About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2024
>>
[2024] ZAKZPHC 69
|
|
Mvuna v S (AR 283/23) [2024] ZAKZPHC 69 (23 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR 283/23
In
the matter between:
SIMUKELO
ERNEST MVUNA
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
On
appeal from
the KwaZulu-Natal, Southern Circuit, Local Division,
per Hurt J (sitting as court of first instance)
1.
The appellant’s appeal against the sentence imposed in respect
of count 1 succeeds.
2.
The sentences imposed on counts 2, 3, 4 and 5 are confirmed.
3.
The sentence imposed in respect of count 1 is set aside and replaced
with the following:
‘
In respect of
count 1, the accused is sentenced to 20 years imprisonment.’
4.
The sentence is antedated to 9 December 2005.
5.
The sentences imposed in respect of counts 2, 3, 4 and 5 are to run
concurrently with the
sentence imposed in respect of count 1.
6.
The effective term of imprisonment is 20 years.
JUDGEMENT
E
Bezuidenhout J (Mngadi J and Marion AJ concurring)
[1]
The appellant was convicted of one count of murder, one count of
robbery with aggravating circumstances
as defined in
section 1
of the
Criminal Procedure Act 51 of 1977
, one count of theft, one count of
unlawful possession of a firearm and one count of unlawful possession
of ammunition on 8 December
2005.
[2]
On 9 December 2005 the appellant was sentenced to life imprisonment
on count one, 15 years imprisonment
on count two, 3 years
imprisonment on count three and 3 years imprisonment on counts four
and five. Counts four and five were taken
together for the purpose of
sentence.
[3]
On the same day, the appellant applied for leave to appeal against
both conviction and sentence,
which application was refused.
[4]
It is common cause that the entire record of the proceedings, save
for the judgments on conviction
and sentence, cannot be
reconstructed. We were informed that the compact discs containing the
record of the proceedings was only
found in a carton box together
with other discs a substantial period after the trial had been
concluded and after many previously
unsuccessful searches. The
compact discs had deteriorated to such an extent that transcription
was impossible. The trial judge
had in the meantime retired, had no
notes available and was too sickly to attempt a reconstruction. The
proceedings in respect
of the application for leave to appeal were
also unavailable. An attempt was made by Van Zyl J to reconstruct at
least the application
for leave to appeal and the court’s
judgment therein to enable the appellant to petition the Supreme
Court of Appeal for
leave to appeal.
[5]
On 9 March 2021, Van Zyl J gave a short judgment after hearing
evidence from the erstwhile prosecutor
as well as the appellant’s
counsel in the trial and found that it was not possible to
reconstruct the reasons for the judgment
for the refusal of leave to
appeal.
[6]
The appellant filed his petition application with the Supreme Court
of Appeal on 21 April 2022,
seeking leave to appeal against his
sentence as well as condonation for the late filing of the
application. At this stage, the
appellant had already served 17 years
in prison. It appears that the appellant and his family have
struggled over many years to
obtain the record of the proceedings,
but to no avail. On 14 July 2022, the Supreme Court of Appeal issued
an order granting condonation
and granting leave to appeal to the
Full Court of the KwaZulu-Natal Division of the High Court. The order
did not state whether
it was against sentence only but it is assumed
that this was what was intended, in light of the relief sought in the
notice of
motion.
[7]
The appellant’s counsel, Mrs Anastasiou-Krause, raised a point
in limine
in her heads of argument, namely that a proper
consideration of the appeal is impossible as the record is
insufficient and that
a failure of justice has accordingly occurred.
[8]
Counsel for the appellant referred us to a number of authorities,
which I will deal with below.
Appellant’s counsel submitted
that it is imperative that when considering what would be a just
sentence in the circumstances,
the court should be able to consider
the evidence of the State witnesses as well as the appellant,
especially when determining
if the sentence was disproportionate to
the facts of the case.
[9]
It was also submitted that the appellant could not have a fair appeal
when it is unknown what
was submitted in mitigation and aggravation
of sentence. It was submitted that the appellant’s conviction
and sentence cannot
stand and should be set aside.
[10]
Counsel for the State, Mrs Marais-Myeni, submitted in her heads of
argument that the record available was
sufficient to enable an
adjudication of the appeal against sentence. Before us, she however
conceded that the two available judgments
are inadequate to determine
the facts of the case or the basis and reasoning for the sentence
imposed. She furthermore agreed that
there is no indication that the
court considered any of the usual factors a sentencing court is
obliged to consider. I will return
to this point below.
[11]
The judgment on conviction by the trial court comprises six and a
half pages. It contains no discernible
description of the facts of
the matter. Reference was made to a complainant in the housebreaking
count having testified but on
this particular count the appellant was
only convicted of theft. The complainant’s evidence was not
summarised. Reference
was also made to a trial-within-a-trial during
which evidence of a confession and a pointing out by the appellant
was presented.
Both the confession and pointing were ruled to be
admissible. According to the judgment, the ‘brief reasons’
for the
ruling was given after the conclusion of the evidence in the
trial-within-a-trial, which is also not before us.
[12]
The judgment further contained a very basic summary of the evidence
of the appellant’s girlfriend,
who noted that he had a
different cell phone than what he previously had, which he informed
her, he had bought. The police subsequently
found it at her home. The
last witness whose evidence was mentioned was that of a police
witness who was a ballistic and firearm
expert, who testified about
the possibilities of a revolver being discharged ‘without the
wielder intending such a shot to
be discharged’. The purpose of
this evidence was probably to counter a version of an accidental
discharge, however, there
is nothing contained in the record that
confirms this possibility.
[13]
The court discussed the appellant’s evidence in much more
detail, concentrating on the appellant’s
evidence in respect of
how he came to making the confession and pointing out, which
according to the appellant involved severe
assaults and a gun being
held to his head. The court found that the appellant had been toying
with everyone and his contentions
were described as being ‘nonsense’.
The court also rejected as false an exculpatory statement made by the
appellant
in the confession to the effect that the firearm was
discharged accidentally.
[14]
As mentioned above, the entire judgment on conviction comprised of
six and a half pages, of which the last
four pages concentrated
almost entirely on the appellant’s case.
[15]
The judgment on sentence comprises one and a half page. The
submissions made by the appellant’s counsel
are not available.
The judgment is short enough to repeat here. It reads as follows:
‘
Yes,
stand up, please, Mr. Mvuna. Your counsel has done his very best to
persuade us that because you co-operated with the police
just after
your arrest, we should assume that you are remorseful for your
crimes. But the impression that we have gained through
this trial is
that Mr Stuart for the State is perfectly correct when he said that
you have adopted an arrogant attitude. You have
lied about the way
the police treated you. You have no compunction in accusing them of
grossly improper conduct. And you have stuck
to your lying defence,
even up to the very last stages of the trial when you tried to dupe
the advocates by taking them into Port
Shepstone to point out a shop
that does not exist.
In
your greed to get more money, you have left a man dead, who had done
nothing to you at all. And you had the nerve to walk into
another
man's house and steal his revolver when he was no more than a few
metres from his door.
In
1997, the People’s Parliament decided that the only way that it
could deal with the rash of violent crime, that had broken
out, was
to pass an Act which would contain certain mandatory sentences. The
Act provides that people who commit murder in the
course of a robbery
must be sentenced to life imprisonment, unless there are special
circumstances. The object of that Act is to
take people, who are able
to commit an offence of that type, out of the community for a very
long time, so that they could no longer
constitute a danger to
peaceful citizens.
In
addition, any person committing robbery with aggravating
circumstances in terms of the Act is obliged to serve a sentence of
15 years imprisonment unless there are special circumstances present.
Although your Council has endeavoured to persuade us that
there are
substantial and compelling circumstances present in this case, we
remain unpersuaded. Even your relative youth cannot
assist you in
this case, because we have formed a clear impression that you in fact
are not remorseful for what you have done and
that there is no
prospect of you being rehabilitated in the shorter term.’
[16]
The court referred to the minimum sentence legislation, and also to
the issue of substantial and compelling
circumstances, but no mention
is made of what those substantial and compelling circumstances were
according to the appellant’s
counsel and which were deemed
unpersuasive. Included in the bundle of documents provided to us for
the purpose of the appeal is
a copy of the indictment. It contains no
reference to the Criminal Law Amendment Act 105 of 1997 (the Act). As
there is no record
of the proceedings, it is unknown as to whether
the provisions of the Act were even brought to the attention of the
appellant before
the trial proceeded.
[17]
The courts have over time dealt extensively with the situation where
the trial record was incomplete and
could not be reconstructed.
[18]
In
S v
Collier
[1]
Burger J held as follows:
‘
I
am in respectful agreement with the practice that where the whole
record or a very material part thereof has been lost prior to
review
or the appeal being concluded, the proceedings and sentence should be
set aside. In such cases the Court of appeal or review
is clearly
unable to consider the case. But it seems to me wrong that the same
result should follow where only some answers of
a witness on matters
which are apparently not of vital importance are not recorded. . . .
In my opinion the Court of appeal should
deal with the case on the
best available record unless it appears that evidence placed before
the lower court does not appear on
the record, that such evidence is
material to the adjudication of the appeal and that the issue as to
the missing evidence cannot
be settled by way of admissions or in
some other manner. Where material evidence is not on record and the
defect cannot be cured,
the appeal should succeed.’
[19]
In
S v
Chabedi
[2]
the court held:
‘
[5]
On appeal, the record of the proceedings in the trial court is of
cardinal importance. After all, that record forms the whole
basis of
the rehearing by the Court of appeal. If the record is inadequate for
a proper consideration of the appeal, it will, as
a rule, lead to the
conviction and sentence being set aside. However, the requirement is
that the record must be adequate for proper
consideration of the
appeal; not that it must be a perfect recordal of everything that was
said at the trial. . .
[6]
The question whether defects in a record are so serious that a proper
consideration of the appeal is not possible, cannot be
answered in
the abstract. It depends,
inter alia,
on the nature of the
defects in the particular record and on the nature of the issues to
be decided on appeal.’
[20]
In
S v
Schoombee and another
[3]
the court held that ‘[i]t is long established in our criminal
jurisprudence that an accused’s right to a fair trial
encompasses the right to appeal. An adequate record of trial court
proceedings is a key component of this right.’
[4]
The court also quoted and approved what was held in
Chabedi
quoted above, in respect of the setting aside of the conviction and
sentence if the record is inadequate for a proper consideration
of
the appeal. The court further held that although an appellant has the
final responsibility to ensure that the appeal record
is in order,
the reviewing court ‘is obliged to ensure that an accused is
guaranteed the right to a fair trial, including
an adequate record on
appeal, particularly where an irregularity is apparent.’
[5]
The court however cautioned that where adjudication of an appeal on
an imperfect record will not prejudice the appellants’,
their
convictions need not be set aside solely on the basis of an error or
omission in the record or an improper reconstruction
process.
[6]
The court ultimately held that the record was ‘amply adequate
for just consideration of the issues the applicants raised
on
appeal’,
[7]
despite
serious lapses in how the record was reconstructed when the court
failed to ensure that the reconstruction process involved
both
parties.
[21]
In
Phakane
v S
[8]
the court had to determine the question as to whether the State’s
failure to deliver a complete trial record to the full
court in
circumstances where the missing evidence could not be reconstructed
had infringed the applicant’s right to a fair
appeal as
entrenched in section 35(3) of the Constitution. The appellant had
appealed against both sentence and conviction in this
matter. It
appeared that the record of the trial proceedings was available but
incomplete in that one of the main State witness’
evidence was
missing and could not be reconstructed. The full court nonetheless
proceeded to deal with the appeal, as the trial
court had not relied
solely on her evidence to convict the appellant. The full court found
that the nature of the defects in the
record were not so serious to
the point that a proper consideration of the appeal was not possible.
It dismissed the appeal against
conviction but upheld the appeal
against the sentence imposed.
[22]
Zondo J held as follows:
[9]
‘
The
failure of the State to furnish an adequate record of the trial
proceedings or a record that reflects Ms Manamela’s full
evidence before the trial court in circumstances in which the missing
evidence cannot be reconstructed has the effect of rendering
the
applicant’s right to a fair appeal nugatory or illusory. Even
before the advent of our constitutional democracy, the
law was that,
in such a case, the conviction and sentence or the entire trial
proceedings had to be set aside. In
S v Joubert
the then
Appellate Division of the Supreme Court said:
“
If during a trial
anything happens which results in prejudice to an accused of such a
nature that there has been a failure of justice,
the conviction
cannot stand. It seems to me that if something happens, affecting the
appeal, as happened in this case, which makes
a just hearing of the
appeal impossible, through no fault on the part of the appellant,
then likewise the appellant is prejudiced,
and there may be a failure
of justice. If this failure cannot be rectified, as in this case, it
seems to me that the conviction
cannot stand, because it cannot be
said that there had not been a failure of justice.”’
(footnotes omitted)
[23]
There is however one further aspect that requires discussion. The
appellant has not applied for leave to appeal
to the Supreme Court of
Appeal against his conviction. It was submitted by his counsel that
by the time they had been able to attend
to the reconstruction of the
leave to appeal record, the appellant had already served almost 17
years of his sentence and the appellant
did not see the use of
applying for leave against conviction in these circumstances, which
is perhaps understandable. In all the
cases referred to above, the
appellants were appealing against both conviction and sentence, which
lead to the setting aside of
both conviction and sentence when the
records were incomplete.
[24]
Section 322 of the Criminal Procedure Act 55 of 1977 (the CPA) deals
with the powers of a court on appeal. The
relevant portions read as
follows:
‘
(1)
In the case of an appeal against a conviction or of any question of
law reserved, the court of appeal may-
(a)
allow the appeal if it thinks that the judgment of the trial court
should be set aside on the ground of a wrong decision of any
question
of law or that on any ground there was a failure of justice; or
(b)
give such judgment as ought to have been given at the trial or
impose such punishment as ought to have been imposed at the trial;
or
(c)
make such other order as justice may require:
Provided
that, notwithstanding that the court of appeal is of opinion that any
point raised might be decided in favour of the accused,
no conviction
or sentence shall be set aside or altered by reason of any
irregularity or defect in the record or proceedings, unless
it
appears to the court of appeal that a failure of justice has in fact
resulted from such irregularity or defect.
(2)
Upon an appeal under section 316 or 316B against any sentence, the
court of appeal may confirm the sentence or may delete or
amend the
sentence and impose such punishment as ought to have been imposed at
the trial.’
[25]
It therefore appears that only when a person is appealing
against conviction, is a defect in the record, which
results in a
failure of justice, sufficient to justify the setting aside of the
conviction and sentence. The appellant’s
point
in
limine
can therefore not succeed, as we do not have the power to set aside
the conviction in the absence of the appellant having been
granted
leave to appeal against his conviction. It was held in
S
v Langa en andere
[10]
that section 322(2) of the CPA does not empower an appellate
division to accede to the request of an appellant, to whom leave
has
been granted to appeal against his sentence, to be allowed to argue
in respect of the correctness of the conviction and
to appeal
against it. As far as the appellant’s remedy is concerned, it
was suggested that the appeal could be adjourned
in order to allow an
appellant to apply for special leave or to petition the Supreme Court
of Appeal. In the present matter, bearing
in mind that the appellant
has been in custody for almost 19 years and that a further
application will only cause further delays,
I believe that we have no
option but to deal with the sentence, which we are compelled to do on
a record that is almost completely
deficient.
[26]
As far as sentence is concerned, Terblanche in
A
Guide to Sentencing in South Africa
[11]
deals with the sentencing judgment, where a court has to give reasons
for the sentence it imposes. The author states that the judicial
officer imposing sentence should provide an explanation for the
sentence he decides upon, as it has long been recognised to be
in the
interests of justice to do so and is important in the maintenance of
public confidence in the administration of justice.
[12]
In respect of the failure to refer to relevant aspects when giving
reasons the following was stated:
[13]
‘
Failure
by a sentencer to properly explain a sentencing decision can, on
appeal, be regarded as an irregularity, justifying the
setting aside
of such decision. The question is whether, if a relevant aspect is
not mentioned in the sentencing judgment, an inference
can be drawn
that the presiding officer did not consider that aspect.
The
answer to this question usually depends on the circumstances of the
case and the context of the judgment.’ (footnotes
omitted)
[27]
The author also discussed the three basic elements which a court will
consider, namely the seriousness of
the crime, which is described as
‘an extremely important ingredient of any sentence’, the
criminal, which would entail
the offender’s age, marital
status, level of education, presence of dependents, employment and
health and lastly, the interests
of society.
[14]
[28]
It is trite that a court of appeal will only interfere in a sentence
imposed if it is vitiated by an irregularity
or misdirection, or is
startlingly or shockingly inappropriate.
[29]
As mentioned above, it is clear that the indictment contained no
reference to the minimum sentence legislation
contained in the Act.
In
S v
Khoza and another
[15]
the court held as follows:
‘
The following
principles can be distilled from these judgments. As a general
rule, fair-trial rights require that an
accused person should
be informed at the outset of the trial of the provisions of the
Minimum Sentences Act (or other provisions
relating to an increased
sentencing regime) that the state intends to rely upon or which are
applicable. The accused person should
generally be so informed in the
indictment or charge-sheet; by notification by the presiding
officer or in any other manner
that effectively conveys the
applicable provisions to the accused person before or at the
commencement of the trial. This is of
particular importance when the
accused person has no legal representation. This, however, is not an
absolute rule. Each case must
be determined on its own particular
facts and circumstances, bearing in mind the oft-quoted dictum
in
S v Jaipal
[2005] ZACC 1
;
2005 (1) SACR 215
(CC)
(2005 (4)
SA 581
;
2005 (5) BCLR 423)
para 29. There it was stated that the
right to a fair trial also requires fairness to the public as
represented by the state and
this has to instill public confidence in
the criminal justice system. Substance must prevail over form. In the
final analysis,
the determination of whether fair trial rights were
infringed in these circumstances turns on the question of
prejudice to
the accused.’
[30]
We have to assume that the appellant was not informed of the
provisions of the Act at the commencement
of his trial and the issues
of the so-called minimum sentences only came to the fore once
sentence was being considered. The court
in our view committed a
misdirection by proceeding to sentence the appellant in accordance
with the Act when no such provisions
were contained in the
indictment. The court also committed an irregularity by failing to
properly explain the reasons for its sentencing
decision. On the face
of it, the court failed to pay due regard to the age of the
appellant. Although we are hamstrung by the cryptic
information
contained on the record, we assume that the appellant was a first
offender as the sentence of 15 years imprisonment
imposed in respect
of count 2 is the prescribed sentence for a first offender. The
offences were committed on 25 November and 5
December 2004
respectively. According to copies of the contents of the court file,
the appellant was in custody throughout the
trial. It appears that he
was arrested around 10 December 2004. He was therefore in custody
awaiting trial for about a year. As
mentioned above, the appellant
was 23 years old. It appears that courts have taken the youthfulness
of accused into consideration
in even the most serious of crimes.
[31]
In
S v
Mnyakeni
[16]
the two appellants were convicted of murder and robbery with
aggravating circumstances. The court found that the two appellants
committed a horrible and senseless crime. A person lost his life for
a few items with a limited value. The court considered that
the
appellants’ showed no remorse and acted in a callous manner.
However, both appellants were young men, first offenders
and lived in
poverty. The effective sentence of 35 years imprisonment was reduced
to 15 years imprisonment.
[32]
In
S v
Ditlhake
[17]
the appellants were also convicted of murder, robbery with
aggravating circumstances and possession of an unlawful firearm. The
deceased was shot and his motor vehicle, cellphone, firearm and other
items were taken and his body was dumped alongside the road.
The
sentence of life imprisonment imposed on the count of murder was
found to be excessive taking into account the youth of the
appellants. They were first offenders and aged between 21 and 27
years and had been in custody awaiting trial for two years. The
sentence was reduced to 20 years imprisonment and the sentences
imposed on the other counts were ordered to run concurrently with
it.
[28]
Bearing in mind the specific circumstances of this appeal and what
has been held above, we are accordingly
of the view that the sentence
imposed in respect of count one warrants interference. The following
order is therefore granted:
1.
The appellant’s appeal against the sentence imposed in respect
of count 1 succeeds.
2.
The sentences imposed on counts 2, 3, 4 and 5 are confirmed.
3.
The sentence imposed in respect of count 1 is set aside and replaced
with the following:
‘
In respect of
count 1, the accused is sentenced to 20 years imprisonment.’
4.
The sentence is antedated to 9 December 2005.
5.
The sentences imposed in respect of counts 2, 3, 4 and 5 are to run
concurrently with the
sentence imposed in respect of count 1.
6.
The effective term of imprisonment is 20 years.
E
Bezuidenhout J
Mngadi
J
Marion
AJ
Date
of hearing: 02 August 2024
Date
of judgment: 23 August 2024
Appearances:
On behalf of the
appellant:
Mrs Z
Anastasiou-Krause (ZinaA@legal-aid.co.za)
Instructed by:
Legal Aid South
Africa
Pietermaritzburg
Local Office
Cel no: 076 258
8321
On behalf of the
respondent:
Mrs L Marais-Myeni
(LMarais@npa.gov.za)
Instructed by:
The Director of
Public Prosecutions
Pietermaritzburg
Tel
no 033- 392 8780
Cel
no 083 286 1520
[1]
S v
Collier
1976 (2) SA 378
(CPD) at 378H-379D.
[2]
S
v Chabedi
[2005]
ZASCA 5
;
2005 (1) SACR 415
(SCA) (
Chabedi
).
[3]
S v
Schoombee and another
[2016] ZACC 50
;
2017 (2) SACR 1
(CC);
2017 (5) BCLR 572
(CC)
(
Schoombee
).
[4]
Schoombee
para
19.
[5]
Schoombee
para
21.
[6]
Schoombee
para
29.
[7]
Schoombee
para
37.
[8]
Phakane
v S
[2017] ZACC 44
(
Phakane
).
[9]
Phakane
para 38.
[10]
S
v Langa en andere
1981
(3) SA 186
(A).
[11]
SS Terblanche
Guide
to Sentencing in South Africa
3ed (2016) at 161.
[12]
Ibid
at 162.
[13]
Ibid.
[14]
Ibid
at 163-171.
[15]
S
v Khoza and another
[
2018]
ZASCA 133
;
2019
(1) SACR 251
(SCA) para 10.
[16]
S
v Manyakeni
2013
JDR 1400 (GNP).
[17]
S
v Ditlhake
2013
JDR 0991 (GNP).