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[2008] ZAWCHC 208
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Mkangashe and Another v S (A615/2007) [2008] ZAWCHC 208 (23 May 2008)
[N
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO
;
A615/2007
DATE
:
23
MAY 2008
In
the matter between:
ASHLEY
MKANGASHE
1
st
Appellant
ALFRED
MZAZI
2
nd
Appellant
and
THE
STATE
JUDGMENT
H
J ERASMUS, J
[1]
The appellants were arraigned before the Regional Court in Wynberg
on the following charges:
Murder
Robbery
with aggravating circumstances
Attempted
murder
Unlawful
possession of a firearm
Unlawful
possession of ammunition
The
appellants pleaded not guilty to all the charges. On 5 December 2001
they were convicted on all the charges except in respect
of count 2
they were convicted of attempted robbery.
[2] On
7 December 2001 they were sentenced as follows:
The
first appellant on count 1, 20 years' imprisonment
On
count 2, 10 year's imprisonment
On
count 3, 10 years' imprisonment
On
counts 4 and 5 taken together for purposes of
sentence,
three years' imprisonment
It
was ordered that the sentence of 10 years' imprisonment in respect
of count 2 be served concurrently with the sentence imposed
in
respect of count 1. The effective term of imprisonment was therefore
33 years.
The
second appellant, on count 1 he was sentenced
to
15 years' imprisonment
Count
2, 10 years' imprisonment
Count
3, seven years
1
imprisonment
Counts
4 and 5, two years' imprisonment
It
was ordered that five years of the sentence in respect of count 2 be
served concurrently with the sentence imposed in respect
of count 1.
The effective term of imprisonment was therefore 29 years.
[3] The
appeal of the appellants is against sentence only. In granting the
second appellant leave to appeal against sentence, the
magistrate
stated that he had erred in sentencing the second appellant and that
after conviction he should, in terms of
section 52
of the
Criminal
Law Amendment Act 105 of 1997
have referred the matter to the High
Court for imposition of sentence. The first appellant was granted
leave to appeal against
sentence by a magistrate other than the
magistrate who had imposed the sentence on the ground that another
Court may come to a
different conclusion in regard to sentence. In
granting leave he also referred to the view expressed by the trial
magistrate that
the matter should have been referred to the High
Court for imposition of sentence.
[4] Counsel
for the appellants and the State are agreed that the appellants had
been convicted of offences which fall within
Part I
of Schedule 2 of
the
Criminal Law Amendment Act and
that after conviction the
magistrate should, in terms of
section 52
thereof, have referred the
matter to the High Court for sentence. Mr
Stamper
on behalf of the appellants submitted in his heads that the sentences
imposed on the appellants are invalid. He further submitted
that the
sentences imposed must be set aside, the appeals must be struck from
the roll and the matters be referred to a single
judge to be dealt
with in terms of
section 52
of the
Criminal Law Amendment Act.
[5
]
This was the approach adopted in
S
v SekqobeEa & Four Other Cases
2006(2) SACR 309 {W}. Ms
van
der Merwe
.
who appeared on behalf of the State, submitted that this approach is
no longer possible in view of the provisions of the
Criminal Law
(Sentencing) Amendment Act 38 of 2007
which came into operation on 31
December 2007. This Act repeals
sections 52
,
52A
and
52B
of the
Criminal Law Amendment Act and
inserts a new
section 53A
as a
transitional provision. The section provides as follows:
"If
a Regional Court has, prior to the date of the commencement of the
Criminal Law (Sentencing) Amendment Act 2007
:
(a) committed
an accused for sentence by a High Court under this Act
r
the High
Court
must
dispose of the matter as if the
Criminal Law (Sentencing) Amendment
Act 2007
had not been passed; or
(b) not
committed an accused for sentence by a High Court under this Act then
the Regional Court must dispose of the matter in terms
of this Act as
amended by the Criminal Law (Sentencing) Amendment Act 2007".
[6]
Ms
van
der Merwe
further submitted that although this Court is entitted to set the
sentences aside and refer the matter back to the Court a
quo
to
impose sentence anew, that would in the circumstances of the case not
be the appropriate course to adopt. She rightly points
out that the
appellants were sentenced more than six years ago and that all the
information necessary for a reconsideration of
the sentences is
before this Court. Moreover, referring the matter back to the
Regional Court for imposition of new sentences will
further delay the
final disposal of the matter.
[7]
Ms
van
der Merwe
accordingly submitted that this Court should set the sentences
imposed by the magistrate aside and impose appropriate sentences.
In
this regard she referred to the powers of the Court under section 22
of the Supreme Court Act 59 of 1959 and sections 304(2)
and 309(3) of
the Criminal Procedure Act 51 of 1977, Thus section 22(b) of the
Supreme Court Act provides that a division of a
High Court hearing an
appeal shall have the power "to confirm, amend or set aside the
judgment or order which is the subject
of the appeal and to give any
judgment or to make any order which the circumstances may require".
[8]
In my view, the interests of justice require this Court to set the
sentences imposed by the magistrate aside and impose appropriate
sentences. It would be a senseless exercise in futility to remit the
matter to the magistrate who imposed sentences that will almost
inevitably again come before this Court on appeal. (See
S
v Shamatla
2004(2)
SACR 507 (E) at 573a-h;
Erskine
v S
2007(3) Ail SA at 241 (C). The interests of the two appellants would
be best served by dealing now and here with the substance
of their
appeals against the sentences imposed upon them.
[9]
The appellants have been convicted of offences which fail within Part
I of Schedule 2 of the
Criminal Law Amendment Act in
respect whereof
imprisonment for life is prescribed in terms of
section 51(1)(b)
of
the Act. in the charge sheet the appellants were warned that "section
51 of Act 105 of 1997 is applicable" to the
charges of murder
and robbery with aggravating circumstances. The appellants were
legally represented at the trial. From the record
it is clear that
the magistrate and the legal representatives were under the
impression that the minimum sentences prescribed in
Part II of
Schedule 2 in which lesser sentences than imprisonment for life are
prescribed, were applicable, in the result the appellants
were not
pertinently alerted to the fact that conviction would bring the
provisions of Part I of Schedule 2 of the
Criminal Law Amendment Act
into
play. In the circumstances I am satisfied that it would not be
fair at this stage to subject the appellants to the provisions of
Part I
of Schedule 2.
[10]
Ms
van
der Merwe
submitted that leaving aside the question of Jack of jurisdiction,
the sentences imposed were proper given the nature of the offences
and that this Court should impose similar sentences. Mr
Stamper
submitted
that the sentences are excessive. He submitted that both appellants
were convicted of attempted robbery and that no injury
was caused in
the attempted murder. He further stressed that the role of the second
appellant was less than that of the first appellant.
In his judgment
on sentence the magistrate has taken into consideration every
relevant consideration, including the lesser role
of the second
appellant. The sentences imposed in respect of the different offences
cannot be faulted. The magistrate clearly had
the cumulative effect
of the sentences in mind when he took some of the sentences together
for purposes of sentence and ordered
other sentences to be served
concurrently.
[11]
My concern is whether, despite the gravity of the offences, the
cumulative effect of the sentence nevertheless remains too
harsh. The
underlying idea is that the total sentence imposed should be in
proportion to the total blameworthiness of the offender
(
S
v
Mpofu
1985(4)
SA 322 (ZHC) at 324G-J; Terblanche:
A
Guide to Sentencing in South Africa
204-205). This is achieved arbitrarily reducing the total sentence to
or produce a reasonable result (
R
v Abdullah
1956(2) SA 295 AD at 300A).
[12]
In my view, in the case of the first appellant, 30 years'
imprisonment would be appropriate. This can be achieved by ordering
the sentence of 10 years' imprisonment on count 1 and the sentence of
three years
3
imprisonment
on counts 4 and 5 to be served concurrently with the sentence imposed
in respect of count 1.
[13]
In the case of second appellant, a total sentence of 22 years would
be appropriate. This can be achieved by
1
and the sentence of two years' imprisonment on counts 4 and 5 to be
served concurrently with the sentence in respect of count
1.
[14]
In the result, the following orders are made:
1. The
sentences imposed by the magistrate on the first and second
appellants are set aside and replaced by the following sentences:
2.
First
appellant (Ashley Mkangashe)
Count
1: 20 years' imprisonment Count 2: 10 years' imprisonment Count 3:
10 years' imprisonment
Counts
4 and 5: Three years' imprisonment It is ordered that the sentence of
10 years' imprisonment in respect of count 2 and the
sentence of
three years' imprisonment in respect of counts 4 and 5 be served
concurrently with the sentence imposed in respect
of countl.
The
effective term of imprisonment is therefore 30 years'.
3.
The
second appellant (Alfred Mzazil
Count
1: 15 years' imprisonment
Count
1: 15 years' imprisonment Count 2: 10 years' imprisonment Count 3:
seven years
1
imprisonment Counts 4 and 5: two years' imprisonment It is ordered
that the sentence of 10 years' imprisonment in respect of count
2 and
the sentence of two years' imprisonment in respect of
counts 4 and 5 be served concurrently with
the sentence
imposed in respect of count 1.
The
effective term of imprisonment is therefore 22 years.
4.
The sentences imposed by this Court are in terms of section 282 of
the Criminal Procedure Act 51 of 177, antedated to 7 December
2001.
H J ERASMUS, J
BRUSSER,
AJ
:
I agree.
BRUSSER,
A J
1