he realised that he had
done something wrong and that he
deserved to be punished and; the likelihood of being under the
influence of drugs which surely
must have influenced him to forget
his sense of morality.
[11]
Bosielo J. in
S
v Phulwane and Others
2003 (1) SACR 631
(T)
aptly stated:
“
[7]
It is true that where a crime is serious and prevalent, particularly
where it threatens the well-being of society, that courts
should
impose appropriate sentences. However, it remains a trite principle
of sentencing that each case has to be decided on its
own merits. It
is also trite that direct imprisonment is not always the appropriate
sentence. It is a patent and serious irregularity
for a sentencing
officer to ignore the personal circumstances of an accused when
considering sentence. A sentencing officer must
never allow the
seriousness of the offence and the interests of the community to
receive undue weight at the expense of the personal
circumstances of
the accused. This will inevitably lead to a sentence which is
flawed...As the learned Cachalia J correctly remarked
in
SvNkosi
2002
(1) SACR 135
(W) at 143b:
The fine balance that
needs to be struck between society's needs to punish crime while not
overlooking the interests of a juvenile
offender was emphasised by
Botha JA in S v Jansen and Another
1975 (1) SA 425
(A) at 427 in fine
- 428A in the following terms:
'The interests of society
cannot be served by disregarding the interests of the juvenile, for a
mistaken form of punishment might
easily result in a person with a
distorted personality being eventually returned to society'."
[12]
Further at para [8] he stated:
“
In
S
v Z en Vier Andere Sake
1999
(1) SACR 427
(E) at 430f the learned Erasmus J correctly observed as
follows:
‘
Besondere
omstandighede geld by die bestrawwing van jeugdige oortreders, juis
vanwee die feit van hul jonkheid. Die jeug is kenlik
van
kosbarewaarde vir die gemeenskap - soos weerspieel word in art 28 van
die Grondwet. Hulle is ons toekoms. Verbandhoudend hiermee
is die
feit dat jeugdiges se persoonlikhede in die algemeen nog nie ten
voile ontwikkel is nie. Hulle is meer buigsaam as volwassenes
en dus
uiteraard meervatbaar vir bemvloeding, ten goede sowel as ten kwade.
... Dit is derhalwe die dure plig van elke persoon
en instansie
gemoeid met jeugdiges, ook dan die howe, om te poog om jeugdige
oortreders vir die geledere van wetsgehoorsames te
win.’”
[13]
In my view, apart from the negative elements highlighted in the
paragraphs of the presentence report referred to in the judgment
of
the court a
quo,
the presentence
report on the other hand in fact depicts a young man who associated
with older boys; used drugs and acted contrary
to his well
upbringing; one who realised his mistake and accepted that he
deserved to be punished,be it late at the end of the
trial. He, like
many youngsters of his age group
“
is
meer buigsaam as volwassenes en dus uiteraard meer vatbaar vir
beinvloeding, ten goede sowel as ten kwade”.
(S
v Z en Vier Andere
above.)
[14]
The correct approach regarding considerations to be taken into
account before passing sentence was stated by Corbett JA in
Rabie
above at 866A-C where
he emphasised that:
“
A
judicial officer should not approach punishment in a spirit of anger
because, being human, that will make it difficult for him[or
her] to
achieve that delicate balance between the crime, the criminal and the
interests of society which his[or her] task and the
objects of
punishment demand of him[or her]. Nor should he [or her] strive after
severity.”
[15]
Looked against the heinous crimes the appellant committed, 30 years
imprisonment may look appropriate but it is severe for
a youthful
offender with no previous criminal records and lacks mercy and
compassion which
‘
has
nothing in common with maudlin sympathy for the accused’.
The effective
sentence imposed makes no room for any opportunity for the appellant
to rehabilitate and mend his ways. In my view,
without attempting to
usurp the function of the sentencing court a
quo
as warned by the
Appellate Division in
R
v
Dhlumavo
and Another
1948
(2) SA 677
(A), the court
a
quo
approached
the matter in ‘anger’ i.e. considering the gruesome
manner in which the deceased were murdered, did not blend
its
sentence with mercy taking into account the appellant’s
personal circumstances and chances of rehabilitation, resulting
in
its failure to strike that delicate balance between the crime, the
criminal and the interests of society.
[16]
The
Child Justice Act prescribes
, in
section 77(4)
that a child
convicted of these serious crimes should be sentenced to a term of
imprisonment not exceeding 25 years imprisonment.
Surely, this must
mean that the appellant should not and cannot be imprisoned for more
than 25 years. Otherwise, the very objective
of the
Child Justice Act
is
rendered negatory. By imposing 30 years imprisonment the Court a
quo
in fact exceeded the
prescribed sentence in terms of
s77
(4).This cannot be correct.
[17]
The
Child Justice Act read
in conjunction with the Constitution is
aimed at giving children a chance at rehabilitation lest we place
‘adults heads on
young shoulders’ which is a serious
burden which no immature young person in the appellant’s
situation can be made
to bear. This Court has a responsibility to
protect society on the one hand and on the other hand to uphold the
spirit of the Constitution,
the
Child Justice Act and
international
conventions which South Africa has ratified in sentencing children
differently from adults. It is a difficult and
delicate task but one
that has to be done and can only yield a balance an appropriate
sentencing of children. This does not mean
that the interests of
society in these circumstances would not be taken into account. To
the contrary even society expects courts
not only io impose balanced
sentences but to show in their sentences that they have given due and
deliberate consideration to the
fact that children do not need to be
broken but to be built and rehabilitated because at some point they
will have to return to
the very same society but rehabilitated and
better people.
[18]
The sentiments of an old decision of
S
v J
1975
(3) SA 146
(O) still resonate well today whereat Steyn J stated:
“
Die
Hof is nie 'n pynbank nie . Dit is nie 'n instrument van pyniging
waarop 'n beskuldigde gebreek moet word omdat hy 'n weersinwekkende
misdaad gepleeg het nie . Die Hof is die instrument waardeur die
samelewing handel beide om homself te beveilig sowel as om die
beskuldigde, indien moontlik, deur middel van straf te red as mens en
te verbeter wanneer hy homself so gedra het dat hy die samelewing
onwettiglik leed en skade aangedoen het.”
(See
also2) SACR 477 (CC).)
[19]
The sentence imposed, effective 30 years imprisonment, does not
properly strike the balance between society's need for an effective
form of custodial punishment and the need for the child to be
imprisoned for the 'shortest appropriate period of time'. The child's
'best interests' were not taken into account. The sentence left the
child with no prospect or hope that he may one day be released
to
become a productive member of society.
[20]
Having come to the conclusion I have come to above, I am of the view
that the appeal should succeed. The sentence imposed be
set aside and
substituted with that of an effective term of 20 (twenty) years
imprisonment.
B.C.
MOCUMIE, J
On
behalf of appellant: L. Smit
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: J.P. du P. Botha
Instructed
by:
Director
Public Prosecutions BLOEMFONTEIN
BCM/sp