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[2024] ZAKZPHC 125
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Mavundla v S (AR535/2019) [2024] ZAKZPHC 125 (23 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO.:AR535/2019
In
the matter between:
SIHLE
ZAKHELE MAVUNDLA
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
On
appeal
from
:
Richard's
Bay Regional
Court (sitting
as the court
of the first instance in terms of sentence):
1
The sentence
on counts 3 and 5 (malicious injury to property) is confirmed
2
The sentences
imposed by the regional court are set aside and replaced by the
following:
(a)
On
counts
1
,
2
and
4
(housebreaking
with
intent
to
steal
and
theft)
the
appellant
is sentenced to 3 years imprisonment in respect of each count.
(b)
On count 6
(theft out of
a motor vehicle) the appellant is sentenced to 12 months imprisonment
3
The sentence
in count 5 will run concurrently
with the
sentence in counts 1
,
2
,
3
,
4 and 6
.
4
The appellant
is therefore sentenced to undergo an effect
i
ve
term of 12 years
i
mprisonment.
5
In terms of
section 282
of the
Criminal Procedure Act 51 of 1977
the substitute
sentence is antedated to 30 August 2019
,
being the date
on which the appellant was sentenced
.
JUDGMENT
Delivered
on
:
23
August 2024
Chithi
AJ (Hadebe J concurring)
:
[1]
The
appellant
was
charged
with six
counts
,
namely
counts
1
,
2 and 4
for
housebrea
k
ing
with intent to steal and theft
,
counts 3 and 5
for malicious injury to property and count 6 for theft out of a motor
vehicle
.
The
matter was heard in the Magistrate
'
s
Court for the District of Lower Umfolozi held at Richard
'
s
Bay
.
[2]
The
three
counts
of
housebreaking
were
committed
at
or
near
Arboretum
in the
District of Lower Umfolo
z
i
on 5 December 2007, 24 December 2009
,
and 4 June
2010 respectively where an assortment of household contents with a
total estimated value of R60 000
.
00
were stolen from three different houses
.
[3]
The two counts
of malicious injury to p
r
operty
were committed
on 19 December
2010 and 25 December 2017 respectively at or near Birdswood and Wild
en Weide in the district of Lower Umfolozi.
In respect of the first
incident of malicious injury to property the appellant
i
s
alleged to have unlawfully and intentionally damaged a vehicle window
the property of or in the lawful possession of Mr Serchard
Ebersch
with intent to injure him in his property. In respect of the second
incident of malicious injury to property the appellant
is alleged to
have unlawfully and intentionally damaged the door of the house
,
the windows
and burglar gate
,
the property
of or in the lawful possession of Mr Peter Jacobus with intent to
injure him in his property
.
[4]
The last count
was that of theft out of a motor vehicle which was comm
i
tted
on or about 8 September 2017 at or near Arboretum in the District of
Lower Umfolozi where the accused is alleged to
have
unlawfully and intentionally stolen 1 JVC car stereo with an
estimated value of R1400 the property of o
r
in the lawful
possession of Mr Muzi Msane
.
[5]
There was a
time delay between the commission of the offences
,
the
appellant
'
s
arrest, which was on 20 March 2019
,
and his
prosecution
.
This delay was
contributed by the fact that the appellant could not be traced until
he was traced and linked to the offences through
his fingerprints.
[6]
On 3 July 2019
the appellant pleaded guilty to all six counts and was accordingly
found guilty as charged of all six counts
.
[7]
After the
appellant was found guilty the respondent proved a catalogue of
previous convictions against the appellant
,
including 17
previous convictions for housebreaking with intent to steal and
theft
.
[8]
In view of the
appellant's previous convictions the district court then stopped the
proceedings
and referred
the matter to the Regional
Court in
Richards
Bay in terms
of s 116(1)(b) of the Criminal Procedure Act 51 of 1977 (
'
the
CPA
'
)
.
[9]
On 30 August
2019
,
after
the regional court had satisfied itself that the proceedings in the
district court were in accordance with justice
,
it proceeded
to sentence the appellant. The appellant was sentenced to 5 years
imprisonment for each count of housebreaking
,
2 years
imprisonment for each count of malicious
injury to
property and 3 years imprisonment for theft out of a motor vehicle
.
The appellant
was thus sentenced to an effective sentence of 22 years imprisonment
,
which he was
required to serve consecutively
.
[10]
The appellant appeals
to
this
court only against his sentence
,
having been
granted leave to appeal by the regional court on 3 October 2019
.
[11]
The
appellant's
appeal is
premised primarily on the basis that:
(a)
The
regional court
over-emphasised the
prevalence of
the offence
and interests of society to th
e
detriment of
the appellant.
(b)
The regional
court erred in not considering that the appellant pleaded guilty to
all the six counts
,
and that four
counts are for offences that were committed nine years before
the appellant
was sentenced
.
[12]
The
appellant's grounds of appeal were further buttressed in the
appellant's heads of argument as follows:
(a)
The regional
court misdirected
itself
in
over-emphasising the seriousness
of the
offence
and failing to strike a judicious balance with regards to all the
sentencing factors.
(b)
The regional
court erred in failing to apply the provisions of s 280 of the CPA
particularly in losing sight of the fact that when
dealing with
multiple offences an aggregate penalty must not be unduly severe
.
[13]
Before
considering
the
grounds
upon
which
the
appellant
seeks
to
assail
his sentence
the convenient starting point
is
the
appellant's criminal record which triggered the
referral of
the case
to
the regional
court for sentencing
.
The
appellant's criminal record
is
as follows:
(a)
The appellant
was first convicted of housebreaking
on 31 December
2006
,
which
he committed on 21 April 2006. He was then sentenced to 3 months
imprisonment.
(b)
On 31 December
2008
,
he was
convicted
for
housebreaking
.
The date of
the
commission of this offence is recorded incorrectly on the appellant
'
s
criminal record as 27 April 2012
.
However
,
if the cas
number 286/01/2008 as reflected on the appellant's criminal record is
considered
,
this offence
must have been committed in January 2008 as opposed to 27 April 2012
.
The
appellant
was
sentenced
in
respect
of
this
offence
to
3
years
imprisonment.
(c)
On
31 December
2009,
the
appellant
was
convicted
of theft,
which
was committed
on
18
June
2009
and
he
was
sentenced
to
3
months
imprisonment.
(d)
On 4 January
2011, the appellant was conv
i
cted
of housebreaking which was committed on 24 July 2010
,
and he was
sentenced to 18 months imprisonment.
(e)
On 1 June
2011, the appellant was convicted of housebreaking which was
committed on 28 August 2007 and he was sentenced to 3 years
imprisonment of which 1 year was wholly suspended for 5 years on
condition that the appellant was not convicted of a similar offence.
(f)
On 12 November
2012
,
the appellant
was convicted of housebreaking
and
malicious
injury to property
,
which was
committed on 12 June 2012
,
and he was
sentenced to 3 years imprisonment w
i
th
both counts being taken as one for purposes of sentence
.
(g)
On 20 January
2014
,
the
appellant was convicted of two counts of housebreaking and one count
of malicious injury to property which was committed on
8 March 2006
.
The appellant
was sentenced to 3 years imprisonment in respect of each count of
housebreaking with the sentences ordered to run
concurrently and was
cautioned and discharged for malicious injury to property
.
(h)
On 19 February
2014
,
the
appellant was convicted of two counts of housebreaking
,
which were
committed on 28 April 2012 and he was sentenced to 3 years
imprisonment in respect of each count with the sentences ordered
to
run concurrently with the sentence
,
wh
ic
h
the appellant was serving at the time as set out in sub-para (g)
above
.
[14]
Ms
Citera
,
on behalf
of the appellant, argued that the cumulat
i
ve
sentence of 22 years imprisonment induces a sense of shock warranting
interference
by this court
.
She further
argued that taking into account the cumulative effect of the
sentence
,
an
appropriate sentence in the c
i
rcumstan
c
es
would be an effective sentence of 10 years
.
[15]
Mr
Radyn
,
on
behalf
of
the
respondent
,
relying
on
S
v
Ngculu
[1]
argued
that
a
sentence of 22 years imprisonment was appropriate and would
effectively punish the appellant and
,
importantly
w
i
ll
cater for society
'
s
outrage at such conduct
,
lest
we create the impression
,
unwittingly
that owners whose property has been stolen may take the law into
their own hands with impun
i
ty
.'
In
addition
,
Mr
Radyn
relied
on
Dials
v
S
[2]
where
a sentence of 12 years imprisonment for three counts of house
breaking was confirmed on appeal. Mr
Radyn
argued
that a sentence of 22 years impr
i
sonment
was appropriate considering that the appellant
,
apart
from the three counts of housebreaking with intent to steal and theft
was also convicted of two counts of malicious injury
to property and
one count of theft
.
Moreover
,
the
appellant had a series of related previous convictions
.
[16]
Before
imposing the sentence, which the appellant seeks to assail, the
regional magistrate considered various factors that included
the
seriousness of the offences and their prevalence within the court
'
s
area of jurisdiction
.
The court
further considered the fact that the offences were premeditated in
that they were committed during the day or over the
weekend when the
homeowners were away
.
Furthermore
,
the court
considered the nature of the items which were stolen
,
being high end
technical equipment including TV
'
s
,
cameras
,
laptops
,
electric
kettles and radios and the value of such items. In relation to the
appellant's personal circumstances
,
the court
considered that the appellant was 48 years of age
.
He was
unemployed
.
However
,
from time to
t
i
me
he would be casually employed at Richards Bay Harbour to clean ships
and earned between R400 -
R500. He was
not married and he had two minor children and one major child
.
While the
major child lived with his mother
,
the minor
children lived with the appellant. He pleaded gu
i
lty
to the offences
.
However
,
in relation to
the appellant having pleaded guilty she remarked that while this
could be indicative of remorse
,
this could
also have been tr
i
ggered
by the overwhelming evidence in the form of fingerprint evidence
which linked him to the offences.
[17]
It is trite that sentencing discretion resides pre-eminently
with
the trial court
.
in
S
v Malgas
[3]
Marais
JA enunciated the
test
as
follows
:
'
A
court exercising appellate jurisdiction cannot
,
in the absence
of material misdirection b
y
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 d
i
scretion
of the trial court
.
Where material
misdirection by the tr
i
al
court v
i
tiates
its e
x
ercise
of that discretion
,
an appellate
Court
i
s
of course entitled to consider the question of sentence afresh
.
In doing so,
i
t
assesses sentence as if it were a court of first instance and the
sentence
i
mposed
by the trial court has no relevance
.
As it is said
,
an appellate
Court is at large
.
However
,
even in the
absence of material m
i
sdirect
i
on
,
an appellate
court may yet be justified in
i
nterfering
w
i
th
the sentence imposed by the trial court. It may do so when the
disparity between the sentence of the tr
i
al
court and the sentence which the appellate Court would have imposed
had it been the trial court
i
s
so marked that it can properly be described as
"
shoc
k
ing
",
"
startling
"
or
"
disturbingly
inappropriate
".'
[18]
Before passing sentence
,
the regional
magistrate correctly recited the well
established
principles in relation to sentencing
.
The regional
magistrate remarked that she would consider the main object
i
ves
of punishment namely retr
i
bution
,
prevent
i
on
,
deterrence
,
and
rehab
i
litation
.
She further
took into consideration the traditional triad comprising of the
crime
,
the
offender/accused as well as the interests of society
.
She also
considered the interests of the victims
.
Moreover
,
the regional
magistrate
reemphas
i
sed
correctly in my view that punishment must fit the crim
i
nal
as well as the cr
i
me
,
be fa
i
r
to society and be blended with a measure
of mercy
.
However
,
this is not
manifested in the ultimate sentence which she imposed
.
[19]
In assessing what would be an appropriate sentence the regional
magistrate specifically remarked that
'
you
had received a max
i
mum
term of imprisonment in
the distr
i
ct
court and even that did not deter you
.
There are
clearly no
prospects of
rehabilitation
when it comes to
you
seeing
that
you have
made it your
career to
break into
other person's homes and
motor
vehicles. You are a danger to society
.
'
[20]
The remarks by
the regional magistrate in paragraph 19 above appear to be the reason
why the
regional
magistrate
imposed an effective term of 22 years imprisonment upon the
appellant.
[21]
I agree that
the offences of which the appellant was convicted are undoubtedly
serious and warrant a serious punishment. I further
agree that the
series of the appellant's related previous convictions, as the
regional magistrate correctly concluded
,
constituted an
aggravating factor. Housebreaking
on its own
does not only constitute an invasion of the sanctity of the person's
home, but also the right to the security of a person
and the right to
privacy.
[22]
Moreover,
I
agree
that
when
offences
are
committed
at
different
places
and
different times it may well be inappropriate to order sentences to
run concurrently.
[4]
However
,
this
consideration on its own cannot justify the regional magistrate
'
s
failure to consider the cumulative effect of the number of years of
imprisonment
,
which
she imposed on the appellant.
After
all it was the
'[regional]
court's
duty to take the cumulative effect into account as part of the
sentencing decision as a whole, so as to prevent the offender
undergoing an unjustifiably severe sentence'.
[5]
In
any event it is trite that while
'
the
practice of taking more than one count together for the purposes of
sentence is not sanctioned, it is equally not prohibited
'.
[6]
[23]
In
my view the regional magistrate materially misdirected herself by
ignoring the cumulative effect of the sentence.
An
affective sentence of 22 years imprisonment in the circumstances of
the case is disproportionally harsh and induces a sense of
shock.
S
v Dube
held
that
'
[t]he
test is trite -where the cumulative effect of a number
of
sentences
strikes
one
as
excessive
,
appellate
interference
is
warranted.
[7]
.Therefore
,
in
the
circumstances
of
this matter
,
this
court is at large to interfere with the sentence
.
[24]
It
is true that retribution and deterrence is required to come to the
fore in serious crimes and the rehabilitation of the offender
to play
a relatively smaller role.
[8]
However
,
while
the previous convictions of the appellant might be demonstrative that
he was less open to rehabilitation it is trite that
'
the
determination of an appropriate sentence cannot be simply based on
the accused
'
s
previous convictions
.
Put
differently
,
an
accused person should not be punished for the pat sins or
indiscretions
.'
[9]
One
final factor while it is not individually decisive especially when
the appellant is likely to be sentenced to a long-term
sentence
of imprisonment
,
which
the regional court did not consider as part of its balancing
exercise, is the fact that the appellant spent four months in
prison
awaiting his trial.
[25]
Considering
all the relevant factors, including the fact that the appellant spent
four months awaiting trial and given his age at
the time he was
sentenced there remains a possibility that with age he may mend his
ways
.
In
respect of counts 1
,
2 and 4 a
sentence of five years imprisonment is not proportionate to the
offences. Instead, a sentence of 3 years imprisonment
in respect of
each count is the one which would be appropriate
.
In respect of
count 6 the appellant merely forced the door of the motor vehicle
open and did not break the door itself or a window.
He only stole
from the vehicle a JVC radio, which was worth R1 400
.
00
.
A sentence of
3 years imprisonment in respect of count 6 was disproportionate to
the offence and, in my view, an appropriate sentence
is a sentence of
12 months imprisonment in respect of count 6
.
[26]
In the circumstances
,
I am of the
view
,
that
a sentence of 12 years imprisonment
,
which I
propose below
,
would satisfy
the aims of punishment
,
would be fair
to society
,
the
victims
and
would
still
leave
the
door
open
to
the
possibility
of
the
appellant
being
rehabilitated
,
no matter how
slender the chances might be
.
[27]
In the result
I make the following order
:
(1)
The sentence on counts 3 and 5 (malicious
injury to property) is
confirmed
(2)
The sentences imposed by the regional court
are set aside and replaced by the following:
(a)
On
counts
1,
2
and
4
(housebreaking
with
intent
to
steal
and
theft)
the appellant is sentenced to 3 years
imprisonment in respect of each count.
(b)
On count 6 (theft out of a motor
vehicle) the appellant is sentenced to 12
months imprisonment
(3)
The sentence in count 5 will run
concurrently
with
the sentence
in
counts 1, 2, 3, 4 and 6.
(4)
The
appellant
is
therefore
sentenced
to
undergo
an
effective
term
of 12 years imprisonment.
(5)
In terms
of
section
282
of the
Criminal
Procedure
Act
51 of 1977
the substitute
sentence is antedated to
30 August 2019, being the date on which the appellant was sentenced.
CHITHI
AJ
I
agree
HADEBE
J
APPEARANCES
Counsel
for the Appellant: Ms P
.
M
.
Citera
Instructed
by
:
Pietermaritzburg
Justice Centre
Counsel
for the Respondent: Mr
.
A. Radyn
Instructed
by:
OPP
(
KwaZulu
-
Natal
)
Dated
of hearing
:
14 June 2024
Date
of Judgment:
23
August 2024
[1]
Ngculu
v The State
(2015]
ZASCA 184 para 18.
[2]
Dials
v
S
(2013] ZAGPPHC 539.
[3]
S
v
M
a
/
gas
20
01
(
1
)
S
A
C
R
4
6
9
(S
CA
)
p
a
r
a
1
2
[4]
S
v Kruger2012
(1
)
SACR
369
(SCA)
para
9.
[5]
S
v
Wi/lemse
2022
(1)
SACR
43
(WCC)
para
28.
[6]
Jacobs
and
another
v
S
[2023)
ZANWHC
60
para
69;
S
v
Imme/man
1978
(3)
SA
726
(A)
at 728D - 729A.
[7]
S
v
Dube
2012
(2) SACR
57
9
(ECG] para 1
1.
[8]
S
v
S
wart
2
0
04
(2
)
SACR
370
(SCA
)
para
12
.
[9]
S
v
M
a
phenya
[2024]
ZAWCHC 6
7
para
8
.