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[2019] ZASCA 180
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Jangia v S (274/19) [2019] ZASCA 180 (2 December 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case No: 274/19
In the matter between:
ADILU
JANGIA
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Adilu
Jangia
v
The State
(
274/19
)
[2019] ZASCA 180
(02
December 2019)
Coram:
Cachalia, Saldulker and Mokgohloa JJA, Tsoka and Dolamo AJJA
Heard:
13 November 2019
Delivered:
02 December 2019
Summary:
Criminal Procedure – Appeal against a refusal to grant leave to
appeal on petition – appeal successful – leave
to appeal
against sentence to the high court granted.
ORDER
On
appeal from
:
1.
The application for leave to appeal is upheld.
2.
The order of the High Court refusing leave to appeal is set aside and
replaced with the following:
‘
Leave to appeal to the Gauteng
Division of the High Court is granted.’
JUDGMENT
Dolamo
AJA (Cachalia, Saldulker and Mokgohloa JJA, Tsoka AJA concurring):
[1]
This is an appeal against the refusal by the Gauteng Division of the
High Court Johannesburg
(the high court), of a petition in terms of
section 309C of the Criminal Procedure Act 51 of 1977 (the CPA), for
leave to appeal
against a magistrate’s refusal to grant leave
to appeal on conviction and sentence. Although an order from this
court dated
9 March 2016 granted special leave against sentence to
this court, the order was in truth leave against the refusal of the
high
court to grant leave against the decision of the magistrate. We
shall approach the application for leave to appeal on this basis.
[2]
The appellant was convicted in the regional court, Newlands,
Johannesburg on a count
of robbery with aggravating circumstances as
contemplated in s 1 of the CPA; attempted murder, and
contravening
s 49(1)
of the
Immigration Act 13 of 2002
. He was
sentenced to 15 years', 10 years' and 3 months' imprisonment,
respectively. The trial court ordered, in terms of
s 280(2)
of
the CPA, that half of the sentence of 10 years’ imprisonment
imposed in respect of the attempted murder and the
sentence of
3 months imprisonment in respect of the contravention of
s 49
(1) of
the
Immigration Act 13 of 2002
should run concurrently with the
sentence of 15 years’ imprisonment. In the result, the
appellant was to serve an effective
term of 20 years’
imprisonment. The trial court also ordered, in terms of
s 276B
of the CPA, that the appellant must serve at least two-thirds of his
sentence before he could be considered for parole.
[3]
The crisp issue for determination is whether the high court erred in
refusing to grant
leave against the sentence imposed by the regional
court.
[4]
Briefly the factual background of the offences committed by the
appellant are the
following: on the morning of 15 August 2011, the
appellant, his co-accused (who was accused 1 in the trial), and a
third person
who was never apprehended, attacked and robbed the
complainant, a 62 years old manageress of a retail shop where they
were also
employed, of a sum of approximately R50 000.00, the
sales taking for the previous 3 days, her purse containing a sum of
R900.00,
and keys. Although the appellant and his co-accused were
arrested shortly after the robbery, only an amount of R900-00 was
recovered.
[5]
In the cause of the robbery, the complainant was severely assaulted:
she was strangled,
thrown to the floor and beaten. Accused 1 stuck
his hand into her mouth and forced it down her throat in order to
choke her. She
was also threatened and scratched with a pair of
scissors. The assault only stopped when she laid still and pretended
to be dead.
As a result, she was admitted to hospital where she spent
4 days in the intensive care unit.
[6]
The severity of the injuries sustained, which led to the charge of
attempted murder,
were described by the medical doctor who examined
the complainant and completed a medico-legal report (the J88), as
consisting
of multiple scratch marks on her face and neck, contusion
and bruising to her face and neck, the latter injuries, according to
the doctor, were life-threatening. These were consistent with
attempted strangulation constituting a dangerous injury, which could
later present life complications such as a stroke and damage to the
blood vessels supplying blood to the brain. In addition to
the
physical injuries, the complainant was psychologically traumatised
and required counselling.
[7]
There was no dispute in this court that the appellant was correctly
convicted. With
regard to sentence it appears that the regional court
misdirected itself in imposing a maximum sentence of 20 years'
imprisonment.
This sentence was imposed despite the fact that the
appellant was a first offender, and in terms of
s 51
(2) of the
Criminal Law Amendment Act 105 of 1997 (CLAA) liable to a minimum
sentence of 15 years’ imprisonment. The regional
magistrate
increased the minimum sentence of 15 years by five years without good
reasons. As stated above, it is common cause that
the appellant was a
first offender and that he had spent more than two years in custody,
awaiting trial and that he did not play
a major role in the
commission of the offences. It is also accepted that the imposition
of the non-parole period was irregular.
[8]
In my considered view, there are reasonable prospects that another
court may come
to a different finding than the one arrived at by the
regional court. In the result the following order is made:
(a)
The application for leave to appeal is upheld
(b)
The order of the High Court refusing leave to appeal is set aside and
replaced with the
following:
‘
Leave to appeal to the Gauteng
Division of the High Court against sentence only is granted.’
____________________
M
J Dolamo
Acting
Judge of Appeal
APPEARANCES
For
Appellant: W A Karam
Legal
Aid, Johannesburg
Justice
Centre, Bloemfontein
For
First Respondent: D
Van Wyk
Director of Public Prosecutions,
Johannesburg
Director
of Public Prosecutions, Bloemfontein