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2024
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[2024] ZANCHC 60
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Olivier and Another v S (Appeal) (CA&R23/23) [2024] ZANCHC 60 (5 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO:
CA&R23/23
DATE
HEARD:
20 NOVEMBER 2023
In
the matter between:
OLIVIER
,
SOLOMON
First Appellant
OLIVIER
,
THABO
Second Appellant
and
THE
STATE
Respondent
Quorum:
Lever J
et
Nxumalo, J
JUDGMENT:
APPEAL
Per
NXUMALO, J
INTRODUCTION
[1]
The appellants in these
proceedings were convicted in the Northern Cape Regional Court
(Galeshewe) on the following counts: (a)
robbery with aggravating
circumstances; and (b) kidnapping. Both counts are to be read with
the provisions of
section 51(2)
of the
Criminal
Law Amendment
Act
105 of 1997
.
[1]
They were
subsequently sentenced as follows, on 19 March 2021:
Count
1
,
first appellant was sentenced to 20-years imprisonment and second
appellant to 15-years.
Count
2
, both
appellants were sentenced to 5-years imprisonment each. Consequently,
both appellants were declared unfit to possess firearms
in terms of
section 103
(1) of the
Firearms Control Act 60 of 2000
.
[2]
The appellants thereafter on 05 July 2021, unsuccessfully applied for
leave to appeal
against both their respective convictions and
sentences. They then directed a petition to the Judge President, who
granted them
leave to appeal both their convictions and sentences on
08 February 2023. The appellants were legally represented in
the
court
a quo
and remained in custody after their arrest up
until their convictions. Before this Court, they were represented by
the Legal Aid
Board of South Africa, with the necessary special power
of attorney to prosecute this appeal on their behalf.
THE
GROUNDS OF APPEAL AND RELIEF SOUGHT
[3]
The appeal is directed against the convictions and the resultant
sentences.
The relief sought by the appellants is the setting aside
of the impugned convictions, alternatively that the appeal against
the
sentences be upheld.
[4]
The grounds of appeal are that the court
a quo
erred as
follows: (a) in accepting the single evidence of the complainant in
convicting the appellants; (b) in not finding that
the count of
robbery with aggravating circumstances and the kidnapping count
amounts to a duplication of convictions; (c) in not
finding that the
appellants’ versions are reasonably possibly true; and (d) in
finding that the State has proven its case
beyond reasonable doubt,
despite the fact that the firearm of the complainant was not robbed
and he was told that he can get his
car somewhere between Warrenton
and Christiana; (e) in not finding that there are substantial and
compelling circumstances to deviate
from the prescribed minimum
sentences; and (f) in not ordering the sentences in counts 1 and 2,
to run concurrently.
[5]
The respondent, for its own part, entreated this Court to dismiss
this appeal,
on the basis that: (a) the court
a quo
was
correct in accepting the impugned evidence of the state witnesses,
especially the complainant’s version and dismissing
the
versions of the appellants as not reasonably possibly true; (b) there
is no duplication of charges in respect the charges on
which they
were convicted; and (c) there is no substantial or compelling
circumstances to deviate from the prescribed minimum sentences.
In
sum, the respondent contended that the version of the appellants on
all counts could not be reasonably possibly true, when the
evidence
is evaluated holistically.
ISSUES
FOR DETERMINATION
[6]
In the premise, the following issues ought to be determined in this
appeal.
Whether
the court a quo erred in accepting the single evidence of the
complainant in convicting the appellants
[7]
The appellants submitted
that the evidence of the complainant was not clear and satisfactory
in every material respect. The appellants
contended that the
complainant initially gave a completely different version of how the
events unfolded when he opened the case,
as opposed to his evidence
in the court
a
quo;
the
appellant’s versions in court and to the police differ
inter-alia
as follows: (a) during
his evidence-in-chief, he testified that at all material times
hereto, he was with one Lerato, and they stopped
at some open place
for him to relieve himself. As he was doing so, after alighting from
his vehicle someone came running towards
him; (b) when he saw this
person, he reached for his service pistol from the vehicle and
breeched it just before he was grabbed
by the suspects.
[2]
[8]
That the foregoing stands
in stark contrast with what he said in his statement to the police;
to wit
:
that he stopped his vehicle at some intersection, after doing so,
some unknown male persons assailed him; one of them pointed
a firearm
at him and ordered him to stop his motor vehicle at the side of the
road;
[3]
he then resisted and
wrestled with his assailants; while doing so, the assailants tried to
disarm him; a shot went off and hit
one of the attackers in the
leg.
[4]
[9]
To the contrary, in his
testimony, he stated that four suspects first demanded money from him
whilst he was in his vehicle.
One of them pointed what appeared
to be a firearm at him and instructed him to drive the vehicle and
stop somewhere in the veld.
Three of the suspects got out of
the vehicle. When he noticed that what was pointed at him was
not a real firearm, he took
his pistol from the vehicle and sought to
flee. He was grabbed by someone. He then turned around and shot
the person who
was holding him. Whilst in his statement, he stated
that they told him that he can loosen himself, which he did, during
his examination-in-chief,
he testified that it was actually one of
the suspects who untied his feet.
[5]
[10]
Whilst he testified that
one of the assailants gave his service pistol to Lerato and that when
Lerato gave the pistol to him, he
realised that the pistol’s
magazine has been removed.
[6]
To the contrary, in his statement, he stated that one of the suspects
took and removed the magazine from pistol and gave
the latter back to
him without the former.
[7]
The
appellants also pointed out that the complainant admitted to giving
an incorrect statement when he initially opened his case.
[11]
In the premise, it was submitted for the appellants that the
complainant’s
dishonesty negates his evidence and that his
testimony is not clear and satisfactory in every material aspect.
[12]
The respondent, for its
own part, maintained that the appellant’s testimony was
sufficiently treated with caution by the court
a
quo
.
That it was evidently clear from his failure to even recognise his
own superior officer, Captain Williams at the station that
he was
traumatised and emotional after the incident. The second affidavit
which he wrote himself was in all material aspects similar
to his
testimony. This Court notes that the witness actually testified that
he was grabbed and pushed to the ground and whilst
wrestling for the
service pistol, a shot went off and hit one of his assailants in the
leg.
[8]
[13]
It is settled law that in
order to succeed on appeal, an appellant must convince the appellate
court on adequate grounds that the
trial court was wrong in accepting
the evidence of an impugned witness. An appellate court will not
interfere lightly with the
findings of the court a quo. It is so
simply because the trial court is in a much better position to
evaluate the credibility and
demeanour of witnesses, whilst
testifying.
[9]
Reasonable doubt
is not sufficient to justify interference with its findings.
[10]
[14]
Whilst it is so that to
the extent that the complainant was a single witness in the court
a
quo,
his
evidence should be treated with caution. It is also so that an
accused may nevertheless be convicted of any offence on the strength
of the evidence of any single competent witness.
[11]
In
S
v Mahlangu and Another
2011 (2) SACR 164
(SCA),
the following was stated
at paragraph 21:
“
The Court can
base its finding on the evidence of a single witness, as long as such
evidence is substantially satisfactory in every
material respect,
or
if there is corroboration.”
[12]
[15]
Despite the fact that
there are shortcomings or defects or contradictions in the
complainant’s various statements, I am satisfied
that his
ultimate testimony in the court
a
quo
was
substantially truthful. An appeal does not succeed merely because the
testimony of a particular witness is not above any criticism
however
slender.
[13]
[16]
Bearing in mind the
advantage which the trial court had of seeing, hearing and appraising
the complainant. Also bearing in mind
the corroborative evidence and
the common material facts in the complainant’s previous
statements and his testimony, I am
not convinced that the court
a
quo
erred
in accepting the evidence of the complainant in convicting the
appellants. I am fortified in this conclusion because there
is
corroboration of the material facts, regard being had to the evidence
viewed holistically.
[14]
The
next question to be considered is whether the court a quo erred in
not finding that the simultaneous conviction of the appellants
on
counts of robbery with aggravating circumstances and kidnapping
amounts to a duplication of convictions
[17]
Section 83
of the CPA, expressly permits the State, where it is
doubtful which of several offences is constituted by the facts of a
case,
to charge an accused with the commission of all or any of such
offences. The accused may also be charged with different counts in
the alternative. Such counts may be tried together. It is however
trite that in such a case, an accused may not be convicted of
all
charges if more than one charge or conviction results from the same
criminal act or transaction.
[18]
It was submitted for the appellants that regard being had to the
complainant’s
testimony, the charge of kidnapping is part and
parcel of the robbery. It was also submitted that regard being had to
the wording
of the charge sheet, with reference to the charge of
kidnapping, it is evident that both offences amount to a single
criminal transaction.
The appellants contended that the foregoing is
evinced by the fact that the aggravating factors contained in the
robbery count;
to
wit
: the taking of the vehicle and pointing
of the pistol are also contained in the impugned charge.
[19]
The charge sheet’s relevant part reads as follows:
“…
accused
did unlawfully and intentionally deprive Kingsley Nodoba of his
freedom of movement
by
means of pointing him with a pistol and taking him to a veld and
taking his motor vehicle from him.”
[15]
[20]
The respondent, for its own part, submitted that the application of
force by tying
the feet of the complainant and pointing him with a
firearm at the second scene near the shooting range was not a single
continuous
transaction of robbery that commenced and ended at the
first scene. That the former was a separate or discrete incident in
terms
of which the complainant’s freedom of movement was
restricted to enable the robbers to get medical attention for the
first
appellant and to enable others to flee.
[21]
That the robbery took
place and was completed at the first scene where the shooting took
place and the property of the complainant
taken. The robbery was
therefore no longer in progress when the appellants, together with
the complainant and one Lerato drove
to a different spot in the veld
where the victims and two of the robbers (including the second
appellant) were left.
[16]
That
at the said scene one of the robbers still had the firearm and the
complainant’s hands and feet were fastened to make
sure he was
unable to get away. That the victims spent two to three hours at that
particular spot in the veld, before regaining
their freedom.
[17]
[22]
It was also submitted for the respondent that the fact that the
complainant was deprived
of his freedom of movement after the robbery
is a clear indication that a new intent was formed to continue with
the kidnapping.
That by kidnapping the complainant, it gave the
robbers enough time to get away from Kimberley and seek medical
assistance elsewhere.
The fact that the complainant was let go
in the end, was probably due to the chaos and panic caused by the
injury sustained by
the first appellant and the fact that the vehicle
was no longer road worthy due to a burst tyre.
[23]
Whilst there is indeed no
infallible formula to determine whether in any particular case there
has been a duplication of convictions,
it is so that various tests
have been formulated by our courts in this regard. A logical point of
departure is to consider the
definition of those offences in regard
to which a possible duplication might have taken place.
[18]
Another test is to ask whether two or more acts were performed
with the same intent such that it constitutes one continuous
criminal
transaction. Yet another is to ask whether the evidence necessary to
establish one crime involves proving the other.
[19]
[24]
It is so that robbery
consists in the theft of property by intentionally using violence or
threats of violence to induce submission
to the taking of it from
another. The essential elements of robbery are theft; violence;
submission and intention. Robbery thus,
unlike theft, is not a
continuing crime. It is complete once a
contrectatio
is effected. Kidnapping
on the other hand, consists in unlawfully and intentionally depriving
a person of liberty or freedom of
movement and/or his custodians of
control.
[20]
[25]
The following can be deduced from foregoing, regard being had the
proven facts and circumstances
of this case: (a) the offence of
robbery was complete once a
contrectatio
was effected; (b)
there (are) different periods and places at which the two offences
were discretely committed; (c) the nature
of the appellants’
actions and the
acta reus
pertaining to both offences are
distinguishable; (d) the intentions of the appellants with regard to
the said offences are different;
and (e) the evidence necessary
to establish the former does not involve proving the latter. These
are important considerations
in assessing whether there has been a
duplication of convictions.
[26]
I am therefore convinced that the two offences were carried out
separately and were not
part of one operation carried out at the same
time or place. It is for these reasons, that I am satisfied that the
court
a quo
correctly convicted the appellants on separate
counts of robbery with aggravating circumstances as well as
kidnapping.
Proceeding
to the next question for consideration, being whether the court a quo
erred in not finding that the appellants’
versions are
reasonably possibly true
[27]
It is so that a court does not have to be convinced that every detail
of an accused version
is true. If the accused version is reasonably
possibly true in substance, the court is obliged to decide the matter
on the acceptance
of that version. Whilst the appellants conceded
that their versions were not free from criticism, it was contended
for them that
same cannot be said to be so improbable that it cannot
be reasonably possibly true.
[28]
The appellants’ version in sum is that they travelled all the
way from Brits and ended
camping in the said veld for days, being a
rendezvous with some person or persons for an illicit
diamond deal.
[29]
The respondent, for its own part in the main, contended that even if
the appellant’s
versions were to be true; to
wit
: that
they robbed the complainant and later decided to return his service
pistol without the magazine and to abandon his vehicle
somewhere
between Warrenton and Christiana on the N12, due to a tyre burst. The
foregoing does not mean that they did not rob the
complainant of his
vehicle, pistol and money.
[30]
The following is noteworthy and unusual with regard to the
appellants’ version:
(a) none of them mentioned the said
diamond deal in their warning statements; (b) none gave any
satisfactory explanation as to
why they needed money for fuel when
they were supposed to have had thousands of rand available for the
said deal; (c) they gave
different versions of how the shooting came
about nor could they explain why the first appellant who was shot,
was abandoned next
to a bridge instead of being taken to hospital to
receive the necessary medical treatment.
[31]
In the overall context, I too am of the opinion that regard being had
to the facts and
circumstances of this case, the appellants’
version is so improbable that it cannot reasonably possibly be true.
I therefore
find that the court
a quo
did not err in its
finding in this regard.
The
next question to be considered, is whether the court a quo erred in
finding that the State has proven its case beyond reasonable
doubt
[32]
It is trite that in
criminal proceedings, it is incumbent on the prosecution to prove its
case beyond reasonable doubt and that
a mere preponderance of
probabilities is not enough.
[21]
[33]
It was submitted in sum for the appellants that to the extent that
the complainant’s
service pistol was ultimately returned to
him, it evinces that the appellants had no intention to deprive him
permanently of same.
With regard to the robbery of the motor vehicle,
it was contended for the appellants that since the appellants
informed him of
its whereabouts, same was in fact and law also not
robbed. In the premise, it was submitted that the court
a
quo
erred in convicting the appellants of robbery of all the
items in question.
[34]
The respondent, for its own part, in sum maintained that regard being
had to the
totality of evidence and the probabilities, the
appellants’ guilt was proven beyond reasonable doubt on both
charges.
[35]
Section 1
of the
Criminal Procedure Act 51 of
1977
, for its own part, defines “aggravating circumstances”
for the purposes of robbery or attempted robbery as (i) the wielding
of a fire-arm or any other dangerous weapon; (ii) the infliction of
grievous bodily harm; or (iii) a threat to inflict grievous
bodily
harm
by the offender or an accomplice on the occasion when the
offence is committed, whether before or during or after the
commission
of the offence
.
[36]
The appellants’
contention that the mere return of the robbed items vitiates the
conviction of robbery is flawed on at least
three grounds.
First
,
the essential elements of robbery were proved beyond reasonable doubt
are theft; violence or threats of violence; submission and
intention.
Second
,
robbery, even though a form of theft, unlike theft, is not a
continuing crime. To the extent that robbery is theft accompanied
by
assault, it is complete once
contrectatio
is effected. It is
so since it involves two
acti
rei, i.e.
(a)
the taking of the property; and (b) the performance of an act of
violence upon the person of another.
[22]
[37]
I am of the opinion that the respondent proved the foregoing
essential elements of the
offence of robbery beyond reasonable
doubt.
Then,
the following question to be considered is whether the court a quo
erred in not ordering the sentences in counts 2 and 1,
to run
concurrently
[38]
It was submitted for the
appellants that the court a quo erred by not ordering that the
sentence in count 2 and 1, to run concurrently.
It is so that a court
may order sentences imposed in respect of various counts to run
concurrently. This may however only be done
if and only if the
evidence shows that the said offences are so inextricably linked in
terms of locality, time, protagonists and
seminally; the fact that
they were committed with one common intent.
[23]
[39]
As it can be deduced
above, I am of the opinion that even if the offences in question may
have had the same protagonists or committed
with one common intent,
the fact remains that they were not committed simultaneously. Nor are
they inextricably linked in terms
of the locality or time. In the
premise, I find that the court below did not err in not ordering the
said sentences to run concurrently.
[24]
The
final question for consideration is whether the court a quo erred in
not finding that there are substantial and compelling circumstances
to deviate from the prescribed minimum sentences.
[40]
Having been convicted of
robbery with aggravating circumstances and kidnapping, it is trite
that the appellants ought to have shown
that ‘substantial and
compelling circumstances’ existed which justified the
imposition of lesser sentences in terms
of
section 51(3)(a)
of the
Act. The general approach is that where a prescribed sentence is
imposed, the pertinent question of course is whether the
facts and
circumstances of the convict are indeed substantial and compelling or
not.
[25]
The first appellant
presented with the following personal circumstances at the time of
the sentencing proceedings: he was 36 years
old and unmarried and an
unemployed casual worker; he has three children aged 7, 3 and 2
years, respectively; he only completed
grade 9; he was sentenced on
19 March 2021, having been in custody since his arrest during August
2019 (he was thus in custody
awaiting trial for 1 year and 7 months);
he has two previous convictions of robbery and one of assault; and he
was on parole during
the commission of the current offences.
[41]
The second appellant, for his own part, presented with the following
personal circumstances:
he was 24 years old, unmarried with no
children; he lived with his father and sister; his mother passed away
during 2019; he left
school in grade 7 because of financial
constraints; he did casual work when the opportunity presented
itself; he was a first offender;
and he was arrested in September
2019 and sentenced on 19 March 2023 and had therefore awaited trial
in custody for approximately
3 years and five months.
[42]
Whilst the appellants conceded that the offences they are convicted
of are serious
in nature, they nevertheless enjoined this Court to
consider the following factors in mitigation: they were not in
possession of
the firearm prior to the robbery, same was taken from
the complainant and given back to him later; the complainant had not
sustained
any serious injuries; the firearm was discharged by the
complainant himself; the complainant was subsequently informed of the
whereabouts
of his vehicle.
[43]
It is trite in our law
that when it comes to sentencing, the Court has to take into account
the triad consisting of the crime, the
offender and the interests of
society, as expounded in
S
v Zinn
1969
(2) SA 537
(A) at 540G-H. The corollary of this is that punishment
should not only fit the criminal as well as the crime, but must also
be
fair to society, whilst being blended with a measure of mercy
according to the facts and circumstances of each case
.
[26]
[44]
Section 51
of Act 105 of 1997 (‘
the
minimum sentences legislation’
)
expressly
inter-alia
provides
that a conviction of robbery with aggravating circumstances or motor
vehicle “hijacking” attracts a minimum
sentence of 15
years, for a first offender; 20 years, for a second offender and 25
years, for a third or subsequent offender.
[45]
The proper approach of
appellate courts regarding sentences imposed in terms of Act 105 of
1997, is whether the facts which were
considered by the sentencing
court are indeed substantial and compelling or not.
[27]
The determinative test as to whether there are any substantial and
compelling circumstances to deviate from minimum sentences was
laid
down in
S
v Malgas
[28]
;
to
wit
:
“
If the
sentencing court on consideration of the circumstances of a
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime; the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.”
[46]
I noted several aggravating circumstances pertaining to the
appellants; inter-alia
: the appellants travelled all the way from
Brits to commit the said offences; they were dressed in dark clothing
and balaclavas
and hid away in the veld, for days waiting for
unsuspecting members of the public to rob; this robbery was
accompanied by the assault
of the complainant and unlawfully and
intentionally depriving him of liberty of movement; the appellants
acted with common purpose;
the robbery was planned and premeditated;
both offences involved a motor vehicle and a firearm; and the
complainant sustained some
injuries and was traumatised after the
events.
[47]
It is so that robbery, by its very nature is a
more serious crime than the sum total of its parts.
The
minimum sentences prescribed, according to Act 105 of 1997, for
robbery with aggravating circumstances, are a clear indication
that
the Legislature deemed this a very serious offence.
It
is punished in terms of Act 105 of 1997, precisely because it
jeopardises public security generally and the freedom of the security
of person and property in particular.
[48]
The risk to life and limb involved in the robbers’
traditional reliance upon weapons to induce fear in their victims
adds
to the society's abhorrence to this type of crime. It is
therefore imperative for our communities to be protected from heinous
offences such as the one the appellants have been convicted of.
Robbers induce a greater sense of fear in the public than the
ordinary
thief or confidence trickster. They display greater
ruthlessness that enables them to callously and openly use violence
or terror
to induce their victims to submit to the taking of their
property.
[49]
In
S v Myute and Others
1985 (2) SA 61
(CK) at 62D –
F, the following remark was made:
“
Magistrates
should never lose sight of the fact that robbery is a most serious
crime. The offence consists of the two elements
of violence and
dishonesty. Normally an individual can avoid situations which
lead to violence and the danger of his being
assaulted by taking the
necessary precautionary measures. Similarly, he can take steps
to guard against his property being
stolen. It is, however, a
different matter when it comes to robbery. The victim cannot
take precautions against robbery.
In his day-to-day living he
visits friends, goes to work and goes shopping. This is usually
when robbers strike. Robbers
often roam the townships in gangs,
attacking innocent people, depriving them of their property and
almost invariably injuring the
victims, sometimes seriously.
The persons robbed are more often than not women or elderly people
who cannot defend themselves.
It must also be remembered that
robbery is always a deliberately planned crime.”
[50]
In the
S
v Gardener and Another
;
[29]
it
was aptly stated as follows that:
“
[68] True
justice can only be meted out by one who is properly informed and
objective. Members of the community, no matter how closely
involved
with the crime, the victim or the criminal, will never possess either
sufficient comprehension of or insight into what
is relevant, or the
objectivity to analyse and reconcile them, as fair sentencing
requires. That is why public or private indignation
can be no more
than one factor in the equation which adds up to a proper sentence
and why a court, in loco parentis for society,
is responsible for
working out the answer.”
[51]
The interest of the society had to be taken into
consideration. It is so that the crimes the appellants have
been convicted
of are veritable pandemic in this country, as matters
stand. In
S v WV
2013
(1) SACR 204
(GNP), the Court held the following, which is very
apposite in this appeal:
“
It is the kind
of sentence which we impose that will drive ordinary members of our
society either to have confidence or to lose
confidence in the
judicial or justice system.
The
sentences that our Courts impose when offences of this nature are
committed, should strive to ensure that people are not driven
to take
the law into their own hands, but rather to scare away would-be
offenders
.”
[30]
[52]
I
have taken the personal circumstances of the appellants into full
consideration
vis-à-vis
the seriousness of the crime. In
S
v Vilakazi
2012 (6) SA 353
(SCA) at
para 58 of its judgment, the Penultimate Court said the following:
“
In cases of
serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background
.
Once it becomes clear that the crime is deserving of a substantial
period of imprisonment the questions whether the accused
is married
or single, whether he has two children or three, whether or not he is
in employment, are in themselves largely immaterial
to what that
period should be, and those seem to me to be the kind of 'flimsy'
grounds that Malgas said should be avoided.”
[31]
[53] In
S
v Malgas
,
the following was said:
[32]
“…
those
circumstances had to be substantial and compelling. Whatever nuances
of meaning may lurk in those words, their central thrust
seems
obvious
.
The
specified sentences were not to be departed from lightly and for
flimsy reasons which could not withstand scrutiny. Speculative
hypotheses favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy
of
the policy implicit in the amending legislation, and like
considerations were equally obviously not intended to qualify as
substantial and compelling circumstances…
”
[33]
[54]
Regard being had to the seriousness of this crime, I am of the
well-considered opinion that the personal
circumstances of the
appellants by themselves necessarily recede into the background.
They seem to be the kind of flimsy
grounds that
Malgas
said should be avoided. They are because it is clear that the crime
is deserving of a substantial period of imprisonment.
[55] I
am of the opinion that given the difference in the personal
circumstances of the two appellants, the Court
a quo
clearly
was correct in differentiating between the two appellants when
sentencing them. I am also of the well-considered
opinion that
there are no substantial or compelling circumstances prevailing to
depart from the minimum sentence contemplated in
section 51
(2)(a) of
the
Criminal Law Amendment Act 105 of 1997
.
ORDER
[56]
In
the premise, I would issue the following order:
(a)
The appeal against the convictions and
sentences of the appellants are hereby dismissed.
APS
NXUMALO
Judge
of the Northern Division, Kimberley
I
concur.
LG
LEVER
Judge
of the Northern Division, Kimberley
APPEARANCES
Appellants’
Legal Representative
:
Mr H
Steynberg, Legal Aid South Africa, Kimberley
Respondent’s
Legal Representative
:
Ms CG
Jansen, Office of Director of Public Prosecutions, Northern Cape,
Kimberley
[1]
The said section expressly stipulates as follows:
“
Discretionary
minimum sentences for certain serious offences
. . .
(2)
Notwithstanding any other law but subject to subsections (3) and
(6), a regional court or a High Court shall sentence a person
who
has been convicted of an offence referred to in-
(a)
Part II
of Schedule 2, in the case of—
(i)
a first offender, to imprisonment for a period not less than 15
years;
(ii)
a second offender of any such offence, to imprisonment for a period
not less than 20 years; and
(iii)
a third or subsequent offender of any such offence, to imprisonment
for a period not less than 25 years;
(b)
Part III
of Schedule 2, in the case of –
(i)
a first offender, to imprisonment for a period not less than 10
years;
(ii)
a second offender of any such offence, to imprisonment for a period
not less than 15 years; and
(iii)
a third or subsequent offender of any such offence, to imprisonment
for a period not less than 20 years;
(c)
Part IV
of Schedule 2, in the case of—
(i)
a first offender, to imprisonment for a period not less than 5
years;
(ii)
a second offender of any such offence, to imprisonment for a period
not less than 7 years; and
(iii)
a third or subsequent offender of any such offence, to imprisonment
for a period not less than 10 years; and
(d)
Part V
of
Schedule 2, in the case of-
(i) a
first offender, to imprisonment for a period not less than 3 years;
(ii) a second
offender of any such offence, to imprisonment for a period not less
than 5 years; and
(iii) a
third or subsequent offender of any such offence, to imprisonment
for a period not less than 7 years:
Provided
that the maximum term of imprisonment that a regional court may
impose in terms of this subsection shall not exceed the
minimum term
of imprisonment that it must impose in terms of this subsection by
more than five years.”
[2]
p44, line 10 – p46, line 1, Record.
[3]
Exhibit C, p594,
ibid
.
[4]
p45, line 23 – p46, line 1,
ibid
.
[5]
p58, line 7,
ibid
.
[6]
p59,
line 12 – p60, line 3,
ibid
.
[7]
Exhibit C, p 596,
ibid
.
[8]
p45, line 23 – p46, line 1,
ibid
.
[9]
R v
Dhlumayo and Another
1948
(2) SA 677
(A) at 705.
[10]
S
v Francis
1991(1)
SACR 198 (A).
[11]
Section
208 of the Criminal Procedure Act 51 of 1977 (“the CPA”).
[12]
Emphasis
supplied.
[13]
S
v Sauls
and
Others
1981
(3) SA 172 (A).
[14]
S
v Mahalangu
(
supra
)
[15]
Emphasis
supplied.
[16]
The
second scene.
[17]
p56,
Record.
[18]
S
v Whitehead and Others
2008
(1) SACR 431
(SCA) at para 36.
[19]
S
v Maneli
[2008] ZASCA 50
;
2008
(3) All SA 155
(SCA) at para 8.
[20]
p 758 Jonathan Burchell, Principles of Criminal Law, 3
rd
Edition.
[21]
S
v Shackkell
2001
(4) SA 1
(SCA) at para 30.
[22]
S
v Moloto
1982
(1) SA 844
(A) at 850A;
S
v Salmans
[2006]
JOL 16343
(C);
see
also
S
v Dlamini
2012
(2) SACR 1
(SCA) at para 50.
[23]
S
v Mokela
2012
(1) SACR 431 (SCA).
[24]
cf
S
v Dlamini
2012
(2) SACR 1 (SCA).
[25]
S v
PB
2013
(2) SACR 533(SCA)
at 539F-G.
[26]
S
v Rabie
1975(4)
SA 855 (A).
[27]
S
v PB
2013
(2) SACR 533 (SCA).
[28]
2001
(2) SA 1222
(SCA) at para 25.
[29]
2011
(1) SACR 570 (SCA).
[30]
Emphasis
supplied.
[31]
Emphasis
supplied.
[32]
2001(1) SACR 496(SCA) at para 25.
[33]
Emphasis supplied.