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2024
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[2024] ZAKZPHC 107
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Sibisi and Another v S (AR171/20) [2024] ZAKZPHC 107 (11 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO: AR171/20
In the matter between:
SENZO
SHOMPOLO SIBISI
FIRST APPELLANT
BONGINKOSI
ZIQUBU
SECOND
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
On
appeal from:
the High Court of South Africa, KwaZulu-Natal
Division, Pietermaritzburg, per Radebe J (sitting as court of
first instance):
1.
The first and second appellants’ appeals against the sentences
imposed
is upheld.
2.
The sentences of the court
a quo
are set aside and replaced
with the following:
In respect of the first
appellant:
2.1 in
respect of the count of murder, the accused is sentenced to 25 years’
imprisonment;
2.2 in
respect of the count of robbery with aggravating circumstances the
accused is sentenced to 15 years’
imprisonment;
2.3 the
sentence imposed on count 2 will run concurrently with that imposed
on count 1.
In respect of the second
appellant:
2.4 in
respect of the count of murder, the accused is sentenced to 25 years’
imprisonment;
2.5 in
respect of the count of robbery with aggravating circumstances the
accused is sentenced to 15 years’
imprisonment;
2.6 the
sentence imposed on count 2 will run concurrently with that imposed
on count 1.
3.
Such sentences are ante-dated to 24
February 2014.
JUDGMENT
Henriques J (M E Nkosi
J and M Tucker AJ concurring)
Introduction
[1]
This is an appeal by the first and second
appellants against their sentences imposed by the court
a
quo
on 24 February 2014 pursuant to
their convictions of murder and robbery with aggravating
circumstances on 30 January 2014. Leave
to appeal against the
sentences imposed only having been granted by the court
a
quo
on 24 February 2014.
[2]
It
is common cause that the provisions of the Criminal Law Amendment
Act
[1]
(the CLAA) also known as
the minimum sentencing legislation applied to their convictions. In
respect of both counts they were convicted
on the basis of common
purpose, the court
a
quo
finding that the respondent discharged the onus of establishing that
the appellants acted in furtherance of a common purpose at
the time
of the commission of the respective offences.
[3]
Mr
Barnard
who appeared on behalf of the first appellant, submitted that the
court
a quo
erred
in finding that the first appellant had failed to show the existence
of substantial and compelling circumstances allowing
for a deviation
from the prescribed minimum sentences. He submitted in particular
that the court ought to have found the following
factors cumulatively
amounted to substantial and compelling circumstances namely:
(a)
that the first appellant had no previous convictions, was a first
offender and had no pending
cases;
(b)
he was 28 years old at the time of the commission of the offences and
was employed at the time
of his arrest;
(c)
he was a father of two minor children; and
(d)
had spent four years in custody awaiting trial given his arrest in
August 2010.
[4]
In addition, he submitted that the court
a
quo
in considering the triad of
Zinn
failed to take into account that the murder was not planned or
premeditated “but the appellant by chance stumbled across
the
deceased when he had been parked in his vehicle.” Although he
concedes that a lengthy time of imprisonment was warranted
the
ultimate sentence of life imprisonment he submits, given the facts,
was not warranted. In addition, no information had been
placed before
the court that the first appellant was not a good candidate for
rehabilitation.
[5]
The
main thrust of the first appellant’s appeal also relates to the
fact that the time spent in custody awaiting trial was
not considered
having regard to the decisions in
S
v Vilakazi
[2]
and
Director
of Public Prosecutions, North Gauteng: Pretoria v Gcwala and
Others.
[3]
He submits that cumulatively the personal circumstances of the first
appellant coupled with the time spent in custody warrants
interference with the sentences imposed by the court
a
quo.
[6]
The second appellant represented by Mr
Pillay
,
submits that the court
a quo
committed a misdirection in failing
to find substantial and compelling circumstances to exist having
regard to the second appellant’s
young and tender age, he being
18 years and eight months old at the time of the offence, a first
offender and that he had been
in custody for three years and six
months given his arrest in August 2010. He submitted in addition that
the probation officer’s
suggestion that the second appellant
suffered from post-traumatic stress disorder coupled with the
recommendation of correctional
supervision given his unfortunate
personal circumstances namely that his parents had passed away when
he was at a young and tender
age warranted a deviation from the
prescribed minimum sentence.
[7]
Mr
Magwaza
who
appeared for the respondent submitted that the court
a
quo
did not commit a misdirection
and was correct in concluding no substantial and compelling
circumstances existed given the serious
nature of the offences and
the circumstances under which they were committed. To a large extent
he submitted that there were aggravating
factors which warranted the
imposition of the prescribed minimum sentences.
The
judgment of the court
a quo
[8]
The following circumstances were placed before
the court at the time it gave consideration to the imposition of the
appropriate
sentences:
(a)
The first appellant was 28 years old, had completed standard seven,
was employed as a taxi driver
earning R500 per week, had no previous
convictions, was a first offender, was a father to three children
aged 13, 11 and eight
years old and had been in custody since 2010.
(b)
The second appellant was 23 years old at the time of sentence
although he was 18 years and eight
months old at the time of the
commission of the offences, was unmarried with no children and had
been in custody since 2010 as
well.
[9]
At the instance of the court a
quo
a probation officer’s report
was obtained in respect of the second appellant and the probation
officer testified. Regrettably
neither the full report of the
probation officer nor the evidence of the probation officer has been
incorporated into the record
and all this court can have regard to is
certain pages of the probation officer’s report which confirms
the unfortunate circumstances
of the second appellant. The
recommendation of the probation officer is that of correctional
supervision.
[10]
The
court
a
quo
appears
to have considered the probation officer’s report and the
evidence given by the probation officer but does not appear
to have
been persuaded to follow such recommendations and it was of the view
that the probation officer had not had the benefit
of hearing the
evidence given during the course of the trial relating to the
circumstances under which the offences had been committed.
It is
trite that the sentencing court is not bound by any recommendations
of the probation officer.
[4]
[11]
Apart from the submissions made from the bar by
the first and second appellants’ attorneys of record, the court
a quo
also considered the evidence of the deceased’s father in
aggravation of sentence. It was of the view that the youthfulness
of
the appellants was a motivation for the crime but that neither one of
them had displayed any remorse. What the court found particularly
aggravating was that despite his youthfulness the second appellant
actively played a role in the stabbing of the deceased during
the
robbery and eventually the murder of the deceased.
[12]
Having regard to the evidence presented, it was
the second appellant who was the aggressor and who took the knife and
stabbed the
deceased whilst he sat in the vehicle even after he had
been injured from the initial stab wounds which had been inflicted.
It
was the second appellant who took a lighter and set the vehicle
alight. It is common cause that the court
a
quo
relied on the evidence of two s
204 witnesses who were present at the time the robbery and murder
took place and who it regarded
as testifying frankly and honestly
thereby discharging them from prosecution.
[13]
The court
a quo
when sentencing the appellants was aware that the starting point was
the prescribed minimum sentences and further that it had the
discretion to deviate from the imposition of such sentences if it
found substantial and compelling circumstances to exist. The
court
had regard to the personal circumstances of both the appellants at
the time of sentencing. In addition, the court was alive
to the fact
that it had to individualise the sentences when making a decision to
impose an appropriate sentence and had regard
to the triad of
Zinn
and specifically the personal
circumstances of the appellants.
[14]
The court
a quo
also took into account what motivated the appellants to commit the
offences and took a dim view that both the appellants persisted
in
their denial of the roles that they played in the commission of the
offences and did not display any remorse. It was alive to
the fact
that it had to find a balance between the recognised objectives of
sentencing as well as the interests of society.
[15]
It also considered the aggravating
circumstances under which the offences were committed and that the
appellants displayed a lack
of compassion for the deceased. Radebe J
took into account the fact that the first appellant was “sly
and manipulative”
having regard to the evidence presented by
all the witnesses in the court
a quo:
That he was dangerous and feared in
the community and was a factor which she considered when sentencing
him and also that whilst
in custody attempts were made to interfere
with witnesses who would incriminate him in the offences specifically
his co-accused
as well as the s 204 witnesses.
[16]
The court
a quo
was of the view that the second
appellant was “a brutal and heinous killer” and that
there was nothing in his background
to suggest that this would have
caused him to commit the offences. The appellants were motivated by
greed when they made a decision
to rob and subsequently kill the
deceased. In determining whether there were any prospects of the
appellants being rehabilitated,
the court was of the view that this
was up to the Department of Correctional Services to determine after
the appellants had served
some period of their sentences. It took the
view that there were no substantial and compelling circumstances and
that because the
actions of the appellants were brutal and merciless
the prescribed minimum sentences were the only appropriate sentences
to be
imposed. The court imposed the prescribed minimum sentences and
the sentence on count 2 would have been served concurrently with
that
of life imprisonment imposed on count 1.
[17]
Although
the imposition of sentence falls pre-eminently within the discretion
of the sentencing court, a court on appeal can interfere
with it in
circumstances where the proceedings are vitiated by an irregularity,
where there is a misdirection, and in circumstances
where the
sentence imposed was disturbingly, and startlingly inappropriate.
[5]
[18]
In my view, the basis upon which the appeal
ought to succeed relates to the misdirection committed by the
court
a quo,
firstly in imposing the
prescribed minimum sentence on the basis that the facts justified the
imposition thereof and secondly,
its failure to find that substantial
and compelling circumstances existed; alternatively, in failing to
find, given the circumstances
of this particular case, that the
imposition of the prescribed minimum sentence would be
disproportionate having regard to the
triad of
Zinn
and given the time both appellants
had spent in custody. As a consequence of these misdirections this
court is entitled to impose
sentence afresh.
[19]
It is trite that the court
a
quo
can deviate from the prescribed
minimum sentences if to impose them would be disproportionate having
regard to the triad of
Zinn.
In
this particular matter in my view the court committed a misdirection
in failing to take into account the period of time
which both
appellants spent awaiting trial prior to their conviction and
sentencing. The judgment on sentence was silent in this
regard. The
court summarised this as one of the factors submitted in mitigation
of sentence but does not appear to have taken it
into account in its
reasoning when sentencing appellants.
[20]
Having regard to the judgment in
Vilakazi
at paragraph 60 the Supreme Court of
Appeal (SCA) held:
‘…
While
good reason might exist for denying bail to a person who is charged
with a serious crime it seems to me that if he or she
is not promptly
brought to trial it would be most unjust if the period of
imprisonment while awaiting trial is not then brought
to account in
any custodial sentence that is imposed.
’
[21]
The period spent in custody awaiting trial has
subsequently been considered as a factor which must be considered by
a court to deviate
from the prescribed minimum sentence as was
confirmed by the SCA in
DPP, North
Gauteng: Pretoria
at paragraph 28
where the court held the following:
‘
I
have already indicated that the four-year period spent by the
respondents in custody awaiting trial must be regarded as a factor
that requires this court to deviate from the prescribed sentence;
life imprisonment is not proportionate to the crime in
the
circumstances…
’
[22]
In my view given that the time spent in custody
was not a factor considered by the court
a
quo
when imposing the sentences this
court ought to intervene.
Order
[23]
In the result t
he following orders will issue:
1.
The first and second appellants’ appeals against the sentences
imposed
is upheld.
2.
The sentences of the court
a quo
are set aside and replaced
with the following:
In respect of the first
appellant:
in
respect of the count of murder, the accused is sentenced to 25
years’ imprisonment;
in
respect of the count of robbery with aggravating circumstances the
accused is sentenced to 15 years’ imprisonment;
the
sentence imposed on count 2 will run concurrently with that imposed
on count 1.
In respect of the second
appellant:
in
respect of the count of murder, the accused is sentenced to 25
years’ imprisonment;
in
respect of the count of robbery with aggravating circumstances the
accused is sentenced to 15 years’ imprisonment;
the
sentence imposed on count 2 will run concurrently with that imposed
on count 1.
3.
Such sentences are ante-dated to 24 February 2014.
Henriques
J
Case
Information
Date
of Argument:
3
May 2024
Date
of Judgment:
For
the First Appellant:
Mr L
Barnard
For
the Second Appellant:
Mr T
P Pillay
Legal
Aid
The
Marine Building
22
Dorothy Nyembe Street
Durban
Email:
ThiagrajP@legal-aid.co.za
For
the Respondent:
Mr D
S Magwaza
Instructed
by:
DPP
286
Pietermaritz Street
Pietermaritzburg
Tel:
033 845 4485
Email:
Dmagwaza@npa.gov.za
[1]
Criminal
Law Amendment Act 105 of 1997
.
[2]
S
v Vilakazi
2009
(1) SACR 552
(SCA) para 60.
[3]
Director
of Public Prosecutions, North Gauteng: Pretoria v Gcwala
and
Others
2014 (2) SACR 337
(SCA) para 28.
[4]
S v
Botes
2011
(1) SACR 439
(GNP) para 17;
Essop
v S
[2021]
ZASCA 66
para 14.
[5]
S
v Kgosimore
1999
(2) SACR 238
(SCA);
Director
of Public Prosecutions, Gauteng Division, Pretoria v DMS and
Another
2023
(2) SACR 113
(SCA
.