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2009
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[2009] ZAGPJHC 97
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S v Mazibuko and Another (A78/2009) [2009] ZAGPJHC 97 (23 April 2009)
NOT REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO
:
A78/2009
DATE
:
2009-04-23
In the matter between
NKOSINATHI B
MAZIBUKO
................................................
1
st
Appellant
MONDI
CELE
.......................................................................
2
nd
Appellant
and
THE
STATE
..........................................................................
Respondent
J U D G M E N T
VAN OOSTEN, J
:
The appellants were convicted in
the Johannesburg Regional Court of robbery with aggravating
circumstances and the unlawful possession
of a firearm and
ammunition. They were both sentenced to 16 years imprisonment on the
robbery charge and a further two years imprisonment
on the remaining
charges which were taken together for the purpose of sentence. The
appeal is against sentence only leave having
been granted by the
court
a quo
.
The facts of the matter are briefly the following. The complainant, a
taxi owner, in the early hours of the morning, on his usual
rounds
picked up the appellants as passengers in his taxi. Having offloaded
the other passengers along his route the appellants
remained behind.
One of them one pulled out a firearm and the other moved to the front
of the vehicle and also pointed a firearm
at the complainant.
The complainant was ordered to hand them his cell phone which he
did. At his request he was allowed to keep the sim card of the
cellphone. The complainant stopped his vehicle and they all alighted.
The complainant was searched again and his personal belongings
and
money were taken from him. They tied him to a tree with a black
cloth, returned to the vehicle and sped off.
The complainant managed to untie himself and raised alarm. The
appellants were arrested the next day in the complainant’s
taxi
in a roadblock near Warden, on their way to KwaZulu Natal. There was
no damage to the vehicle and the complainant's cellphone
was
recovered. The other personal items of which he was robbed were
however not recovered. Two firearms both loaded with live
ammunition
(the subject matter of counts 2 and 3 respectively) were found in a
secret compartment inside the vehicle.
It is trite that sentencing is pre-eminently a matter for the
discretion of the trial court. An appeal court is only entitled
to
interfere with a sentence where there has been a material
misdirection by the trial court or when the sentence imposed by the
trial court is shocking and startlingly inappropriate. The regional
magistrate duly considered the appellants’ personal
circumstances and the fact that they had spent almost one year in
prison awaiting trial. The first appellant was 46 years old at
the
time and the second appellant 31 years old.
The crime of armed robbery, it hardly needs to be stated, is
extremely serious. It is an ever increasing prevalent offence and
it
is in the general public interest that sentences imposed in these
matters should act as a deterrent to others. On this week's
appeal
roll in this court all the matters involve charges of armed robbery.
A sentence of 16 years imprisonment in respect of armed robbery, in
the circumstances of this case, does not strike me as either
unreasonable or unduly harsh. There is no doubt that the robbery was
accompanied by serious aggravating factors. It was pre-planned
and
premeditated. The two accused acted in concert which makes it a gang
robbery. The complainant was ambushed in his vehicle with
which he
was earning a living. The complainant was terrorised with firearms.
He was tied to a tree.
It was suggested on behalf of the appellants that all sentences
should have been ordered to run concurrently. I cannot agree. The
unlawful possession of firearms and ammunition charges constitute
separate and distinct offences deserving their own punishment.
In the
absence of any misdirection no justification in my view, exists for
this court to interfere with the sentences that were
imposed.
For all these reasons the appeal is dismissed.
MOKGOATLHENG, J
:
I agree.
000//000