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[2009] ZAGPPHC 320
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Tshongweni and Another v S (A73/2009) [2009] ZAGPPHC 320 (8 August 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT PRETORIA)
CASE
NUMBER: A73/2009
DATE:
03 AUGUST 2009
In
the matter between:
SIPHO
OWEN TSHONGWENI
FIRST
APPELLANT
FIKILE
PHILE MDAKWENDE
SECOND
APPELLANT
AND
THE
STATE RESPONDENT
JUDGMENT
TLHAPIAJ
[1]
The appellants appeared before the Regional magistrate court sitting
at Heidelberg on charges of robbery with aggravating circumstances,
read with Act 51/1977. The appellants were legally represented. They
pleaded not guilty and were convicted and sentenced to15 years’
imprisonment. They petitioned the High Court for leave to appeal
their conviction and sentence and were granted leave to appeal
against sentence only.
[2]
On the 20 March 2004, the complainant, his
friend Tebogo and others were playing pool at
a
tavern which also happened to be complainants home. It is alleged
that the two men whom complainant described as older men entered,
purchased cool drink, sat down to drink and left. They returned after
a while. The first appellant, who was known to the complainant
was in
possession of a fire arm and the second appellant in possession of a
knife. The latter held
the complainant
by the neck while the first pointed a firearm at him. The second
appellant robbed him of his I.D. document, drivers
licence and
cellular phone. The second appellant then took an iron bar, broke the
pool table and removed the coins that were in
the slot. The coins
collected over a period of three weeks would range between R600 and
R800. The complainant was not hurt during
the robbery. Both
appellants fled the scene and a shot was fired outside the premises.
It was denied that the appellants had bought
beer that evening. The
complainant’s version was corroborated by the second witness
Tebogo Mokgomong.
[3]
The first appellant testified that he was in the company of the
second appellant and other friends at the tavern playing pool
and
drinking liquor. The second appellant broke a pool cue and he denied
that the pool table was broken. They were informed that
the tavern
was closed for business after the cue was broken. They left the
premises with their beers. The fled when they saw a
police vehicle
approaching them because they were afraid of being arrested for
drinking in public. The second appellant corroborated
the first in as
far as the version relating to the incident inside the tavern was
concerned.
[4]
It was submitted on behalf of the appellants that the learned
magistrate had erred in finding that no substantial and compelling
circumstances were present.
After
conviction the magistrate forewarned the prosecution and defence of
the implications of Act 105 of 1997 ('the Act') with regard
to the
prescribed minimum sentences. Neither the defence or state addressed
the court on whether or not substantial and compelling
factors were
present. Without dealing with the matter further the magistrate in
sentencing made a finding that substantial and
compelling factors
were not present without substantiating such finding and proceeded to
impose sentence.
[5]
While it is assumed that the legal representative would have advised
the accused of the
implications of the
Act, It is doubtful whether they were advised because the charged
sheet made no reference to the Act. It is
my view that even where the
appellants were legally represented it remained the responsibility of
the presiding officer to ensure
that the accused persons appearing
before him or her were aware of the implications of the Act in
relation to the offence they
were charged with. This responsibility
should permeate the proceedings. Where the legal representative and
prosecutor failed to
address the court on whether or not substantial
and compelling factors were present, it was incumbent on the
magistrate to take
the matter up with them before pronouncing without
giving any reasons that there were none present. On reading the
record it does
not appear that the appellants were properly advised
of the consequences. In S v Ndlovu
2003 (1) SACR 331
(SCA) at para 12
Mpati JA said after referring to the S v Legoa
2003 (1) SACR 13
(SCA):
“…………
..The
enquiry, therefore, is whether, on a vigilant examination of the
relevant circumstances, it can be said that an accused had
had a fair
trial. And I think it is implicit in these observations that where
the State intends to rely upon the sentencing regime
created by the
Act a fair trial will generally demand that its intention pertinently
be bought to the accused at the outset of
the trail, if not on the
charge sheet then in some other form, so that the accused is placed
in a position to appreciate properly
in good time the charge that he
faces as well as the consequences Whether, or in what circumstances,
it might suffice if it is
brought to the attention of the accused
only during the course of the trial is no: necessary to decide in the
present case. It
is sufficient to say that what will at least be
required is that the accused is given sufficient notice of the
State’s intention
to enable him to conduct his defence
properly.”
[6]
Again it is my view that where there was scant information from the
evidence and from which it could be determined whether or
not
substantial and compelling circumstances were present or not, it was
the responsibility of the magistrate to enquire from the
legal
representative whether he or she advised the accused of the
advantages and disadvantages of testifying in mitigation. If
the
accused elected not to testify in mitigation, then in the legal
representative’s address in mitigation, the magistrate
should
draw the attention of both sides of the scarcity of factors from
which the court could draw information. In this instance
it cannot be
concluded that the appellants were aware of the Act in order to
enable them to give proper instructions to their legal
representative. The fact that the legal representative failed to
address the court makes me doubt whether she was aware of the
provisions of the Act and, that she gave proper advise to them
regarding the implications. Given the fact that the appellants were
first offenders and, in the absence of proper information available
to the court, pre-sentencing reports could have been requested
in
view of the long terms of imprisonment the appellants would be
subjected to. Pre-sentencing reports are meant to source additional
information about the accused, his background and other factors which
may assist the court in its consideration of sentence.
[7]
It is for this reason that I conclude that the trial of the
appellants in the sentencing stage was substantially unfair and
that
the sentence imposed was shockingly inappropriate and should be set
aside.
In
considering substantial and compelling factors the court takes into
account the cumulative effect of those factors given in mitigation
and other factors. The offence was a very serious one in that a
firearm and knife were used. The court however aid not take into
account the fact that the complainant was not injured during the
attack. In S v Abrahams
2002 (1) SACR 116
(SCA) at 127c-f the court
considered the fact that the conduct of the appellant to have been
motivated by amateurish folly. In
this instance the appellants
attacked a complainant who was well known to them in that they
frequented his home which was also
a tavern where they used to drink.
The complainant knew the parental home of the first appellant which
he pointed out to the police.
The appellants were first offenders,
though unemployed and unmarried they did part time jobs. The second
appellant had a minor
child to support. All this factors cumulatively
constitute in my view substantial and compelling factors which should
have been
taken into account in considering a partially suspended
sentence Again, the appellants spent a period of six months in
prison,
awaiting trial. In S v Brophy and Another
2007 (2) SACR 56
(W) it was held that ‘time spent as an awaiting-trial prisoner
was ‘equivalent to time served without remission’
and
that the fact that they did not qualify for the many benefits enjoyed
by sentenced prisoners e.g. participation in rehabilitative
programmes. Time served as an awaiting-trial prisoner was ‘equal
to double the time served by a sentenced one'. All these
factors
cumulatively constitute in my view substantial and compelling factors
which should have been taken into account in considering
a partially
suspended sentence. The term of 15 years imprisonment should be set
aside. The appellants were sentenced on the 1 September
2004. To date
they have served a term of imprisonment of four years and eleven
months.
In
the premises, I would make an order as follows:
1.
The appeal on sentence is upheld;
2.
The sentence of 15 years imprisonment is
substituted by the following:
(a)
Appellants are sentenced to seven years
imprisonment;
(b)
The seven years imprisonment is
antedated to the 1 September 2009
V.
V. TLHAPI
(ACTING
JUDGE OF THE HIGH COURT)
I,
agree
M.
F. LEGODI
(JUDGE
OF THE HIGH COURT
)
JUDGMENT
RESERVED
:
31 JULY
2009
JUDGMENT
HANDED DOWN :
3 AUGUST 2009