About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2011
>>
[2011] ZAFSHC 91
|
|
Teba and Another v S (A192/09) [2011] ZAFSHC 91 (26 May 2011)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Appeal No: A192/09
In the matter between:
SIMON TEBA
…............................................................................
1st
Appellant
PHILIP
MAKATSA
….................................................................
2nd
Appellant
and
THE STATE
…..................................................................................
Respondent
CORAM:
CILLIe,
J efVAN DER MERWE, J
etG,
KHAN,
AJ
JUDGMENT
BY:
G.
KAHN, AJ
DELIVERED
ON:
26
MAY 2011
\
[1] This is
an appeal by the Appellants against the sentence imposed by the Court
a
quo
and
is heard before this Court with the leave of the Court below. The
Appellants, who comprised accused 2 and 3 in the Court below,
were
each convicted of one count of murder and one count of robbery with
aggravating circumstances respectively. In consequence,
on 18
February 2000, they were each sentenced to life-imprisonment in
respect of the count of murder and 15 years imprisonment
in respect
of that of robbery.
[2] It is a trite principle of
our law that within the domain of sentencing, the trial court is
primarily possessed of the requisite
judicial discretion wherewith to
impose a sentence. Furthermore, that the court of appeal will not
interfere with such discretion
unless the trial court failed to
exercise its discretionary function judiciously, misdirected itself
in material respects, imposed
a shockingly inappropriate sentence or
imposed a sentence which no reasonable court would have done (S v
Malgas
2001 (1) SACR 469
(SCA; S v Salzwedel and Others
2000 (1) SA
786
(SCA) and S v PETKAR
1988 (3) SA 571
(A) at 574 C).
[3] I shall
assume, without making a formal finding that the provisions of
Section 51 of the General Law Amendment Act 105 of 1997
(the Act)
applied to the two aforementioned criminal counts
in
casu.
Sub-section
51(3) of the Act provides,
inter
alia,
that
the Court is obliged to impose the prescribed minimum sentences as
provided for in subsections 51(1) and 51(2), unless
there are
substantial and compelling circumstances which justify the imposition
of a lesser sentence.
[4]
Sub-section 51(1) read with Part 1 of Schedule 2 of the Act provides
that where an accused is convicted of murder which was
planned or
premeditated or where the death of the victim was caused following
robbery or attempted robbery with aggravating circumstances,
said
accused shall be sentenced to life imprisonment in the absence of
substantial and compelling circumstances which would justify
a lesser
sentence. On the count of murder
in
casu,
the
Appellants were liable to be sentenced to life imprisonment in the
absence of substantial and compelling circumstances. Regarding
the
charge of robbery wit aggravating circumstances, each accused was
liable to be sentenced to a minimum of 15 years in the absence
of
substantial and compelling circumstances.
[5] Subsection 51 (2) read with
Part 11 of Schedule 2 of the Act makes provision for the imposition
of a minimum sentence relative
to the charge of robbery with
aggravating circumstances, or where it involves the taking of a motor
vehicle, it places an obligation
on the trial court to impose a
specified sentence upon the accused, in his/her capacity as first
offender. Such specified sentence
constitutes a term of imprisonment
of not less than fifteen (15) years in the absence of substantial and
compelling circumstances,
which would justify a lesser sentence.
[6] The trial
judge in the court
a
quo
was
acutely aware of the aforedescribed provision, given his sweeping
reference thereto. He,
inter
alia,
opined
the following in his judgment at page 25, lines 4-8, (inclusive
thereof): "Sub-artikel 51(3) van die wet bepaal in algemene
terme dat indien daar wesentlike en dwingende omstandighede bestaan
wat die oplegging van n mindere vonnis as die vonnisse in subartikels
51 (1) en 51 (2) van die wet voorgeskryf regverdig, ek so mindere
vonnis kan ople". The trial judge, in his evaluation of
the
evidence, found that the Appellants' collective moral blameworthiness
was reduced in consequence of the following prevailing
circumstances
in the trial a
quo:
(i)
the
Appellants" respective youthfulness
(ii)
the absence
of a pre-meditated criminal act
(iii) that the accused did not
initiate the crime, more particularly that of robbery, which, having
triggered off a domino chain
of events, ultimately resulting in the
murder of the victim
(iv) that
accused 1 in the trial a
quo,
who
clearly constituted the proverbial leader of the pack, initiated the
offences and played a leading role, thereby reducing the
blameworthiness of the Appellants, given that their actions were
attributed largely to their youthfulness and loyalty to accused
number 1.
[7] The trial judge notably
accepted that the aforementioned circumstances constituted
substantial and compelling circumstances
and, without making a formal
finding stated that said circumstances, in appropriate circumstances,
are indeed compelling and substantial
as contemplated in Section 51
(3) (a) of the Act. However, he proceeded to state that the
acceptance of the said circumstances
as compelling and substantial
did not mean that he was obligated to impose a lesser sentence than
that prescribed by the Act and
that he was still possessed of the
judicial discretion to consider an appropriate sentence in the light
of all the prevailing facts.
[8] The trial judge thus
evaluated the nature and severity of the offences, the prevalence and
high incidence of the offences, the
constitutional value and the
protection of the right to life, the duty of the judiciary to stem
the tide of crimes of murder by
removing the offenders permanently
from society thereby reducing the high rate of violent crimes and
further conveying a message
to civil society that violent crimes will
not be tolerated.
[9] The trial
judge continued to evaluate whether the Appellants as human material
could be rehabilitated. He found that they showed
no remorse in and
during the proceedings and more particularly when delivering their
testimony. The trial judge found that the
accused tried to distance
themselves from crime and to lesser or greater degree attempted to
shift the blame to accused 1. The
court nevertheless found that the
Appellants showed remorse or were capable of developing remorse later
in life and, as such, they
constituted material for rehabilitation.
The trial judge considered the extreme cruelty with which the victim
was murdered together
with the determination implemented by the
accused to ensure that the victim did not survive the attack and
concluded that despite
the presence of substantial and compelling
circumstances in the trial a
quo
he
was not obliged to depart from the sentence prescribed by the Act. It
is my view; the trial judge misdirected himself in that
respect.
[10] The same principle was
raised and deliberated upon in the full bench judgment of S v SM and
Others
2010 (1) SACR 504
(WCC). The full bench in that case was split
on the issue. The majority in that case reasoned as the trial judge
did in this matter.
In the minority judgment, Moosa J, postulated the
issue in para 1 as follows:
"The
crisp legal issue that has to be determined in this appeal on
sentence, aside from the factual issues, is: can the trial
court,
after having found that substantial and compelling circumstances
exist as envisaged in s 51(3)
(a)
read
with ss (1) of the Criminal Law Amendment Act 105 of 1997 (the Act),
exercise its sentencing discretion to impose life imprisonment?
This
question impacts on appellants 1, 2 and 3 who were sentenced to life
imprisonment on the charge of murder. A useful point
of departure is
to ascertain the intention of the legislature as reflected in s 51(3)
(a)
and
as it obtained at the time sentences were handed down in this
matter."
After analyzing the relevant
statutory provisions and the case law, Moosa J, concluded as follows:
"[9] In
the case of s 51(3)
(a)
read
with ss (1) of the Act, if no substantial and compelling
circumstances are found to exist, the court has no discretion, but
to
impose life imprisonment. However, should the court in such case find
that substantial and compelling circumstances exist to
impose a
lesser sentence, then the residual discretion of the court is
circumscribed, in that the court is obliged to impose a
sentence
other than life imprisonment, in accordance with the doctrine of
proportionality, by taking into consideration that the
legislature
has ordained life imprisonment for such scheduled offence in the
absence of substantial and compelling circumstances.
[10] In the
case of s 51(3)
(a)
read
with ss (2), if no substantial and compelling circumstances are found
to exist, in my view, the discretion of the court is
circumscribed,
to the extent that it is free to impose any sentence, depending on
the circumstances of the case, but not less than
that prescribed.
However, should the court find substantial and compelling
circumstances exist to impose a lesser sentence, the
residual
discretion of the court to impose sentence is circumscribed, to the
extent that it is obliged to impose a sentence other
than that
prescribed, but in accordance with the doctrine of proportionality,
by taking into consideration that the legislature
has ordained a
prescribed sentence for such scheduled offence in the absence of
substantial and compelling circumstances."
[11] I am ad
idem
with
the
ratio
decidini
that
led Moosa J to the conclusions outlined in paras (9) and (10) of the
excerpt cited
supra.
The
conclusion in para (10) relates to a robbery charge and is equally
applicable to the robbery count in this matter.
[12] Having found that the trial
judge misdirected himself in a material respect, I am at liberty to
impose sentencing afresh in
respect of both the counts of murder and
robbery subject to the residual discretion to impose a lesser penalty
than those prescribed
by the Act but in accordance with the doctrine
of proportionality. I will accordingly proceed to sentence afresh.
[13] The
personal circumstances of both Appellants have been fully outlined in
the judgment of the court a
quo
and
as such I shall refrain from repeating the same in this judgment. The
substantial and compelling circumstances have likewise
been
adequately described. The court
a
quo
further
found that the Appellants displayed an element of remorse or could
develop remorse with the passage of time and that the
prospect of
rehabilitation applies to both Appellants.
[14] On the
other hand the court a
quo,
and
in my view correctly, emphasized the cruel and gruesome nature of the
murder and the seriousness thereof;
inter
alia
that
the robbery was the precursor of the murder; the prevalence and high
incidence of crimes like murder and robbery in the jurisdiction
of
the court a
quo;
the
duty of the courts to protect members of society by imposing heavy
sentences that will send a clear message to the community
at large
that violent crimes will not be tolerated, thereby comprising an
element of deterrence. The victim was an only child thus
rendering
his elderly parents childless. The motor vehicle was destroyed
causing the victims to sustain pecuniary damages to the
extent of R18
000.00.
[15] Having
considered all the circumstances including the nature and severity of
the offences, the interests of society, the interests
of the victims,
the personal circumstances of the Appellants, and the purpose of
punishment, my conclusion is that direct imprisonment
is the only
appropriate sentence
in
casu.
The
personal circumstances of each Appellant and his respective
involvement are substantially the same. There is thus no reason
to
treat them differently. I also take into consideration that they were
in custody as awaiting trial prisoners for approximately
16 months.
The circumstances which underpin the chain of events relative to both
criminal counts occurred at the same time and
place, concern the same
parties and arose from the same facts. In the circumstances, I
propose that the sentences run concurrently.
[16] In the
result, I set aside the sentence of the court a
quo
and
substitute the following sentences in its stead:
(i)
Count 1
.
murder: accused 2 and 3 are sentenced to 20 years
imprisonment;
and
(ii)
Count 2,
robbery with aggravating circumstances
:
accused 2
and 3 are sentenced to 10 years imprisonment.
The sentence in respect of count
2 (robbery) shall run concurrently with the sentence imposed in
respect of count 1 (murder).
KHAN, AJ
I concur
VAN
DER MERWE, J
I concur
CILLIE,
AJ
I concur
I concur