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[2012] ZAKZPHC 6
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Mchunu and Another v S (AR24/11) [2012] ZAKZPHC 6 (10 February 2012)
IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
APPEAL NO: AR24/11
In the matter between:
VAMILE MICHAEL
MCHUNU
First Appellant
CECIL
MAGIDA
Second Appellant
and
THE
STATE
The State
J U D G M E N T
Delivered on 10 February 2012
PATEL JP
INTRODUCTION
[1] The
appellants, Mr Vamile Michael Mchunu (First Appellant) and Mr Cecil
Magida (Second Appellant) were
convicted on two counts of murder and
one count of attempted robbery with aggravating circumstances as
defined in Section 1 (1)
(b) of Act 51 of 1977. Mchunu was indicted
as Accused 2 and Magida was indicted as Accused 4 in the Court
a
quo
. I shall refer to the appellants as Accused 2 and Accused 4,
respectively. Accused 2 was sentenced to 20 years’ imprisonment
on Count 1, 20 years’ imprisonment on Count 2 and 15 years’
imprisonment on Count 3 whilst Accused 4 was also similarly
sentenced
on the two counts of murder but was sentenced to 10 years’
imprisonment on the third count. Accordingly, Accused
2 was sentenced
to an effective sentence of 55 years’ imprisonment and Accused
4 to 35 years’ imprisonment. The murder
and robbery took place
on 08
August 1997 and judgment and sentence was finalized
on 25 May 1999. An application for leave to appeal against sentence
was refused
by the trial court. This appeal serves before us as a
result of the grant of a petition by the Supreme Court of Appeal
(SCA) and
referred back to the Full Court of the KwaZulu-Natal High
Court (Pietermaritzburg) for a reconsideration of the sentence.
[2] It cannot
be gainsaid that both the accused committed what can only be
described as heinous crimes.
The murder of the deceased occurred in
the course of a well planned robbery. Both the accused were found to
be unrepentant liars
by the trial court, a finding with which I am in
agreement. The learned judge
a quo
was not wrong in describing
the offences for which both accused were convicted as being heinous
in the extreme when he sentenced
them. The only question which needs
to be asked was whether despite the heinousness of the crimes, the
sentences were manifestly
just. This question must today be answered
in the light of the extant jurisprudence at the time of the hearing
of this appeal.
The learned judge did not have the benefit of this
jurisprudence when he sentenced both the accused.
[3]
The
Criminal Law Amendment Act 105 of 1997
re-introduced
comprehensive minimum sentencing in South Africa. The Constitutional
Court confirmed, as late as December 2005, that
the minimum
sentencing provisions were not retrospective.
1
They apply only to crimes committed on or after 1 May 1998.
2
Section
51
introduced minimum
sentences for certain offences, unless there are ‘substantial
and compelling circumstances’ for
the imposition of a lesser
sentence. To that extent the Court a quo did not misdirect itself
when it did not apply the provisions
of the Act which although
promulgated had not come into force.
[4] It is
trite law that the issue of sentencing is one which vests a
discretion in the trial court. The
trial court considers what a fair
and appropriate sentence should be. The purpose behind a sentence was
set out in
S v Scott-Crossley
2008 (1) SACR 223
(SCA) at para 35:
‘
Plainly any sentence
imposed must have deterrent and retributive force. But of course one
must not sacrifice an accused person on
the altar of deterrence.
Whilst deterrence and retribution are legitimate elements of
punishments, they are not the only ones,
or for that matter, even the
over-riding ones.’
The judgment continues:
‘
. . . [i]t is true that
it is in the interests of justice that crime should be punished.
However, punishment that is excessive serves
neither the interests of
justice nor those of society.’
[5] The
circumstances entitling a court of appeal to interfere in a sentence
imposed by a trial court were
revisited in
S v Malgas
2001 (1) SACR 469 (SCA) at para 12, where Marais JA
held:
‘
A Court exercising
appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question
of sentence as
if it were the trial court and then substitute the sentence arrived
at by it simply because it prefers it. To do
so would be to usurp the
sentencing discretion of the trial court. . . . However,
even in the absence of material misdirection,
an appellate court may
yet be justified in interfering with the sentence imposed by the
trial court. It may do so when the disparity
between the sentence of
the trial court and the sentence which the appellate court would have
imposed had it been the trial court
is so marked that it can properly
be described as “shocking”, “startling” or
“disturbingly inappropriate”.’
[6] With
regard to life imprisonment, the Supreme Court of Appeal in
S v
Bull and Another; S v Chavulla and Others
2002 (1) SA 535
(SCA)
at para 23 held that ‘it is the possibility of parole which
saves a sentence of life imprisonment from being cruel,
inhuman and
degrading punishment’.
[7] In
terms of
s
276B
of the
Criminal Procedure Act, 51 of 1977
the court has the power, when
sentencing an accused, to direct that the accused not qualify for
parole for a certain period. The
non-parole period may not exceed two
thirds of the period of imprisonment imposed or 25 years, whichever
period is shorter
(s 276B(1)(
b
)).
If the accused has been sentenced on two or more counts, the
effective period of imprisonment is used for this calculation.
In the
case of a sentence imposed under the minimum-sentence legislation the
prisoner may not be placed on parole until he or she
has served at
least four fifths of the term of imprisonment imposed or 25 years,
whichever period is the shorter; however, the
court may, when
imposing imprisonment, order that the prisoner be considered for
placement on parole after he or she has served
two thirds of such
term (
s73(6)(b)(v)
of the Correctional Services Act).
3
[8] The
parole of a prisoner, who was sentenced before the coming into
operation of Act
111
of 1998
is regulated by the
provisions that applied when he or she was sentenced. Therefore the
Correctional Services Act 8 of 1959 would
apply.
[9] In
S v
Makena
2011 (2) SACR 294
(GNP) the appellant and his co-accused
were convicted of murder, robbery and housebreaking with intent to
steal and theft.
The offences giving rise to the trial against the
appellant occurred in 1996, i.e. prior to the enactment of Act 105 of
1997
. The cumulative effect of the sentences imposed was 50
years’ imprisonment with the trial court further recommending
to Correctional
Services that the appellant only be considered for
parole after having served 30 years of his sentence. On appeal, the
court held
that the recommendation that the accused should be
considered for parole only after serving a specified part of his
sentence should
have been avoided and left uninfluenced in the hands
of the appropriate department.
[10] It was further
held that, based on the sentences emanating from the Supreme Court of
Appeal for murder, it
could be said that effective sentences
exceeding 25 years’ imprisonment were not confirmed lightly.
The basis for this may
have been the emphasis on reformation and
rehabilitation, based,
inter alia
, on the constitutional
precepts that punishment should not be cruel or be deemed to be such.
In making this statement, the court
had full knowledge and
appreciation of the gravity and devastating effects that the loss of
the victim's life had inevitably inflicted
on his family, society and
the country. The need for having regard to a convicted person's
personal circumstances served precisely
to balance the principles
that must be considered when sentencing, namely that “general
punishment should fit the criminal
as well as the crime, be fair to
society and be blended with a measure of mercy according to the
circumstances’. The
appeal against sentence succeeded and
the effective sentence was reduced to 25 years’ imprisonment.
[11] In
S v
Siluale &
'
n ander
1999 (2) SACR 102
(SCA) the court held that if the circumstances of a case require that
an offender should receive
a sentence which removes him permanently
from society, life imprisonment is the only appropriate sentence. A
sentence of imprisonment
which is so unusually long that it denies
the offender all possible hope of ever being released, is alien to a
civilised legal
system. And thus exceptionally long terms of
imprisonment, which are calculated to exceed the accused’s life
expectancy (in
casu 155 years, 115 years and 105 years), were not
appropriate.
[12] In
S v
Nkosi & others
2003 (1) SACR 91
(SCA)
the crimes were
committed between the years 1995-1996
. Judgment was given in
2002. The trial Court had sentenced the appellants to terms of
imprisonment of 120 years, 65 years, 65 years
and 45 years
respectively. At para 9 the SCA stated:
‘
Thus, under the law as
it presently stands, when what one may call a Methuselah sentence is
imposed (ie a sentence in respect of
which the prisoner would require
something approximating to the longevity of Methuselah if it is to be
served in full) the prisoner
will have no chance of being released on
the expiry of the sentence and also no chance of being released on
parole after serving
one half of the sentence. Such a sentence will
amount to cruel, inhuman and degrading punishment which is proscribed
by s 12(1)(e)
of the Constitution of the Republic of South Africa Act
108 of 1996.’
[13] The SCA held
that the sentences imposed by the trial Judge had been calculated to
circumvent the relevant
parole provisions. In the circumstances it
was clear that the sentences imposed could not stand. The sentence
was substituted with
one of life imprisonment.
[14]
S v
Mhlakaza & another
1997 (1) SACR 515 (SCA)
dealt with an attack on a police officer involving a machine gun (and
the shooting and wounding
of members of the public). The two
appellants who had been convicted on charges of murder, attempted
robbery, possession of firearms,
and possession of a machine gun were
effectively sentenced to 47 and 38 years' imprisonment, respectively.
The court considered
whether, in the circumstances of the case, the
cumulative effect of the sentences imposed was so inappropriate that
the court was
permitted to substitute its discretion for that of the
trial court.
[15] The Court held
that sentences of imprisonment ought to be realistic and should not
be open to the interpretation
that they have been designed for public
consumption or for controlling the Executive. But whether or not
sentences would fall within
the bounds of what would be considered
proper or appropriate would inevitably depend on the facts of each
case. Both the appellants
were sentenced to an effective 38 years’
imprisonment.
[16]
S v Sidyno
2001 (2) SACR 613
(T) the accused was convicted of seven counts of
murder. The Court considered the question whether it was desirable
for a Court
imposing a sentence such as life imprisonment to make a
recommendation that parole ought not to be considered before the
lapse
of a certain period longer than 25 years and whether this made
any practical sense and had any effect. The Court held that it had
the right to make such recommendation but that this should however
only be done occasionally and only in exceptional cases,
inter
alia
because of the principle of the separation of powers.
[17] The Court held
that life imprisonment was appropriate and that it was a case where a
recommendation was justified
in the light of the number and
seriousness of the murders, the accused’s strong image of
cold-bloodedness, his lying and
the total absence of any remorse and
his unlikely rehabilitation. The accused was sentenced to life
imprisonment on each of the
counts and it was recommended that he not
be released before he had served 40 years imprisonment.
[18] It is a trite
proposition that the rod of punishment is to be applied
differentially and according to the
law. Yet one is painfully aware
of how difficult it is to achieve proportionality in practice. There
are often wide variations
in prison sentences handed out for murder.
Perhaps it is this thinking which led the Legislature to make all
sentences imposed
together with a life sentence run concurrently.
If I were therefore to impose life sentence on each count of murder
the sentence imposed on Count 3, that of attempted robbery, will run
concurrently with the sentence of life imprisonment.
[19] On the face of
it and having regard to the
Makena
and
Siluale
judgments it would appear that a sentence of 55 years is ‘manifestly
unjust’. This takes into account the fact that
the
minimum-sentence legislation was in operation when the learned judge
sentenced the accused to 55 years’ imprisonment.
Even though
the Act does not apply retrospectively the learned judge ought to
have taken some guidance from the Act before sentencing
the accused.
[20] I am of the
view that considering the jurisprudence adverted to above, the
interests of both the accused
and society will be best served if I
impose life sentences on each count of murder and direct that both
the accused are not to
be considered for parole until they have
served a period of 20 years’ imprisonment. As far as the
sentence imposed on the
third count is concerned I am of the view
that the learned judge’s reasoning for a lighter sentence
imposed on Accused 4
on the third count is justified and I do not
propose interfering with that sentence.
[21] Accordingly I
make the following order in respect of both appellants :
(a) The
appeal against the sentences imposed on the two counts of murder is
upheld and those sentences
are set aside.
(b) Both the
appellants are sentenced to life imprisonment on each of counts 1 and
2.
(c) The
appeal against the sentence on count three is dismissed and that
sentence is confirmed.
(c) The
sentences are to run from 25 May 1999.
(d) I further
direct that both the appellants serve a minimum of 20 years’
imprisonment before they
are considered for parole.
___________________
PATEL JP
Concur:
____________________
GORVEN J
_____________________
VAHED J
Date of Hearing
:
Friday, 03 February 2012
Date of Judgment :
Wednesday, 08 February 2012
For Both Appellants :
Mr. T. P. Pillay
Instructed by
:
Durban Justice Centre
(Tel. 031 304 3290)
For the Respondent:
Ms S. Mcanyana.
Instructed
by:
The Director of Public Prosecutions
301 Church Street
Pietermaritzburg
(Tel. 033 – 845 4400)
1
Veldman
v Director of Public Prosecutions: (Witwatersrand Local Division)
Veldman
v Director of Public Prosecutions: (Witwatersrand Local Division)
2007
(9) BCLR 929
(CC)
2007
(9) BCLR 929
(CC)
.
2
See
also
S v Willemse
1999 (1) SACR 450
(C).
3
Hiemstra’s Criminal Procedure
,
pg 28–37.