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2024
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[2024] ZAKZPHC 89
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Ngcobo v S (AR388/2023) [2024] ZAKZPHC 89 (18 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
AR388/2023
In
the matter between:
EDMUND
LUCKY NGCOBO
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
Radebe J and Mossop J
Heard:
18 October 2024
Delivered:
18 October 2024
ORDER
On appeal from:
Pietermaritzburg Regional Court (sitting as the court of first
instance):
1.
The appeal against sentence is dismissed.
2.
The appellant’s bail is revoked, and
he is ordered to report to the Inchanga Police Station within 48
hours of the handing
down of this judgment to commence serving his
sentence.
3.
For the assistance of the Inchanga South
African Police Services (SAPS), the relevant CAS Number is 96/01/2015
and the investigating
officer was Warrant Officer de Wet.
4.
If the appellant does not report to the
Inchanga Police Station as directed, the SAPS are directed to
forthwith arrest him for that
purpose.
5.
To the extent that paragraph 2 of this
order conflicts with the order of the regional magistrate when
admitting the appellant to
bail on 25 July 2022, this order
supersedes the order of the regional magistrate.
JUDGMENT
MOSSOP
J
(RADEBE J concurring):
[1]
The appellant was one of two men charged with the rather
unusual offence of stealing a steamroller. To be more precise and
technically
correct, it was a Bomag compaction roller, but I shall
continue to refer to it as ‘the steamroller’.
This
was not a steamroller that is driven: it is, instead, a steamroller
with long extension handles that is controlled by an operator
on the
ground who holds onto the handles and directs its operation. It had a
value of approximately R100 000.
[2]
The
appellant stood trial in the Pietermaritzburg Regional Court, sitting
at Camperdown, together with one of his co-accused. A
third accused
was at large at the time when the appellant’s trial commenced,
and the absent accused’s trial was consequently
separated from
the appellant and his co-accused’s trial. Both the appellant
and his co-accused pleaded not guilty. They were,
however, found
guilty and the appellant was sentenced on 1 March 2022 to four years’
imprisonment. He was forthwith committed
to prison to commence
serving that sentence.
[1]
Approximately five months later, on
25
July 2022, he sought leave from the trial court to appeal against his
sentence only, which application was granted. He simultaneously
sought, and was granted, bail pending his appeal. His appeal against
the sentence imposed upon him is therefore now before us.
[3]
While we are not called upon to consider
the appellant’s conviction, we must consider the facts as a
whole to gain a sense
of whether the sentence imposed upon the
appellant was just and appropriate.
[4]
One may legitimately ask: how does someone
steal a steamroller? They are big, heavy, traditionally slow moving
and noisy pieces
of machinery. And this one was painted bright
yellow. It consequently stood out. The theft was, however, carried
out quite simply
and efficiently.
[5]
A group of men, of whom the appellant was
one, went to SM Building Contractors in Pietermaritzburg (SMBC),
which is an establishment
that, inter alia, hires out heavy duty
construction machinery, such as steamrollers. Mr Justin Minnis (Mr
Minnis) initially attended
to the group of men. To hire the
steamroller, a deposit of R650 had to be paid and one of the persons
hiring the steamroller had
to leave behind his identity document as
security while the steamroller was under hire. One of the group paid
the deposit with
real money. Unlike the money, the identity document
handed over was not real. It was a fake, created that very day for
this specific
transaction. The formalities having been satisfied, Mr
Minnis then arranged for the steamroller to be delivered that day to
a building
site in Cato Ridge. The arrangement was that Mr Minnis
would have the steamroller collected from that building site the next
morning.
When Mr Minnis’s representative returned the next
morning to the building site, the steamroller was no longer there.
That,
in a nutshell, is how one steals a steamroller. The steamroller
was recovered in Hammarsdale about two weeks later and it was found
to still be in a functional state.
[6]
In my view, there was sufficient evidence
adduced at his trial to warrant the conviction of the appellant. That
evidence largely
came from the testimony of another member of the
group of men who carried out the theft, who testified in terms of the
provisions
of s 204 of the Criminal Procedure Act 51 of 1977 (the
Act). The appellant apparently acknowledges that he is, indeed,
guilty,
for he did not seek leave to challenge his conviction.
[7]
The
focus of the appellant’s case before us is accordingly the
sentence that was imposed upon him. The test to be applied
where the
issue is the sentence imposed on an appellant was clarified in
S
v Malgas
[2]
to be:
‘
Where
material misdirection by the trial court vitiates its exercise of
that discretion, an appellate Court is of course entitled
to consider
the question of sentence afresh. In doing so, it assesses sentence as
if it were a court of first instance …
However, even in the
absence of material misdirection, an appellate court may yet be
justified in interfering with the sentence
imposed by the trial
court. It may do so when the disparity between the sentence of the
trial court and the sentence which the
appellate Court would have
imposed had it been the trial court is so marked that it can properly
be described as “shocking”,
“startling” or
“disturbingly inappropriate”.’
[8]
It was argued by Ms Barnard, who appears
for the appellant, that the sentence of four years’
imprisonment imposed by the regional
magistrate was harsh and evoked
a sense of shock. It was also argued that the regional magistrate
misdirected himself in the following
respects:
(a)
A sentence of correctional supervision in
terms of the provisions of s 276(1)
(h)
of the Act was recommended by a
correctional services officer, and was supported by the State, but
was not imposed by the court;
(b)
He failed to attach sufficient weight to
the fact that the appellant was 50 years old, and a first offender,
who ran a scrap yard
and utilised the earnings therefrom to support
his family;
(c)
He over-emphasised the principle of general
deterrence and the interests of society;
(d)
He failed to consider the views of the
probation officer and did not explain why he was not inclined to
follow the recommendations
of that witness or the correctional
services officer; and
(e)
He concluded that a term of direct
imprisonment was the appropriate sentence to be imposed without
considering other sentencing
options, including suspending any
sentence that he determined to be appropriate.
[9]
As may be expected, the State disputes all
these criticisms of the regional magistrate. It asserts that the
imposition of sentence
is a matter that falls entirely within the
discretion of the regional magistrate presiding at the trial. It
further submits that
the regional magistrate considered all the
relevant issues at play when crafting the appropriate sentence for
the appellant. In
so doing, the regional magistrate did not misdirect
himself and this court is therefore not at liberty to intervene in
the proceedings.
In conclusion, the State submits that the appeal
must consequently fail.
[10]
There is no gainsaying the fact that this
was a considered and well-planned crime. Prior to the steamroller
being stolen, evidence
was led at the appellant’s trial that an
attempt was made to obtain a steamroller from another hiring outlet
that ultimately
came to nothing when the machine to be supplied was
found to be defective. Rather than call a halt to the intended
criminal enterprise,
the appellant and his cohorts simply shifted
their attention to SMBC. They anticipated that an identity document
would be demanded
and retained to obtain possession of the
steamroller. Thus, a fake identity document was manufactured and
handed over. There was
no intention to recover it from SMBC. The
theft was thus not a spur of the moment decision but was a deliberate
attempt to permanently
deprive SMBC of the steamroller, which was to
be sold once it was under the group’s control. After delivery
of the steamroller
to the building site was achieved, further
transport was needed to move it from there to Hammarsdale. All this
required planning.
[11]
As regards the grounds raised by the
appellant in support of his appeal:
(a)
It is so that a correctional services
officer indicated that correctional supervision in terms of s
276(1)
(h)
of the Act was a possibility. The State also acknowledged that. But
the court was not obliged to fall in line and simply rubber
stamp
that sentencing alternative.
The
imposing of sentence requires an objective analysis of a range of
options available to the court. The court
was
entitled to apply an independent mind to all the facts of the matter
and the sentencing options at its disposal before deciding
on the
appropriate option. The court declined to follow the recommendation.
In my view, it was entitled to do so;
(b)
The regional magistrate acknowledged the
accused’s age and the business that he conducted. He did not
ignore it, as has been
submitted. But he concluded that these
considerations did not mean that the appellant would not be liable to
a period of imprisonment
given the seriousness of the offence. I am
not able to find an error in this line of reasoning;
(c)
The regional magistrate did mention the
need to deter other like-minded offenders. But, in my view, he did
not over-emphasise this
aspect;
(d)
The views of the probation officer were
mentioned and considered but were not followed. The regional
magistrate provided brief reasons
for not following those
recommendations. Those reasons included:
‘…
the
circumstances of the crime, its prevalence and the interests of
society…’;
(e)
Finally, the criticism that other
sentencing options were not considered by the regional magistrate is
misplaced. He specifically
mentioned that:
‘
The
Court is satisfied that wholly suspended imprisonment or any form of
correctional supervision will amount to overemphasising
your
individual personal circumstances.’
[12]
An
appeal such as this is not intended to constitute a rehearing of the
original trial. For any relief to be granted by an appeal
court,
there must be evidence of a
demonstrable
and material misdirection by the trial court or, where a discretion
exists, that such discretion has not been exercised
properly or
judicially. In the absence of such proof, an appeal court has no
right to interfere. The power of the appeal court
is consequently
very limited.
[3]
Thus:
‘
[i]n
the absence of demonstrable and material misdirection by the trial
Court, its findings of fact are presumed to be correct and
will only
be disregarded if the recorded evidence shows them to be clearly
wrong.’
[4]
As
was confirmed in
Malgas
:
[5]
‘
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court.’
[13]
The
judgment of the regional magistrate on sentence is concise but
thorough, notwithstanding its brevity. It addresses all the essential
aspects that must occupy the mind of a judicial officer when sentence
is considered and imposed. The State is, furthermore, correct
in its
submission that the issue of sentence is a matter that falls
peculiarly within the discretion of the judicial official.
[6]
[14]
In casu, the sentence that the trial court
imposed may not have been a sentence that I personally may have
imposed, but that does
not mean, for the reasons already explained,
that this court is entitled to summarily intervene and change it. I
am not able to
conclude that the regional magistrate misdirected
himself. The sentence, whilst robust, does not induce a sense of
shock, given
the known circumstances of the offence. Had the
appellant been convicted, for example, of the theft of a motor
vehicle with the
equivalent value of the steamroller, the sentence
imposed may have been considered lenient, even for a first offender.
[15]
In the circumstances, I would propose that
the following order be granted:
1.
The appeal against sentence is dismissed.
2.
The appellant’s bail is revoked, and
he is ordered to report to the Inchanga Police Station within 48
hours of the handing
down of this judgment to commence serving his
sentence.
3.
For the assistance of the Inchanga South
African Police Services (SAPS), the relevant CAS Number is 96/01/2015
and the investigating
officer was Warrant Officer de Wet.
4.
If the appellant does not report to the
Inchanga Police Station as directed, the SAPS are directed to
forthwith arrest him for that
purpose.
5.
To the extent that paragraph 2 of this
order conflicts with the order of the regional magistrate when
admitting the appellant to
bail on 25 July 2022, this order
supersedes the order of the regional magistrate.
MOSSOP J
I
agree and it is so ordered:
RADEBE
J
APPEARANCES
Counsel
for the appellant:
Ms D.
Barnard
Instructed
by:
Counsel
for the respondent:
Mr T.
L. Mlondo
Instructed
by:
Director
of Public Prosecutions
Pietermaritzburg
[1]
The
appellant’s co-accused was sentenced to six years’
imprisonment. The differentiation in the sentence imposed upon
him
and the appellant appears to be based upon his admitted criminal
history.
[2]
S
v Malgas
2001
(1) SACR 469
(SCA) para 12 (‘
Malgas
’).
[3]
S
v Monyane and others
2008 (1) SACR 543
(SCA) para 15.
[4]
S
v Hadebe and others
1998 (1) SACR 422
(SCA) at 426B-C.
[5]
Malgas
para
12.
[6]
S
v Bogaards
[2012]
ZACC 23
;
2013 (1) SACR 1
(CC) para 41.