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[2013] ZAKZPHC 63
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Madlala v S (AR 345/2011) [2013] ZAKZPHC 63; 2014 (1) SACR 396 (KZP) (19 November 2013)
1
REPORTABLE
IN THE HIGH COURTOF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO:AR 345/2011
In the matter between:
SIBUSISO MADLALA
........................................................................
Appellant
and
THE STATE
......................................................................................
Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
GORVEN J
On 21 December 2004 the appellant entered the yard
ofthe complainant’s homestead. He was carrying an AK47
automatic firearm
containing 14 live rounds in a blue bag. He was
accompanied by another man. In order to gain access to the yard,
they climbed
over a fence.The complainant, his mother and a small
child were in the yard. When the mother questioned them and
requested that
they leave by the gate, the other man climbed back
over the fence but the appellant remained. The complainant had an
altercation
with the appellant during which time it became clear
that the bag contained a firearm. The appellant threatened to shoot
the
complainant.A shot was fired from inside the bag which narrowly
missed the child playing in the yard. The complainant, a policeman,
managed to wrestle the firearm from the appellant and he was
arrested by police in the area who were busy investigating an armed
robbery at the local Spar supermarket.
As a result, the appellant was charged with three
counts in the Regional Court, Pietermaritzburg. The first was of
attempted murder
with an alternative charge of contravening
s 120(3)(b) read with other sections of the Firearms Control
Act 60 of 2000 (the
Act) by unlawfully discharging a firearm or
handling it recklessly. The second and third counts were of
contravening s 4
and s 90 respectively read with other
sections of the Act by possessing an automatic firearm and 13 live
rounds of ammunition
for it. On 2 December 2010, he was found guilty
of the alternative to count one and of counts two and three. On 6
December 2010,
he was sentenced to 5 years’ imprisonment on
count one, 15 years’ imprisonment on count two and 2 years’
imprisonment
on count three. Two years of the sentence on count one
and the whole of the sentence on count three were ordered to run
concurrently
with that imposed on count two, giving an effective
term of imprisonment of 18 years.
The appellant was refused leave to appeal against his
convictions by the trial court but granted leave to appeal against
his sentences.
He thereafter petitioned the Judge President of this
division for leave to appeal against his convictions and this
petition was
refused on 23 November 2011. This appeal is thus
limited to his sentences.
On 25 April 2012 the attorneys for the appellant
delivered a notice in terms of which he withdrew his appeal against
sentence.
Despite this, and despite the appeal set down on17 May
2012 being removed from the roll, the matter has been set down for
hearing.
There is no substantive application for the reinstatement
of the appeal or an affidavit or other evidence which shows cause
for
the reinstatement.
However, in the interests of reaching finality in a
long drawn out set of proceedings, it is as well to deal with the
merits of
the appeal. It would not serve the interests of justice to
further delay matters on procedural grounds.
It was brought to the attention of the appellant that,
in respect of count two, the State intended to rely on the
provisions of
s 51 read with Schedule 2 to the Criminal Law
Amendment Act 105 of 1997 (the CLAA). This was mentioned in the
charge sheet
and the learned magistrate quite properly drew his
attention to the fact that this requires the imposition of a
sentence of not
less than 15 years’ imprisonment, unless
substantial and compelling circumstances warrant a downward
deviation.
1
It is trite that an appeal court is entitled to
interfere in sentence in limited circumstances. A material
misdirection serves
to vitiate the proper exercise of a discretion
and allows an appeal court to substitute its own sentence. Where
there is no misdirection,an
appeal court may interfere only if the
disparity between the sentence of the trial court and that which the
appeal court would
have imposed is so marked that it can be
described as startling, shocking or disturbingly inappropriate.
2
The learned magistrate, in a short judgment, considered
the triad of factors bearing on sentence set out in
S
v Zinn
.
3
He
concluded that he could not find substantial and compelling
circumstances and was thus obliged to impose 15 years’
imprisonment in respect of count two. The learned magistrate took
into account the personal circumstances of the appellant. He
was 35
years old at the time of sentence, had completed Grade 11 at school,
had one child aged 3 years, had never been married
and was
unemployed, having previously been employed as a driver for Junior
Taxis. He also had previous convictions for robbery,
a contravention
of s 2 of the Arms and Ammunition Act 75 of 1969 (the old Act),
which is the predecessor to the Act, by
way of unlawful possession
of a firearm and a contravention of the provisions of the old
Actconcerning possession of ammunition
without a licence to possess
it. The conviction on these three counts arose from a single
incident and he was sentenced on 20
March 1998 to an effective term
of imprisonment of 5 years. This wasless than 7 years prior to
the date on which the present
offences were committed. Apart from
the personal circumstances of the appellant, the learned magistrate
took into account that
the appellant had discharged the firearm in
the presence of a small child. He also took into account that
possession of an automatic
firearm is a serious offence.
The thrust of the appellant’s submissions is that
the learned magistrate misdirected himself in believing that the
appellant
had a previous conviction for possession of an automatic
firearm. The learned magistrate, recording that the prosecutrix had
argued that the appellant had been convicted of possession of an
automatic firearm, went on to say, ‘Mr Hassim however argued
that it would be unfair for me to exceed that provision of fifteen
years, something about which I am inclined to agree. In any
event, I
can find no provision that would entitle me to exceed that provision
of fifteen years in the Act for a repeated offence.’
It seems
that the learned magistrate did not regard the previous conviction
as one of possession of an automatic firearm since
there is a
pertinent provision in the Act which provides that a second offence
attracts a minimum sentence of 20 years’
imprisonment.Under
the old Act, possession of an automatic firearm would have led to a
conviction for contravening s 32
rather than s 2. The SAP
69 reflects a conviction for contravening s 2. The learned
magistrate did not apply the provisions
of the CLAAfor a previous
conviction for possession of an automatic firearm. It therefore does
not appear that he did misdirect
himself in the regard relied upon.
Even ifit can be said that he believed the previous conviction to
have been for possession
of an automatic firearm, there is no
indication that he took that into account in arriving at his
sentence on count two. Any
such misdirection is accordingly not a
material one entitling an appeal court to interfere with the
sentence.
The further submission was that the circumstances
surrounding the incident were not such as to warrant the imposition
of the minimum
sentence of 15 years’ imprisonment. In this
regard the appellant’s counsel relied on a dictum in
S
v Chowe
4
where it was said that ‘[t]he imposition of
minimum sentence, which is by its very nature a very long
imprisonment, must
be reserved for callous and heinous offences’.
There are serious difficulties with this
dictum
.
In the first place, it fundamentally challenges the entire rationale
of the CLAA. It is the legislature which has determined
that the
offence in question meets the criteria required for a prescribed
sentence. It has also determined the level of sentence.
Concerning
the CLAA, the question was asked in what respect was it‘no
longer to be business as usual’.
5
The answer given is illuminating:
‘
Instead, it was required to approach that
question conscious of the fact that the legislature has ordained…the
particular
prescribed period of imprisonment as the sentence which
should
ordinarily
be imposed… In short, the Legislature aimed at ensuring a
severe, standardised, and consistent response from the courts
to the
commission of such crimes unless there were, and could be seen to be,
truly convincing reasons for a different response…
Moreover, those circumstances had to be substantial and compelling.
Whatever nuances of meaning may lurk in those words, their
central
thrust seems obvious. The specified sentences were not to be departed
from lightly and for flimsy reasons which could not
withstand
scrutiny. Speculative hypotheses favourable to the offender, maudlin
sympathy, aversion to imprisoning first offenders,
personal doubts as
to the efficacy of the policy implicit inthe amending legislation,
and like considerations were equally obviously
not intended to
qualify as substantial and compelling circumstances.’
6
The
dictum
in
Chowe
relied upon by the
appellant is unfortunately not consonant with the approach set out
in
Malgas
. It must be borne in mind that the prescribed
sentence of a minimum 15 years’ imprisonment in that
matter related
to a count of robbery with aggravating circumstances.
Not only the
dictum
, but the entire rationale for finding
substantial and compelling circumstances in
Chowe
does not
standscrutiny.The parts of the paragraphs dealing with substantial
and compelling circumstances read as follows:
‘
[26]
In casu
,
the accused was 26 years old, which made him a good prospect for
rehabilitation. The value of the cellphone stolen was R600. The
complainant was not harmed, save to have been pointed at with the
firearm. All these factors taken together, in my view, require
departure from the imposition of the minimum sentence. Put
differently, the combination of these factors amounts to the presence
of substantial and compelling circumstances. The imposition of
minimum sentence, which is by its very nature a very long
imprisonment, must be reserved for callous and heinous offences.
[27] In my view, the magistrate, in finding that there were no
substantial and compelling circumstances
in casu
, failed to
exercise his mind judicially and has therefore misdirected himself,
thus warranting interferenceby this court.’
7
What, one wonders, makes the fact that the accused was
26 years old lead to the conclusion that he was ‘a good
prospect for
rehabilitation’? Is there some inherent quality in
being 26 years old which facilitates rehabilitation? Two other
factors
were taken with this to constitute substantial and compelling
circumstances; the value of the cellphone and that the only harm the
complainant suffered was to have had a firearm pointed at him. This
is precisely why a court is ‘required to spell out and
enter on
the record the circumstances which it considered justified a refusal
to impose the specified sentence.’
8
This
court is not bound by the approach in
Chowe
and it must be rejected as utterly at odds with that in
Malgas
, by which this
court is bound.
The appellant’s counsel then urged us to ‘place
things in perspective’ by having regard to a number of
previous
judgments. The first was the matter of
S
v Nkosi& another
9
where the court
a quo
did
not impose the minimum period prescribed. It imposed a period of 5
years’ imprisonment on a count of possession of two
AK47
firearms and made some of the sentences run concurrently with the 15
year sentence for attempted robbery, giving a total
of 22 years
imprisonment for all the counts. This case is distinguishable on a
number of grounds. First, it involved an appeal
against the
imposition of the minimum prescribed sentence on the count of
attempted robbery with aggravating circumstances. It
did not involve
any consideration of the sentence of 5 years’
imprisonment on the counts of possession of two AK47
firearms.
Secondly, there was no cross-appeal on sentence and the appeal court
did not consider or even mention any issues relating
to the counts
of possession. Thirdly, the conviction and, therefore sentence, of
the first appellant was set aside and, during
argument, counsel for
the second appellant conceded the correctness of the sentences
imposed. The matter therefore did not require
any further
consideration.The appeal court simply supported the imposition of 15
years’ imprisonment even though the second
appellant was
convicted of attempted robbery rather than robbery itself. This case
does not provide any useful perspective on
the present matter.
The next case referred to was
S
v Shabalala
.
10
The following
dictum
of Theron J was relied on:
‘
In my view, imposing a sentence of 15
years’ imprisonment on a 44-year-old married first offender,
for possession of an AK47
which was not used in the commission of any
offence, coupled with an explanation that the weapon was kept for his
brother, induces
a sense of shock.’
11
Once again, however, the matter is distinguishable on a
number of bases. In the first place, the provisions of the CLAA did
not
apply in this matter because the appellant was not made aware, at
the appropriate time,that the State intended to rely on them.
This
misdirection gave the court a basis for interfering on sentence. It
is clear that, if the provisions are not timeously drawn
to the
attention of an accused person, they cannot be used as a basis for
arriving at sentence.
12
Secondly, the appellant in the present matter was not a
first offender. Thirdly, the firearm was used in the commission of an
offence
in the present matter. Fourthly, the possession of the
appellant was not passive, as in the case under discussion but was
active.
The appellant was not keeping the firearm for somebody else
but had taken it with him into the property of the complainant. The
case is therefore distinguishable on all the factors mentioned by the
learned judge, even if no regard is had to the fact that
the
provisions of the CLAAdid not apply in that case but do apply in the
present one.
The final case relied upon by the appellant in argument
was that of
S v Sibisi
.
13
The appeal court in that matter reduced the sentence
for possession of an AK47 firearm from a term of 5 years
imprisonment, of
which 2 years were suspended on certain conditions
to one where 3 years were suspended. Once again, however, there are
material
distinguishing features. The sentence was not one imposed
under the CLAA. Also, the appellant was holding the firearm for his
brother and the appeal court found that the appellant’s life
was under threat by his brother and that the appellant was
therefore
‘compelled to accede to his brother’s request’.
14
In addition, the magistrate had drawn unwarranted
inferences from the previous convictions of the appellant in that
matter, all
of which were of an extremely petty nature. This was
held to give rise to a misdirection which led to the court
interfering on
appeal.
None of the cases relied upon by the appellant,
accordingly, provides much guidance for the imposition of a sentence
in the present
matter. They do not assist in placing this matter ‘in
perspective’ as was submitted by the appellant’s
counsel.
We were not referred to any other cases relevant to this
matter and I have been unable to find any. In
Malgas
, the
court indicated that all factors traditionally taken into account in
sentencing continue to play a role. The learned magistrate
did so.
The overall approach was summarised in
Malgas
as follows.
Once account is taken of the singling out of a particular offence by
the legislature for severe punishment, paragraph
I of that summary
concludes as follows:
‘
If the sentencing court on consideration of
the circumstances of the particular case is satisfied that they
render the prescribed
sentence unjust in that it would be
disproportionate to the crime, the criminal and the needs of society,
so that an injustice
would be done by imposing that sentence, it is
entitled to impose a lesser sentence.’
15
In the present matter, the learned magistrate, having
considered the traditional triad of factors, found that there were
no substantial
and compelling circumstances allowing for a downward
deviation from the minimum term of the prescribed sentence. Counsel
for
the appellant was unable to advance any argument as to which
substantial and compelling circumstances were overlooked by the
learned magistrate in arriving at that finding. She contented
herself with reference to the cases referred to above. Even though
the learned magistrate did not reason the matter out fully, I can
find no basis on which to criticise this finding. The appellant
was
in active possession of the firearm, having taken it into the
property of the complainant concealed in a bag. The firearm
was used
in the commission of an offence, namely count one. The appellant had
a previous conviction for possession of a firearm,
albeit not a
semi-automatic or automatic firearm. There was no evidence as to the
date on which the appellant was released from
imprisonment in
respect of the previous convictions, but the date on which he was
sentenced was less than 7 years prior to the
commission of this
offence. In other words, the appellant, within a few years of having
been released from custody, acquired
an automatic firearm (which is
not capable of being owned lawfully), carried it to the property of
the complainant and used it
in the commission of an offence. He
showed no remorse for his conduct, pleaded not guilty and rendered
no explanation as to how
or why he came into possession of the
firearm. He was not employed at the time of the commission of the
offence and there is
no indication that there are any prospects for
his rehabilitation. His recidivism is to the opposite effect. As was
said in
Sibisi
:
16
‘
The serious view taken by the Legislature
of this type of offence is amply borne out by the all too frequent
reports of the senseless
carnage and destruction wrought by this
notorious murder weapon in otherwise peaceful and defenceless
communities. It would be
quite unrealistic of this or any other court
not to take judicial cognisance of this state of affairs…’.
A further submission made on behalf of the appellant
was that the sentence on count one was the maximum permissible for
that offence
and that this was unduly harsh to the extent that it
warranted interference on appeal. I disagree. The appellant, when
confronted
by the complainant, threatened to shoot him. He then
loosed off a shot from inside the bag which narrowly missed a child
playing
in the yard. He is indeed fortunate that the shot did not
strike the complainant, the child or the mother of the complainant.
All in all, the sentence appears to me to be entirely appropriate.
The final submission made on behalf of the appellant
was that the whole of the sentence on count one ought to have been
made to
run concurrently with that on count two rather than only 2
years thereof. When pressed in argument, the appellant’s
counsel
one was unable to point to any misdirection by the learned
magistrate. She conceded that he considered the cumulative effect of
the sentences and applied his mind to that portion which would be
most appropriately made to run concurrently. I cannot fault
the
approach of the learned magistrate. It is not as if counts one and
two were committed during the same series of events. The
possession
had arisen some time prior to the events giving rise to the
appellant’s conviction on count one. It was an entirely
separate crime, unlike that of count three which was quite properly
made to run concurrently in its entirety.
I can accordingly find no basis on which to interfere
in the sentences passed by the learned magistrate. There were no
material
misdirections nor were any of the sentences or the
cumulative effect so startlingly disproportionate.
In the result, the appeal against the sentences is
dismissed.
___________________________
GORVEN J
I agree:
___________________________
POYO-DLWATI AJ
DATE OF HEARING: 12November 2013
DATE OF JUDGMENT: 19November 2013
FOR THE APPELLANTS: D Barnardinstructed by The Legal Aid
Board.
FOR THE RESPONDENT: V Alamchand instructed by The
Director of Public Prosecutions for KwaZulu-Natal.
1
The
relevant part of s 51(3)(a) of the CLA Act provides as follows: ‘If
any court referred to in subsection (1) or (2) is
satisfied that
substantial and compelling circumstances exist which justify the
imposition of a lesser sentence than the sentence
prescribed in
those subsections, it shall enter those circumstances on the record
of the proceedings and must thereupon impose
such lesser sentence…’.
2
S
v Malgas
2001 (1) SACR 469
(SCA) para 12.
3
1969
(2) SA 537 (A).
4
2010
(1) SACR 141
(GNP) para 26.
5
Malgas
para
8.
6
Malgas
paras
8&9.
7
Choweparas
26 & 27.
8
Malgas
para
9.
9
2011
(2) SACR 482
(SCA).
10
2006
(1) SACR 328
(N).
11
At
331
f-g.
12
S
v Langa
2010 (2) SACR 289
(KZP)paras 27 & 35.
13
1998
(1) SACR 248
(SCA).
14
At
252
e-f
.
15
Malgas
para
25I.
16
At
251
g-h
.