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[2019] ZASCA 154
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Mbulelo v S (148/2019) [2019] ZASCA 154 (26 November 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 148/2019
In
the matter between:
MALANGABI
MBULELO
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Mbulelo v The State
(148/2019)
[2019] ZASCA 154
(26 November 2019)
Coram:
Navsa, Saldulker, Swain and Dlodlo JJA and Eksteen AJA
Heard:
14 November 2019
Delivered:
26 November 2019
Summary:
Criminal law – sentence - application for leave to appeal
refused by regional court – petition subsequently refused by
the high court – whether petition correctly refused.
ORDER
On
appeal from:
Gauteng Local Division of the High Court,
Johannesburg (Khampepe and Tshabalala JJ sitting as court of appeal):
The
appeal against the refusal of the application for leave to appeal in
respect of the sentence imposed on the appellant is refused.
JUDGMENT
Saldulker
JA (Navsa, Swain and Dlodlo JJA and Eksteen AJA concurring):
[1]
The appellant, Mr Malangabi Mbulelo, was charged in the Regional
Court, Johannesburg with two counts of robbery with aggravating
circumstances in relation to two incidents, (count one and count
three), kidnapping (count two), attempted murder (count four)
and the
unlawful possession of a firearm (count five) and ammunition (count
six). On 21 November 2007 the regional court magistrate,
convicted
the appellant on all counts and sentenced him to 15 years’
imprisonment on each count of robbery with aggravating
circumstances
(count one and count three), four years on the kidnapping charge and
four years in relation to the attempted murder
count. He was
sentenced to three years' imprisonment for the unlawful possession of
a firearm and two years on the unlawful possession
of ammunition. It
was ordered that the sentences in relation to the kidnapping,
attempted murder and the unlawful possession of
a firearm and
ammunition counts (counts 2, 4, 5 and 6) run concurrently with count
one, the count of robbery with aggravating circumstances,
resulting
in an effective sentence of 30 years’ imprisonment.
[2]
On 18
December 2008, the appellant’s application for leave to appeal
against his conviction and sentence was refused by the
regional
court. Aggrieved, the appellant petitioned the Gauteng Local
Division, Johannesburg (the high court) for leave to appeal
his
conviction and sentence. This was also refused on 16 March 2009
(Khampepe and Tshabalala JJ). Subsequently, this court granted
the
appellant special leave to appeal against the refusal of his petition
only in respect of sentence.
[1]
I now turn to deal with the details of the offences in question.
[3]
On 1 September 2005, while an employee of Telkom was fixing Telkom
lines in the course of his employment, in the area of Phiri,
Soweto,
the appellant, accompanied by another person, confronted the
technician at gunpoint and robbed him of his Telkom bakkie,
a white
Mazda. The complainant was roughly manhandled and forced into the
bakkie by the appellant and his cohort, and later dropped
off a short
distance away from where the hijacking took place. Thereafter they
drove away with the Telkom bakkie. These were the
facts on which the
first count was based.
[4]
The following day, 2 September 2005, in Jeppe, Johannesburg, and
while travelling in the aforesaid stolen Telkom bakkie, armed
with
unlicenced firearms, the appellant, together with another person,
confronted the occupants of a Coin Security van which had
stopped
behind them. During the incident, the passenger in the van attempted
to disarm one of the assailants, and in the process
gunshots were
fired. The complainant managed to flee, and jumped into the Telkom
bakkie and drove off. Upon discovering that there
was a firearm in
the vehicle, he returned to the scene approximately three minutes
later, and found that the van was gone. The
complainant subsequently
realised that he had sustained an injury to his shoulder as a result
of the shots being fired. The van
was later found abandoned. The
police, upon following a trail of blood from the van, found the
appellant lying in a trench amongst
refuse bags, near a railway
track. The appellant who was injured and in possession of a firearm
was apprehended.
These
were the facts that led to the conviction on count 3.
[5]
Before us, counsel for the appellant submitted that there were
substantial and compelling circumstances in relation to count
one,
which the regional court had failed to take into account. These, he
submitted, were the relative youthfulness of the appellant,
that he
was a first offender and that he had spent two years and two months
in custody awaiting the finalisation of his trial.
With regard to
count three, counsel for the appellant was rightly constrained to
argue that there were no substantial and compelling
circumstances.
However, he contended that the regional court had failed to properly
take into account the cumulative effect of
the sentences imposed, and
ought to have taken into account the time spent by the appellant in
custody, awaiting the finalisation
of the trial, and that, at the
very least, a portion of the sentence imposed on count 3 ought to
have run concurrently with the
sentence imposed on count one, even
though they were committed at different places and different times.
In this regard, he relied
on a judgment of this court in
S v
Kruger
[2011] ZASCA 219
;
2012 (1) SACR 369
(SCA) at 372 para 9
where the following was said:
‘
The
trial as well as the high court reasoned that it was inappropriate to
order the sentences to run concurrently because the offences
were
committed at different places and on different times. While this may
be a consideration, it cannot justify a failure to factor
in the
cumulative effect of the ultimate number of years imposed. I believe
that a sentencing court ought to tirelessly balance
the mitigating
and aggravating factors in order to reach an appropriate sentence.
’
[6]
In my view,
whilst I agree with the principles laid down in
S
v Kruger
,
and endorse the sentiments expressed by this court therein, it is not
particularly helpful in this matter. In
Kruger
,
the appellant was convicted of four counts of housebreaking with
intent to steal and theft, robbery, theft and contravening s
36 of
the General Law Amendment Act 62 of 1955.
[2]
He was effectively sentenced to 26 years’ imprisonment. The
robbery was essentially the snatching of a handbag, with minimal
violence, and not the kind of violence involved in the present case.
This court held that there was no doubt that all of the offences
forming the subject matter of
Kruger
’s
appeal were not of a violent or heinous character. This court took
into account that the appellant had spent more than
three years
awaiting the finalisation of his trial, and considered it appropriate
to factor in this period in mitigation of the
cumulative effect of
the sentences. He was eventually sentenced to a term of 13 years'
imprisonment.
[7]
In contrast, the aggravating features of the offences committed by
the appellant in this matter in broad daylight were serious,
violent
and heinous. Armed with a firearm in two major busy urban areas,
Soweto and Jeppe, the appellant and his cohort brazenly
attacked
unsuspecting people and robbed them of their vehicles at gunpoint.
The day after the first hijacking, they targeted a
security van,
armed yet again with lethal weapons in Jeppe, a busy hub near the
train station, using the Telkom bakkie they had
hijacked on the
previous day. Both robberies were executed with firearms, clearly
indicating that the appellant foresaw the potential
of encountering
resistance. The attack on a Telkom employee going about his business
as well as on the Coin security van were both
cowardly and brazen,
and displayed a blatant disregard for the law. In the latter attack,
count 3, both the appellant and the complainant
were shot and
injured. This is a far cry from just snatching a handbag. The
reliance on
Kruger
is therefore misplaced.
[8]
Both the hijacking incidents on counts one and three attracted a
prescribed minimum sentence of 15 years’ imprisonment
in terms
of the Criminal Law Amendment Act 107 of 1997 (as amended), unless
there were substantial and compelling circumstances
justifying a
deviation therefrom. The regional court in its judgment on sentence
took into account, the age of the appellant, that
he was a first
offender and the time he had spent in custody awaiting the
finalisation of his trial. It also took into account
the seriousness
and the prevalence of these violent crimes in urban areas, and that
society demanded that offenders of such crimes
be severely punished.
The regional court had regard to both the aggravating and mitigating
factors, taking into account the period
awaiting trial and ordered
that the sentences that were imposed on the kidnapping, attempted
murder and the unlawful possession
of a firearm and ammunition counts
run concurrently with the sentence on count one. Even though count
five, which was for the unlawful
possession of a semi-automatic
firearm, and ought to have attracted the minimum prescribed sentence
of 15 years’ imprisonment,
the regional court sentenced the
appellant on that count to three years’ imprisonment.
[9]
The
aggravating features of the offences committed by the appellant
cannot be ignored. The legislature prompted by its electorate,
ordained minimum sentences as set out in
S
v Malgas
,
[3]
unless there were substantial and compelling circumstances so as to
justify a deviation from the prescribed minimum sentence. Both
counts
one and three carried the prescribed minimum sentence, and the
regional court correctly concluded that there were no substantial
and
compelling circumstances present justifying a departure. The criminal
matters that come before this court almost every term
as well as the
applications for leave to appeal that are received reflect the
prevalence of violent crimes that this country is
besieged with.
Robberies accompanied by violence are rife in the major metropoles as
is evident from the matters that come before
this court. The
prevalence is real.
[10]
As alluded to above, the minimum sentences legislation was introduced
by the legislature to address the rising levels of criminality
in
this country. Furthermore, in
S v Matyityi
[2010] ZASCA 127
;
2011 (1) SACR 40
(SCA);
[2010] 2 All SA 424
(SCA) para 23, Ponnan JA
decried the escalation in crime and stated:
‘
Despite
certain limited successes there has been no real let-up in the crime
pandemic that engulfs our country. The situation continues
to be
alarming. It follows that, to borrow from
Malgas,
it still is ‘no longer
business as usual’. And yet one notices all too frequently a
willingness on the part of sentencing
courts to deviate from the
minimum sentences prescribed by the legislature for the flimsiest of
reasons – reasons, as here,
that do not survive scrutiny. As
Malgas
makes
plain courts have a duty, despite any personal doubts about the
efficacy of the policy or personal aversion to it, to implement
those
sentences. . . Here parliament has spoken. It has ordained minimum
sentences for certain specified offences. Courts are obliged
to
impose those sentences unless there are truly convincing reasons for
departing from them. Courts are not free to subvert the
will of the
legislature by resort to vague, ill-defined concepts such as
‘relative youthfulness’ or other equally vague
and
ill-founded hypotheses that appear to fit the particular sentencing
officer’s personal notion of fairness. . . . ’
[11]
It is clear from the judgment on
sentence that the regional court took into account that the appellant
had spent over two years
in custody awaiting his trial.
In
the circumstances of this case,
the
effective sentence of 30 years’ imprisonment does not appear to
be shockingly inappropriate, nor is
the
cumulative effect of the sentence on counts one and three unduly
harsh.
There are no reasonable prospects
that another court will come to a different conclusion. Accordingly
the special leave to appeal
against the refusal of the petition must
fail.
[12]
In the result, the following order is made:
The
appeal against the refusal of the application for leave to appeal in
respect of the sentence imposed on the appellant is refused.
___________________
H
K Saldulker
Judge
of Appeal
APPEARANCES
For
Appellant: W A Karam
Instructed
by: Legal Aid South Africa, Johannesburg Legal Aid South Africa,
Bloemfontein
For
Respondent: F Mohamed
Instructed
by: Director of Public Prosecutions, Johannesburg Director of Public
Prosecutions, Bloemfontein
[1]
S v Matshona
[2008] ZASCA 58
;
2013 (2) SACR 126
(SCA); S v Khoasasa
2003 (1) SACR 123
(SCA) para 19.
[2]
‘Failure to give a satisfactory account of possession of goods
Any
person who is found in possession of any goods, other than stock or
produce as defined in section one of the Stock Theft Act,
1959 (Act
57 of 1959), in regard to which there is reasonable suspicion that
they have been stolen and is unable to give a satisfactory
account
of such possession, shall be guilty of an offence and liable on
conviction to the penalties which may be imposed on a
conviction of
theft.’
[3]
S v Malgas
2001 (2) SA 1222
(SCA) paras 8 and 34.