S v Ndlovu (380/03) [2006] ZASCA 130; 2007 (1) SACR 535 (SCA) (30 November 2006)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2006
>>
[2006] ZASCA 130
|

|

S v Ndlovu (380/03) [2006] ZASCA 130; 2007 (1) SACR 535 (SCA) (30 November 2006)

Links to summary

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
Case no: 380/03
In
the matter between:
THABANG
NDLOVU
Appellant
and
THE
STATE
Respondent
________________________________________________________________
Coram
:
Navsa
JA, Malan et Cachalia AJJA
Date of hearing:
20 November 2006
Date of delivery:
30 November 2006
Summary
: Failure
to consider factors that cumulatively constitute substantial and
compelling circumstances ─ sentence overturned and substituted.
Neutral citation:
This judgment may be referred to as
Ndlovu v The State
[2006] SCA 158 (RSA).
_______________________________________________________
JUDGMENT
_______________________________________________________
NAVSA JA
NAVSA JA:
[1] The appellant faced three charges
in the Regional court, Vosloorus, namely, robbery with aggravating
circumstances, unlawful possession
of a firearm and unlawful
possession of ammunition. The regional magistrate convicted him on
the first two counts and acquitted him
on the last. The appellant was
sentenced to 15 years’ imprisonment on the first count (the
prescribed minimum sentence for armed
robbery in terms of s 51 of Act
105 of 1997) and two years’ imprisonment on the second, with the
latter sentence being ordered
to run concurrently with the first.
[2] The appellant appealed against the
convictions and the related sentences to the Johannesburg High Court.
That court (Joffe J,
Van der Walt AJ concurring) upheld his appeal
against his conviction on the second count and dismissed his appeal
against the conviction
and sentence in relation to the first.
[3] This appeal, with the leave of the
court below, was noted both against the appellant’s conviction on
the robbery count and the
related sentence of 15 years’
imprisonment. Before us the appellant’s legal representative
rightly restricted the appeal to one
against sentence only,
submitting that the state had failed to prove that the firearm used
by the appellant in the robbery was real,
rather than fake and that
for that reason the appellant was entitled to be sentenced less
harshly. In addition it was submitted that
there were substantial and
compelling circumstances justifying the imposition of a sentence less
than the statutorily prescribed
minimum of 15 years’ imprisonment.
[4] It was not contested that on
12 February 2000 a robbery had occurred at the business
premises of the complainant, Mr
Lawrence Dube, an optometrist, and
that optical frames and sunglasses to the value of approximately
R22 000.00 were removed
after two women who were in charge at
the premises at the time had been forced at gunpoint to part with
them.
[5] The appellant’s version of
events was that he happened to be at the premises coincidentally at
the time of the robbery. He testified
that he had been making
enquiries from one of the women in attendance at the business about
how he could acquire a pair of sunglasses
when someone who was armed
appeared and ordered him to gather the frames and sunglasses from
behind the counter whilst at the same
time forcing the two women to
lie down behind the counter. According to the appellant he did as he
was ordered and placed the items
in question in a bag and when the
armed robber was forced to flee and was being pursued he (the
appellant) ran with the bag in his
hand. When the police and others
arrived the appellant was found with the bag with some of the optical
frames and sunglasses still
therein. The armed robber had disappeared
from the scene.
[6] Not surprisingly, the appellant’s
version of events was rejected by the magistrate and the court below.
Both women in attendance
at the optometrist’s premises testified
that the appellant and a co-perpetrator had each wielded a firearm
and used them to commit
the robbery. It appears from their evidence
that the appellant was at the forefront of the robbery. The court
below nevertheless
saw fit to uphold the appellant’s conviction on
the second count. The magistrate’s findings in this regard and the
court below’s
reasoning are set out hereafter.
[7] The magistrate had rejected the
evidence of a policeman, that the appellant had confessed to him that
an unloaded .38 firearm
found in the vicinity belonged to the
appellant and had been used in the robbery ─ the magistrate held
the confession to be inadmissible.
The magistrate nevertheless
concluded that the firearm found by the policeman could only have
been the property of the appellant.
[8] The court below considered the
submissions on behalf of the appellant that the two women who had
been robbed, had in their testimony,
contradicted
each other, and held as follows:
‘
These contradictions
are not material and do not result in any real doubt being created on
the state’s case. On the contrary, they
tend to lend an element of
credibility to it.
In all the circumstances
no fault can be found with the magistrate’s finding that the
appellant’s evidence was not reasonably
possibly true and that the
state proved his guilt beyond reasonable doubt.’
[9] However, the court below went on
to state the following concerning the evidence on the second count:
‘
As far as the charge
of possession of an unlicensed firearm is concerned both [women]
testified that both robbers were in possession
of a firearm. Their
evidence is however not adequate to secure a conviction on that
charge. Their evidence does not go to establish
that, that which was
in possession of the appellant was in fact a working firearm in
particular a .38 Special revolver.’
[10] Whilst it is true that the
magistrate wrongly held that the .38 revolver found by the policeman
had been the firearm used by
the appellant in the robbery ─ he
ought to have excluded the confession in its entirety ─ it does not
follow that the magistrate’s
conclusion that the appellant had been
in possession of a firearm and had used it in committing the robbery
can be faulted. Accepting
the evidence of the two women and
considering the absence of evidence by the appellant that the firearm
used by him was fake or not
one contemplated in the Arms and
Ammunition Act 75 of 1969 the magistrate’s conclusions in respect
of the appellant’s guilt on
the first and second count cannot be
faulted. The court below’s conclusion in respect of the second
count is bewildering and the
appellant can consider himself fortunate
that his appeal in the court below against his conviction on the
second count was successful.
[11] It is necessary to consider the
sentence imposed by the magistrate in respect of the first count.
[12]
Section 51(2)
(a)(i)
of the
Criminal Law Amendment Act 105 of 1997
prescribes a minimum sentence
of 15 years’ imprisonment for robbery with aggravating
circumstances.
Section 51(3)
provides that a lesser sentence may be
imposed if the court is satisfied that substantial and compelling
circumstances exist. In
the present case the magistrate considered
that the appellant was only 20 years old. He was adamant, however,
that the levels of
crime in this country were such as to justify
imposing the prescribed minimum sentence of 15 years’ imprisonment.
The court found
that there were no substantial and compelling
circumstances to warrant a lesser sentence.
[13] The appellant’s youth is
certainly a factor the magistrate ought to have considered more
seriously. Whilst one appreciates
the magistrate’s frustration at
the current levels of crime he did not properly take into account
that in the present case the
degree of violence involved in the
robbery was limited. Furthermore, a significant number of the
articles removed from the optometrist
was recovered. The robbery was
executed in a clumsy and inept manner. The appellant spent
approximately four months in custody pending
the finalisation of the
trial. These are factors not given due weight by the magistrate or by
the court below. In my view, and considering
the dicta in this
court’s judgment in
S v Malgas
2001 (2) SA 1222
(SCA) (at
1230E-G and 1231A-D) these factors cumulatively constitute
substantial and compelling circumstances. We must guard against
imposing uniform sentences that do not distinguish between the facts
of cases and the personal circumstances of offenders.
[14] In the light of what is stated in
the preceding paragraph we are entitled to intervene and to
substitute the sentence imposed
by the magistrate and confirmed by
the court below with one that is appropriate. In my view having
regard to the totality of the
circumstances, a sentence of ten years’
imprisonment is appropriate.
[15] The following order is made:
‘
1. The appeal by the
appellant succeeds to the following extent: the sentence of 15 years’
imprisonment imposed upon him is set
aside and there is substituted
for it a sentence of imprisonment for ten years. Insofar as it may
be necessary to do so, the sentence
so imposed is antedated to 5
June 2000, being the date upon which the sentence of 15 years’
imprisonment was imposed.’
_________________
M S NAVSA
JUDGE OF APPEAL
CONCUR:
MALAN AJA
CACHALIA AJA