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[2011] ZAFSHC 21
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Marothodi and Other v S (A490/2007) [2011] ZAFSHC 21 (3 February 2011)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal No. : A490/2007
In
the appeal between:
ISMAEL MAROTHODI
….........................................................
1
st
Appellant
ISAAC MOLATEDI
…..............................................................
2
nd
Appellant
ISAAC TSOUTE
…...................................................................
3
rd
Appellant
and
THE STATE
…...........................................................................
Respondent
CORAM:
MOCUMIE
et
MOLOI, JJ
HEARD
ON:
31 JANUARY 2011
_______________________________________________________
DELIVERED ON:
3
FEBRUARY 2011
APPEAL
_______________________________________________________
MOCUMIE, J
[1]
The three appellants appeared in the Regional Court, Welkom on 20
July 1999 on several charges. On 12 January 2000 they were
convicted
by the same court on robbery with aggravating circumstances, rape and
two counts of attempted rape. On 3 February 2000
each appellant was
sentenced as follows:
“
Count
2, housebreaking with intent to rob and robbery: Fifteen (15) years
imprisonment.
Count
3, rape: Ten (10) years imprisonment.
Count
4, attempted rape: Five (5) years imprisonment.
Count
5, attempted rape: Five (5) years imprisonment.”
The
trial court apparently dismissed the application for leave on 31
October 1999.The appellants then petitioned this Court. Leave
was
granted only against sentence. The appeal is then against sentence
only. The appeal is opposed.
[2]
Mr Tshabalala in his Heads of Argument and in his oral arguments, on
behalf of the appellants, submitted that the provisions
of the
Criminal Law Amendment Act 105 of 1997
(“the minimum
sentencing legislation”)
were not pertinently
drawn to the attention of the appellants. He argued that the trial
court did not take into account the period
the appellants spent in
custody pending finalisation of the matter, awaiting trial; that the
appellants were relatively young and
that the third appellant was a
first offender at the time of the commission of these offences.
[3]
The proven facts of this case can be summarised as follows. On 9
August 1998 Elisa Kwaaiman and her family comprising of a girl
and
her two friends were asleep when a group of five young men burst into
her home and robbed her of money, raped her daughter
and attempted to
rape her two friends. All three appellants were part of this group.
[4]
The offences committed are very serious and the experience was
undoubtedly traumatic on Ms Kwaaiman and her family and will
take
time before it can be erased from their mind.
[5]
It has been set down by the Supreme Court of Appeal in
S v
Ndlovu
2003 (1) SACR 331
(SCA) at 335j that:
“
[11]
Whilst it is desirable that the charge-sheet should set out the facts
the State intends to prove in order to bring an accused
within an
enhanced sentencing jurisdiction, to do so is not essential. R v
Zonele and Others
1959 (3) SA 319
(A) at 323A - H; S v Moloi
1969 (4)
SA 421
(A) J
2003 (1) SACR p336
MPATI JA at 424A – C.”
[6]
The Court stated further at 336f:
“
(Michael
Legoa v The State, case No 33/2002, judgment delivered on 26
September 2002, in para [20].) Cameron JA declined, however,
to lay
down a general rule that the charge-sheet must in every case recite
either the specific form of the scheduled offence (in
that case
dealing in dagga with a value of more than R50 000) with which an
accused is charged, or the facts the State intends
to prove to
establish it. He held, in the end, that: 'Whether the accused's
substantive fair trial right, including his ability
to answer the
charge, has been impaired, will depend on a vigilant examination of
the relevant circumstances'.”
See
also
S v Seleke en Andere
1976 (1) SA 675
(T) SA 675
(T) AT 682h.
[7]
In applying the approach set down in
Legoa
supra
and approved in
S v Ndlovu
supra
the enquiry
therefore in this case is whether, on a vigilant examination of the
relevant circumstances, it can be said that the
appellant had a fair
trial.
[8]
During the trial only the third appellant was legally represented
during the entire trial. Through his legal representative
he was able
to answer the charge. Extensive and thorough cross-examination by his
legal representative bears testimony to this.
In my mind the third
appellant was properly represented and there can be no doubt that he
was appraised of and warned of the applicability
of section 51 of the
Act by his legal representative in the absence of any contradictory
evidence.
[9]
Insofar as the first and second appellants are concerned, both were
legally represented until after two key state witnesses
had
testified. From there on they conducted their own defence.
[10]
When their legal representatives withdrew in the middle of the trial
due to lack of instructions on 29 November 1999, the first
appellant’s legal representative pertinently requested the
court (at p 107 of the transcribed record) to explain the accused’s
right to legal assistance/aid and that a lawyer should be appointed
for him. I take it he did so wisely and knowing the sentence
his
client faced. All the trial court said in this regard is as reflected
on p 108 of the record:
“
Kan
u aandui …wat u gaan doen rakende u verdediging ….”
The
appellants then indicated that they will conduct their own defence.
With no further ado the trial continued with the two appellants
conducting their own defence and blatantly not assisted by anyone
including the trial court at all stages of the trial.
[11]
Advocate Hoffman was constrained to concede that this was irregular
or at least that the trial court should have warned the
two
appellants at an early stage of the trial of the impeding
applicability of the minimum sentencing legislation. Either at the
outset or at the stage when their legal representatives withdrew from
the matter. To inform the two appellants at sentencing was
not fair
nor did it give the appellants time to prepare themselves.
[12]
Applying the approach set down in
Legoa
the question
remains whether these two appellants had a fair trial. In my view, as
correctly conceded by the State, they did not.
[13]
Upon conviction the two appellants became liable to a minimum
sentence of life imprisonment in respect of the robbery and rapes
unless substantial and compelling circumstances were present
justifying a departure from the prescribed sentence. The trial court
without saying so specifically found such circumstances to exist and
purportedly imposed lesser sentences. Clearly the trial court,
despite saying that it tempered with the prescribed sentence
overreached its discretion in its zeal to satisfy the interests of
the society regardless of the favourable personal circumstances of
the appellants such as their relative youth and the fact that
they
spent at least two (2) years in prison pending the finalisation of
this matter.
[13]
The purpose of sentencing is generally known. It has been repeatedly
stated that a sentencing court must consider the three
basic
principles of sentencing, the triad, when considering an appropriate
sentence, viz The seriousness of the offence, the personal
circumstances of the offender and the interests of society as
propounded in
S v Zinn
1969 (2) SA 357
AD. As
Friedman
J
formulated it in
S v Banda and Others
1991 (2) SA
352
(BG) at 355A-B:
“
The
elements of the triad contain equilibrium and a tension. A court
should, when determining sentence, strive to accomplish and
arrive at
a judicious counterbalance between the elements in order to ensure
that one element is not unduly accentuated at the
expense of and to
the exclusion of the others… ”
[14]
I am of the view that the trial court did not strike that counter
balance referred to in
Banda
supra
and in the
process failed to exercise its discretion judiciously which entitles
this Court to interfere with the sentences imposed.
[15]
There is a close link between the offences and in such circumstances,
the concurrence of sentences is always appropriate. In
S v
Koutandos and Another
2002 (1)SACR 219 (SCA the Supreme Court
of Appeal interfered with the cumulative sentences of 15 years and 27
years imprisonment
imposed on two appellants respectively upon
conviction of motor vehicle theft and fraud. The Court upheld the
appeal and imposed
lesser sentences on the basis that:
“
When
regard is had to the cumulative effect of the sentences imposed on
both appellants, the result strikes me as so excessive as
to justify
interference by this Court.”
(Per
Scott JA
at 221g).
See
too
S v Senatsi and Another
2006 (2) SACR 291
(SCA).
[16]
I am of the view that, utilising the
Koutandos
decision
supra
as a guideline, whilst bearing in mind that every
sentence must be individualised, an effective twenty five (25) years
will be
appropriate. Such sentence can be attained by ordering that
the sentences imposed to run concurrently.
[17]
In the circumstances the appeal ought to succeed and I make the
following order.
ORDER:
The
appeal against sentence by all three appellants is upheld.
The
convictions and sentences imposed on 3 February 2000 are set aside
and replaced by the following:
“
Count
2: Fifteen (15) years imprisonment.
Count
3: Ten (10) years imprisonment.
Count
4: Five (5) years imprisonment.
Count
5: Five (5) years imprisonment.”
3.
In terms of
section 282
of the
Criminal Procedure Act 51 of 1977
it
is ordered that the sentences in counts 4 and 5 should run
concurrently with the sentences in counts 2 and 3.”
_______________
B.C.
MOCUMIE, J
I concur.
______________
K. J. MOLOI, J
On behalf of the
appellant: Adv. L. Tshabalala
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv. Hoffman
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN