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IN THE HIGH COURT OF SOUTH AFRICA /ES

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: A866/07

NOT REPORTABLE DATE: 4/4/2008

IN THE MATTER BETWEEN

PHILMON FREDIE KOTZE APPELLANT

AND

THE STATE RESPONDENT

JUDGMENT

MAKHAFOLA, AJ

The appellant appeared in the Benoni regional court on a charge of robbery with aggravating circumstances read with the provisions of section 51(2) of the Criminal Law Amendment Act 105 of 1997.

The appellant was represented by an attorney throughout the trial. He pleaded guilty to the offence. A statement in terms of section 112 of Act 51 of 1977 was read into record and handed in to court.

The appellant was convicted as charged as it appears on page 4 line 10 of the record. The appellant had appeared together with two more accused. At this point the trial court ordered a separation of trial of accused 1 and 3. The appellant appeared as accused 2.

The defence applied for a pre sentencing report and the matter was remanded with the appellant in custody. When the matter resumed the author of the pre sentencing report, a registered social worker Mr Aubrey Sihlangu, testified about his report and read it into the record. The trial court was influenced by the evidence of Mr Sihlangu and the pre sentencing report on page 9 lines 19–21 of the record. Therein the appellant, it is reported, pleaded guilty to common robbery because he had been unarmed when he committed the offence.

0n the basis of that the court a quo altered the plea of guilty to one of not guilty and invited the state to lead evidence. Vide: record page 12 lines 18-20. After the complainant had testified he was cross-examined at length by the defence. Thereafter the state closed its case and defence case was closed without the appellant testifying.

After a short address by both the state and the defence the learned magistrate for reasons only known to her remarks as follows on page 26 line 16 of the record: "Die regters gaan my pak gee." Perhaps this is figuratively correct as it will later appear.

In a two page judgment the trial court found the appellant guilty as charged. Vide: record page 27-28 lines 1-22.

After the appellant was tried twice on the same facts and convicted twice on the same facts his SAP69 depicting that he was a first offender was read into the record twice. Vide: record page 5 lines 3-4; page 29 lines 1-3.

What follows thereafter is a short address by the defence which is actually worthless. The record does not show that the state was ever invited to lead any evidence before sentence. The state also addressed the court briefly. Vide: record page 29 lines 19 25; page 30 lines 4 8. The appellant was then sentenced to fifteen years imprisonment without any of his personal circumstances laid before the court.

The magistrate had become functus officio after the first conviction of the appellant. He could clearly not retry him on the same facts because he had already been convicted.

The plea of guilty could clearly not be altered after a conviction had been pronounced by the court. The SAP69 had already been known by the court though there were no previous convictions.

My view is that the first conviction of the appellant based on the guilty plea in terms of section 112 of the Act and confirmed by the appellant is correct. In that plea the appellant admits that he had threatened the complainant with a broken bottle. Vide: record page 3 lines 13-14.

Taking into account the applicability of the Minimum Sentence Act compelling and substantial circumstances must first be established before sentencing can take place. Their presence or absence is crucial for the imposition of the sentence. In S v Dlamini 2000(2) SACR 266 (T) in an appeal the court held:

"that there was an obligation on the magistrate even where the accused is represented (as in the present case) to ask questions and call witnesses to establish the existence of those substantial and compelling circumstances if at all possible."

The following cases amongst others deal with compelling and substantial circumstances, and the applicability of Minimum Sentence Act where such exist: S v Malgas 2001(1) SACR 469 (SCA); S v Shongwe 1999(2) SACR 220 (O); S v Malan en 'n Ander 2004(1) SACR 264 (T); Rammoko v Director of Public Prosecutions 2003(1) SACR 200 (SCA).

The court did not make a finding as to the presence or absence of substantial and compelling circumstances. After the first conviction the social worker one Aubrey Sihlangu gave evidence under oath about his report. He placed before court the personal circumstances of the appellant which were later briefly placed by the defence before court.

According to the report of the social worker the appellant is a first offender, born in 1986 he was 20 years old at the time of his sentence. According to the charge-sheet he was arrested on 3 February 2006. He has been in custody since his time of arrest to date of this appeal, 20 March 2008. The complainant did not suffer any injuries as a result of the robbery. He comes from a broken family where his mother had separated with his biological father. He stayed with his step-father who had made living conditions unbearable for him. He eventually evicted the appellant from his house. He has no formal education. His stepfather used to discriminate against him. He had been employed before his arrest at a tavern where he earned little salary. He repeatedly expressed regrets for his conduct and was sorry for that.

Robbery with aggravating circumstances is a serious crime that is why the legislature caused it to fall under the Minimum Sentence Act. The offence by itself is aggravating. The fact that when the complainant was robbed the appellant was in the company of two males made it easier to subdue the complainant.

Taking the mitigating factors which are the personal circumstances of the appellant into account, which are on record, together with what I have sketched above as aggravating, it can be clearly seen that the appellant is not a criminal type who cannot be rehabilitated. It does not appear that he may re offend in the near future because of his position of first offendership.

In the circumstances I find that there exists substantial and compelling circumstances in favour of a lesser sentence. The sentence is inappropriate and this court is entitled to interfere with it because it is harsh in the circumstances sketched above.

In the result the appeal against sentence succeeds. It is substituted with the following order.

The appellant is sentenced to six years imprisonment which is antedated in terms of section 282 of the Act to 14 August 2006.

K MAKHAFOLA

ACTING JUDGE OF THE HIGH COURT

I agree

VILAKAZI

ACTING JUDGE OF THE HIGH COURT

A866-2007

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