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[2009] ZAFSHC 80
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Tsie and Another v S (A233/08) [2009] ZAFSHC 80 (3 September 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A233/08
In
the
appeal
between:-
FREDDY
MATABOKO TSIE
First
Appellant
EZEKIAL
WONDERBOY DIRANGWE
Second
Appellant
and
THE
STATE
Respondent
_______________________________________________________
CORAM:
KRUGER,
J
et
VAN
ZYL, J
et
LEKALE,
AJ
_______________________________________________________
HEARD
ON:
24
AUGUST 2009
_______________________________________________________
JUDGMENT
BY:
LEKALE,
AJ
_______________________________________________________
DELIVERED
ON:
3
SEPTEMBER 2009
_______________________________________________________
INTRODUCTION AND BACKGROND:
[1]
The
two appellants were sentenced to long periods of imprisonment for
murder and robbery with aggravating circumstances, with the
second
appellant also being sentenced to a further long jail term for
possession of a firearm by Mabesele AJ, sitting as the trial
Judge in
this Division, on 26 October 2001.
[2] The
appellants, together with one other person who was acquitted at the
end of the trial, had pleaded not guilty to the three
charges
levelled against them but were, eventually, convicted and sentenced
as set out below after they had closed their respective
cases
,
both before the verdict and the sentence, without leading any
evidence.
[3] The first appellant
was sentenced to twenty five years direct imprisonment and twenty
years direct imprisonment on the charges
of murder and robbery
respectively.
[4] The
second appellant, on his part, was sentenced to life imprisonment for
murder, twenty five years imprisonment for robbery
and fifteen years
imprisonment for possession of a firearm in contravention of the
provisions of section 2 read with section 39
of the Arms and
Ammunition Act No. 75 of 1969 before it was repealed by the
Firearms
Control Act, No. 60 of 2000
.
[5] The said sentences
were expressly ordered not to run concurrently and the appellants
were throughout the trial each represented
by counsel.
[6] The
appellants felt aggrieved by the sentences and now approach the full
bench of this court, with the leave of the trial court,
by way of a
joint appeal against the same.
SUMMARY OF SUBMISSIONS AND
ISSUES IN DISPUTE:
[7] In
the
Heads
of Argument filed for both parties and verbal submissions, counsel
effectively agree that there exists cause to interfere
with the
punishments meted out in respect of charges 2 and 3 on the basis that
they are inappropriate as well as shockingly excessive
and, further,
that the trial court may have, possibly, misdirected itself insofar
as they are not in line with recent court decisions.
[8] Counsel
are, however, in dispute over whether or not such cause exists in
respect of the sentences imposed for the murder charge
–
viz
charge number 1.
[9] Mr.
Nkhahle, for the appellants, contends that the sentences in respect
of murder are disturbingly excessive while Mr. Pienaar,
on the other
hand, maintains, on behalf of the State, that the relevant sentences
are well-balanced and are in line with the nature
and seriousness of
the offence as well as the interest of the society.
[10] I
was left in doubt, after going through the record of the proceedings
before the court
a
quo
and listening to verbal submissions, as to whether or not the Act on
minimum sentences
viz
Criminal
Law Amendment Act No. 105 of 1997
, was applicable to the charges.
[11] I,
therefore, effectively requested counsel on both sides,
ante
omnia
,
and as a point of departure to address the court on the following:
whether
or not the said Act was applicable, and if so
whether
or not the appellants,
qua
accused persons in the court
a
quo
,
were informed adequately of that fact as well as the consequences
of convictions on the relevant charges such as the possibility
of
life sentences on the murder charge as a prescribed minimum
sentence and fifteen years in respect of each of the two other

charges.
[12] The
aforegoing request was motivated mainly by the realisation, on my
part, that, contrary to the contentions made in the Heads
of Argument
filed for the appellant to the effect that it is common cause that
the Act applied, no specific mention or reference
to the said Act was
apparent
ex
facie
the record of the proceedings from the verdict stage to and including
the end of the sentence stage. Not even during the application
for
leave to appeal did the learned Judge mention the Act in question
specifically save by possible implication when he,
inter
alia
,
remarked:
“
But if murder
is committed during robbery, is that not life imprisonment?
”
[13] Not even the
language of the Act such as
“
substantial
and compelling circumstances
”
i
s
reflected in the record. The only suggestion that the trial Judge,
when he imposed the sentences, moved from the premise that
the Act
was applicable is the kind of sentences he imposed such as life
imprisonment for murder and fifteen years for possession
of a firearm
as well as his statements after the fact of sentencing,
viz
during the application for leave to appeal.
[14] Even
before he imposed a twenty five year prison sentence for murder on
the first appellant, the trial Judge did not enter
any substantial
and compelling circumstances, which he may have found to exist, on
the record as required by section 51(3) of the
Act.
[15] In
the aforegoing regard it should be noted that it is now trite that
the existence of such circumstances is
a
conditio
sine
qua non
for the trial court to deviate from prescribed minimum sentences by
imposing a lesser sentence. For the trial court to be able
to impose
a sentence lesser than the prescribed one, it must:
be
satisfied
that there exists substantial and compelling circumstances
warranting the same; and
enter such
circumstances on the record.
(See
section 51(3) of the Act.)
[16] The reason for the
latter requirement is probably the fact that:
“
... the
Legislature aimed at ensuring a severe, standardised, and consistent
response from the courts to the commission of such
crimes unless
there were, and could be seen to be, truly convincing reasons for a
different response...
”
(
See
S
v MALGAS
2001 (1) SACR 469
(SCA) from 476 h – 477 a – b.)
[17] It
follows, therefore, that substantial and compelling circumstances, as
the cause for the departure from prescribed sentences,
should be
identified and apparent, as such, from the record so that they
“
could
be seen to be... truly convincing reasons for a different response.
”
(See
S
v MALGAS
,
supra
.)
[18] An
assumption
,
on the part of Mr. Nkhahle, that such circumstances were found simply
because a sentence lesser than the prescribed one was imposed
is, in
my view, thus without legal and factual basis.
APPLICABILITY OF THE PROVISIONS
OF THE ACT:
[19] In
response to my inquiry Mr. Nkhahle
,
effectively, submits that it appears that the Act was applicable but
that the appellants were not informed adequately of the case
they had
to meet as well as the consequences attendant on a conviction.
[20] On
the part of the State, Mr. Pienaar contends that, although it was not
apparent from the record that the appellants were
adequately
informed, it was highly probable that their counsel at the trial
advised them properly and adequately of the applicability
and
implications of the Act. In the aforegoing regard he points out that
counsel involved were well-known and experienced senior
counsel who,
even at the time of the trial, were already his seniors.
[21] Mr.
Pienaar, further, contends that the Act was applicable and that if
the court were to find that the appellants, as accused
persons in the
court
a
quo
,
were not apprised fully of the applicability of the Act and the
consequences of a conviction, then and only in that event, twenty

five years imprisonment would be appropriate in respect of the murder
charge and in relation to each appellant.
[22] Mr. Nkhahle, on his
part, contends that an effective thirty years imprisonment would be
appropriate in respect of the appellants.
[23] Sections
51(1) and (2) of the Act as they stood at time of the relevant
sentences oblige, in peremptory terms, the court to
impose the
prescribed minimum sentences on a person whom it has convicted of
offences referred to in Parts I, II, III and IV of
schedule 2 of the
said Act.
[24] The applicable parts
of schedule 2 of the Act are to the effect that:
In
respect of Part I and in relation to murder, a death sentence
where,
inter
alia
,
the death of the victim was caused by the accused in committing or
attempting to commit or after having committed or attempted
to
commit robbery with aggravating circumstances as defined in section
1 of the Criminal Procedure Act;
In
respect of Part II and in relation to murder in circumstances other
than those referred to in Part I, a sentence of fifteen
years for a
first offence is prescribed and in respect of robbery, when there
are aggravating circumstances, a sentence of
fifteen years for a
first offence and twenty years for a second offence are prescribed.
The same applies in the case of possession
of an automatic or
semi-automatic firearm, explosives or armament.
[25] In
S
v LEGOA
2003 (1) SACR 13
(SCA) the court per Cameron JA at p. 25 (b – e)
quoting and referring to the judgment of Botha J in
S
v NZIYANE
2000 (1) SACR 605
(T) with approval stated that:
“
The
charge-sheet averred possession of a Norinco pistol and specified
that this was a semi-automatic weapon. However, in its verdict
the
trial court though observing that it was common cause that a Norinco
pistol was in general a semi-automatic weapon, failed
to make a
specific finding to this effect...
The court correctly laid emphasis on the 1997 Act’s requirement
that the accused must be convicted of the scheduled offence.
The
minimum sentencing provisions therefore did not apply. Although the
Legislature had not created new offences, it had to appear
at
conviction that the elements in question were present. Botha J
observed (I translate):
‘
The words in my
opinion convey the meaning that the facts that must be present to
make the minimum sentence compulsory must be established
at
conviction in the sense that they must be included in the facts on
which the conviction is based.’”
(See
further
S
v RAATH
2009 (2) SACR 46
(C) and
S
v GAGU
[2006] ZASCA 7
;
2006 (1) SACR 547
(SCA) where the court emphasised that the facts
necessary to found application of the Act must be established before
conviction.)
[26] In
the present matter no
mention
was made in the charge sheet that the murder was committed during a
robbery with aggravating circumstances and that the
Norinco pistol
was a semi-automatic pistol. Not even in his judgment did the trial
Judge make a specific finding that the murder
was so committed or
that the firearm in question was semi-automatic.
[27] However, it is clear
from the record as at the end of the verdict stage that:
“
The
death of the victim was caused by the accused... in committing
robbery with aggravating circumstances.
”
(See Part I paragraph
(C) of Schedule 2 to the Act.)
i
nsofar
as it is patent from the recorded evidence that the appellants
entered the deceased’s store armed with a Norinco pistol,
fatally
shot him in the chest as he stood behind the counter and, thereafter,
made off with a cash register containing R300,00.
[28] It
is further clear from exhibit “D” (p. 676 of Volume 10 of the
record)
,
which was handed in during the trial, that the relevant firearm is
semi-automatic.
[29] It
is, therefore, correct as submitted by counsel on both sides that the
Act in question was applicable to all of the three
charges insofar as
all the jurisdictional facts necessary for the application of the Act
were effectively present as at the end
of the conviction stage.
SUBSTANTIVE RIGHT TO FAIR TRIAL:
[30] The next inquiry was
whether or not the appellants, as accused persons before the trial
court, were informed about the assertions
against them with
sufficient detail to answer them.
[31] In
S
v LEGOA
,
supra
,
the court at p. 22 g – 23 (a – e) found that an accused person
standing trial has a substantive right to a fair trial in terms
of
the Constitution of South Africa Act and that the right in question
is:
“
To
be informed of the charge with sufficient detail to answer it.
”
[32] As
mentioned earlier, although he
acknowledges
that there is nothing on the record suggesting that the appellants
were informed of the applicability of the relevant
Act and its
sentence implications, Mr. Pienaar eloquently and effectively argues
that such an inference may be drawn, as a reasonable
one, from the
fact that the appellants were represented by eminent or experienced
counsel of senior standing during the trial.
[33] He,
however, effectively concedes, correctly so, that such an inference
is not based on the record as the material properly
before the court.
[34] In
S
v NDLOVU
2003 (1) SACR 331
(SCA) p. 335 (b – c) the Supreme Court of Appeal,
per Mpati JA, in rejecting an almost similar submission pointed out
that:
“
The
difficulty with this argument, of course, is that there is no
indication whatsoever in the record that the appellant or his
legal
representative had the slightest idea, prior to the sentence, that
the appellant was facing the prospect of imprisonment
of fifteen
years in terms of the minimum sentencing provisions of the Act.
”
[35] Similarly
in this matter a submission that the appellants were aware of the
consequences of their convictions is, with respect,
not grounded on
any recorded evidence and, as such, remains speculative and
unreliable.
Such a submission, in my view, amounts to inviting the court to go
beyond the appeal material properly before it and to rely
on Mr.
Pienaar’s subjective knowledge of the competencies and experiences
of the legal practitioners who represented the appellants
at the
trial, as portrayed by him from the Bar, in order to determine an
issue as fundamental as observance of a constitutional
right.
[36] In
the court’s view, such a conduct on the part of a court exercising
appeal jurisdiction, would be highly irregular, irresponsible
in the
extreme, judicially unsound and mischievous at the very least insofar
as it would amount to relying either on its own subjective
knowledge
and impressions of such legal practitioners or that of counsel
appearing before it without just and/or legal cause.
[37] The
appellants were not alerted to the provisions of the minimum sentence
legislation and their sentencing was, thus, substantively
unfair.
The said fact constitutes a substantial and compelling circumstance
for departing from the prescribed minimum sentences
in respect of all
of the three charges involved. (See
S
v NDLOVU
,
supra
,
at 337 g – h.)
EFFECT OF A FINDING THAT
SUBSTANTIAL AND COMPELLING CIRCUMSTANCES EXIST:
[3
8] Once
the court had found the existence of substantial and compelling
circumstances it was allowed a discretion to impose a lesser
sentence
by section 51(3) of the Act as it stood before it was amended.
[39] In
the light of the aforegoing the court, therefore, had a discretion to
either impose the prescribed minimum sentence or a
lesser sentence in
appropriate circumstances contemplated by section 51(3) in its
unamended form. The aforegoing is apparent from
the use of the
permissive “
may
”
in the original section 51(3) as opposed to the imperative “
shall
”
used in sections 51 (1)and (2) of the Act.
[
40] The
position has since changed with the coming into operation of the
substituted section 51 which obliges the court, by the
use of the
peremptory “
shall
”,
to impose a lesser sentence under such circumstances. The aforegoing
is also indicative of the fact and buttresses the view
that the
intention behind and the effect of the old section 51(3) was
different from the intention and desired effect of the new
section
51(3) which came into operation on 31 December 2007.
[41] The
effect of the aforegoing new provisions, in my view, is that the
court has a discretion to impose whatever a sentence,
provided that
it is a lesser sentence than the prescribed minimum sentence, once it
has found that substantial and compelling circumstances
exist.
[42] It
follows, therefore, that the sentencing discretion of the court at
present is restricted to being exercised downwards from
the
predetermined or prescribed sentence. In the case where no such
circumstances are found to exist the sentencing discretion
of the
court is restricted to operating upwards from the prescribed minimum
sentence.
[43] The
court, thus, has to decide how to exercise its limited discretion in
accordance with the provisions of the original section
51(3) now that
it has found that substantial and compelling circumstances exist.
LAWFULNESS
AND/OR APPROPRIATENESS OF A
LESSER
SENTENCE IMPOSED ON THE FIRST APPELLANT:
[4
4] It
is common cause that before he imposed a twenty five year
imprisonment sentence on the first appellant, the trial Judge did
not
first set out and enter the substantial and compelling circumstances
on the record to justify such a lesser sentence as required
by the
Act.
[45] The
wording of the Act is clearly peremptory and, in my view, no lesser
sentence could and still may, in law, validly be imposed
unless such
circumstances have been found and entered on the record so that they
may be seen to exist. (See
S
v MALGAS
,
supra
.)
[46] The
prescribed minimum sentence applies unless the legally recognised
cause for a departure therefrom exists
ex
facie
the record.
[47] The
court
a
quo
was,
thus, in law not entitled to impose a lesser sentence without first
having established and entered on the record the prerequired
facts
necessary for it to relinquish the enhanced penal jurisdiction in
respect of the scheduled offences.
[48] The
court is, on appeal, generally entitled, in terms of section 322 of
the Criminal Procedure Act read with section 22(b)
of the Supreme
Court Act, to exercise its power to increase sentence in order to
bring it in line with the requirements of law,
among others. (See
S
v TOUBIE
2004 (1) SACR 530
(W) where a minimum sentence which had the effect
of increasing a lesser sentence imposed by the trial court was
imposed on appeal
in order to bring it in line with the requirements
of the minimum sentences Act.)
[4
9] Mr.
Nkhahle contends that a sentence of twenty five years imprisonment is
too harsh but could not take the matter any further.
[50] In
the case of the first appellant, the sentence imposed is not in
accordance with the law insofar as no legally permissible
cause
existed therefor. It, as such, generally falls to be set aside and
replaced with a sentence not less than the prescribed
minimum
sentence of life imprisonment unless substantial and compelling
circumstances are found to exist, on appeal, from the recorded

evidence which served before the trial court even if such a court did
not identify and enter them on the record as such.
[51] The
court has already found the existence of such circumstances with the
result that a lesser sentence may be imposed in accordance
with the
provisions of section 51(3) as it then stood. It does not,
necessarily, follow from the said finding that the sentence
imposed
by the trial court was the appropriate one. The Appeal Court, as the
court which made a finding that there exist substantial
and
compelling circumstances, has to determine the appropriate sentence.
APPROPRIATE SENTENCES:
[5
2] The
parties are in agreement that the personal circumstances of the
appellants are similar and that there exists no cause to

differentiate between them for sentencing purposes.
[53] With
regard to the third charge of possession of a firearm, it may be
mentioned that the charge sheet referred to section
39 of the Arms
and Ammunition Act, No 75 of 1969, as opposed to section 51(2) of the
Act and, as was found in
S
v LEGOA
,
supra
,
at
p. 26 a
this fact may have misled the appellants.
[54] In
terms of section 39(2)(b)(i) of the Arms and Ammunition Act the
maximum penalty for possession of a firearm in contravention
of
section 2 thereof was R12 000,00 or three years imprisonment.
[5
5] The
fact that there exist substantial and compelling circumstances does
not detract from the barbaric and callous nature of the
murder which
in the words of Marais JA in
S
v MALGAS
2001 (1) SACR 469
(SCA) at 485 d – e:
“
remains
a particularly heinous crime of the kind which the legislature has
singled out for severe punishment and the sentence to
be imposed in
lieu of life imprisonment should be assessed paying due regard to the
benchmark which the legislature has provided.
”
[56] A
submission by Mr. Nkhahle, in the Heads of Argument, to the effect
that the murder involved was not the worst kind of murder
is, with
respect,
unfortunate.
Murder is essentially a violation of the victim’s constitutional
right to life, which was described by the Constitutional
Court in
S
v MAKWANYANE
[1995] ZACC 3
;
1995 (3) SA 391
(CC) as the:
“
Most
fundamental of all rights, the supreme human right”
per
Langa J at 479 C; and
“
...
most basic of rights
”
by Kriegler J at p. 478
G; and together with the right to dignity
“
...
most important of all human rights, and the source of all other
personal rights... [that] we are required to value... above
all
rights
”
per Chaskalson P at 451 C
– D.
[5
7] The
same applies to robbery with aggravating circumstances which is, as a
matter of law and in the absence of substantial and
compelling
circumstances, visitable with not less than fifteen years
imprisonment for the first offence and not less than twenty
years for
a second offence.
[58] The
offence of possession of an automatic or semi-automatic firearm is in
the same category, for sentencing purposes, as robbery
with
aggravating circumstances.
[59] As
pointed out earlier the appellants did not tender any evidence in
mitigation of sentence. They, thus, remained closed books
at the
trial with no evidence of remorse on their part whatsoever being
apparent
ex
facie
the record.
[60] Their
vital statistics or personal profiles, in the words of Mr. Nkhahle,
remained exactly that, cold statistics which only
serve as jackets to
the closed books that they were before the trial court.
[61] The
said jackets contain scant information and could not possibly give
the trial court a sufficient glimpse of the appellants’
respective
characters. The essence of what the court
a
quo
needed to assess, for sentencing purposes, was thus, not before the
trial Judge.
[62] The
data supplied was no more than cold and hard information which only
served to project the appellants as part of the statistics
of a
growing number of young people who leave school, before matric, for
no apparent just cause only to join the ranks of the unemployed
and,
eventually, resort to the life of crime. They almost invariably
eventually swell the already large numbers of criminals who
populate
our correctional centres.
[63] In
my view, what the trial court seeks to identify in order to determine
an appropriate sentence, is not only the superficial
information
about the accused person standing trial, but most importantly, his
unique self, his fears and aspirations, his moral
constitution and
attitude towards the values of the society so as to be able to
determine,
inter
alia
,
his potential rehabilitation and moral blameworthiness.
[64]
The so-called personal profiles of the appellants, on their own,
cannot distinguish them from the cold, brutal, heartless
and
obnoxious criminals with less, if any, value for life and whom the
Legislature has identified for sending out a strong message
against
crime by enacting s51 of the Act. The profiles in question, as their
curricula vitae, only serve to identify their age,
marital and
employment status as well as school achievements but do not pull them
out of the criminal pit into which their convictions,
on the charges
involved, threw them. The said personal circumstances,
per
se
,
do not serve as substantial and compelling circumstances, nor do they
have any significant mitigatory value. Were it not for
the violation
of their respective constitutional rights to fair trial, the minimum
prescribed sentences would have, in my view,
most probably been
proportional to them and, as such, appropriate as sentences to be
imposed.
[65] In
the present matter the court has decided to exercise its limited
discretion in a downward direction in the light of the
nature of the
substantial and compelling circumstances found to exist, which relate
to violation of fundamental rights. The aforegoing
prevails because
of the high premium which this court places, as it is supposed to, on
the Constitution, as the supreme law, and
the Bill of Rights
enshrined in it.
[66] The
appellants are young men who reached high school and had no family
responsibilities, as at the time of the commission of
the offences,
because they had no children and were not married. They could, thus,
appreciate the full moral repugnancy of their
evil and dastardly
deeds, among others.
[67] In
the circumstances twenty five years imprisonment for murder and
eleven years for robbery are, in my view, appropriate for
each of the
appellants. Even under the common law the courts generally impose
these kind of sentences in similar circumstances.
[68] In
respect of possession of a firearm in contravention of the provisions
of the Arms and Ammunition Act of 1969 three years
imprisonment is
appropriate for the second appellant.
[69
] The
parties are in agreement that it would be appropriate for the
sentences in respect of murder and robbery to run concurrently
so as
to temper the cumulative effect of the sentences herein. The court
agrees with these sentiments in the light of the fact
that the
offences were committed at about the same time and one, probably, as
a means for achieving the objective of the other.
ORDER:
[
70] In
the premises the following order is made:
70.1
AD
THE FIRST APPELLANT:
70.1.1 The
appeal succeeds in part;
70.1.2 The
sentence imposed in respect of murder is confirmed,
viz
twenty
five years imprisonment;
70.1.3 The
sentence imposed in respect of robbery with aggravating circumstances
is hereby set aside and in its place the following
is substituted:
“1. Accused
no 3 is sentenced to eleven years on count 2,
viz
robbery
with aggravating circumstances.
2. Six
years in respect of count 2 is hereby directed to run concurrently
with the sentence in respect of count 1,
viz
murder
with the result that the effective prison sentence to be served by
accused no 3 is thirty years.”
70.1.4
This
sentence is antedated to run with effect from the date on which he
was originally sentenced,
viz
26
October 2001.
AD
THE
SECOND APPELLANT:
70
.2.1 The
appeal succeeds
in
toto
with the result that the sentences imposed in respect of all the
counts are hereby set aside and replaced with the following:
“1. Accused
no 2 is sentenced to twenty five years imprisonment on count 1,
viz
murder;
2. Eleven
years in respect of count 2,
viz
robbery with aggravating circumstances.
3. Three
years imprisonment in respect of possession of a firearm in
contravention of section 2 of the Arms and Ammunition Act
of 1969;
4. Six
years of the eleven year prison term imposed in respect of count 2 is
hereby directed to run concurrently with the sentence
imposed in
respect of murder with the result that the effective imprisonment
sentence to be served by accused no. 2 is thirty three
years.”
70.2.2
The
said sentences are antedated to start running from 26 October 2001
viz
the
date on which the accused was initially sentenced.
______________
L.J. LEKALE, AJ
I concur.
____________
KRUGER, J
I concur.
____________
VAN ZYL, J
On
behalf of
appellants: Adv.
R.J. Nkhahle
Instructed
by:
Justice Centre –
Bloemfontein
113 St Andrew
Street BLOEMFONTEIN
On
behalf of respondent: Adv. F. Pienaar
Instructed by:
The
Director of Public Prosecutions
BLOEMFONTEIN
/sp