IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
A818/2014
Not reportable
Not of interest to other judges
Revised
8/10/2015

In the matter between:

VUSI MASANGO	Appellant

And

THE STATE	Respondent

JUDGMENT

PHATUDI J

[1] The appellant was accused 3 when convicted in the High Court (Circuit Local Division of the Northern Circuit District) sitting in Polokwane on count 1 -  murder read with the provisions of section 51(1) of Criminal Law Amendment Act 105 of 1997 (CLAA), count 3 and 4 - kidnapping and count 5 - crimen injuria.

[2] Imprisonment for life was imposed on count 1, five (5) years' imprisonment each on counts 3, 4 and 5 respectively. The latter sentences were ordered to run concurrently with the sentence on count 1.

[3] The High Court refused the appellant leave to appeal against convictions and sentences. The Supreme Court of Appeal granted the appellant leave to appeal to the Full Court of this Division only against sentences.

[4] The appellant contends on the one hand that the High Court misdirected itself by not invoking the provisions of section 274(1) of the Criminal Procedure Act 51 of 1977 (CPA) before sentencing. The appellant further contends that imprisonment for life imposed on count 1 is harsh and disproportionate under the circumstances. On the other hand, the state contends that there is no merit on the appellant's contentions as he was legally represented through the trial.

[5] I find it inevitable to first deal with the appellant's contention that the High Court erred by not invoking the provisions of section 274(1) of CPA

[6] Immediately after delivery of its judgment on merit, the High Court excused the assessors. The appellant accepted his previous convictions put on record. Accused 1 and 2 led evidence under oath in mitigation of their sentences. They both were subjected to cross­ examination. Thereafter both counsel for Accused 1 and 2 addressed the court on mitigation.

[7] It is not clear from the record as to whether the appellant did lead any evidence in mitigation. All that is depicted on record is:
"Mr Mangena address the court on mitigation”

The High Court remanded the matter to a specific date for sentence.

[8] When dealing with the appellant's sentences, the High Court stated the following:
"[The appellant], your counsel ... addressed the court from the bar and advised the court that your personal circumstances were as follows: that you are unmarried... that you received a social grant - why the court does not know ... "

[9] Section 274 of CPA provides:

"(1) A court may, before passing sentence, receive such evidence as it think fit in order to inform itself as to the proper sentence to be passed.
(2) the accused may address the court on any evidence received under subsection (1), as well as on the matters of the sentence, and thereafter the prosecutions may likewise address the court".

[1O] The procedural step to be followed after delivery of the judgment is clear and cannot be faulted. Firstly, the accused's previous conviction(s) (if any) must be put to him/her. If the accused accepts them, he/she must sign the form as acknowledgement thereof.

[11] The second step is that the accused/convict has an option to give evidence under oath in mitigation of sentence. The accused may be subjected to cross-examination. The state may, whether in rebuttal of the accused's evidence or not, lead evidence in aggravation. Following the leading of the said evidence, both parties will address the court on mitigation based on the "facts" put on record when giving or leading evidence in mitigation and/or aggravation. This procedure is provided for by the provisions of section 274(1) and (2) of the Criminal Procedure Act.

[12] The provisions of section 274(1) and (2) alluded to above must be read together in order to appreciate their context and meaning. According to the provisions of subsection (1), a court may, before passing sentence, receive such evidence from either party. A court may receive such evidence either under oath or from the bar. If the accused is not legally represented and opts to lead evidence in mitigation either under oath or from the dock, the presiding judicial officer is obligated to question the accused directly. When the accused is legally represented, the presiding judicial officer relies on what the defence counsel places on record as evidence in mitigation before court.

[13] Upon giving the evidence as provided in terms of section 274(1), both the accused (or his/her legal representative) and the state must address the court in terms of subsection (2) based on the evidence given in terms of subsection (1).

[14] On my perusal of the record, it is clear that accused 1 and 2 followed the proper procedure as envisaged in terms of the provisions of section 274(1) and (2) of the Criminal Procedure Act to the letter. It is however, not clear from the record in respect of the appellant if evidence was given as envisaged in terms of section 274(1) either under oath or from the dock and/or bar. It is without doubt that the appellant's legal representative addressed the court as envisaged in terms of section 274(2) of the Criminal Procedure Act.

[15] In S v Siebert, the appellant was convicted on his guilty plea. The appellant did not testify in mitigation of sentence, but his personal circumstances were explained by his legal representative with specific requests. The presiding magistrate refused those requests. In finding the misdirection on the part of the magistrate on appeal, Olivier JA stated:
"Sentencing is a judicial function sui generis. It should not be governed by considerations based on notions akin to onus of proof. In this field of law, public interest requires the court to play a more active inquisitorial role. The accused should not be sentenced unless and until all the facts and circumstances necessary for the responsible exercise of such discretion have been placed before the court".

[16] Evaluating from the wording of the High Court when dealing with the appellant's sentence, more specifically when the following was stated - "why the court does not know" that the appellant had been receiving a social grant, I, without doubt, am of the view that there was no evidence led to that effect. Having perused the record, I was unable to find any facts or evidence relating to the appellant's circumstances which the High Court considered when sentencing the appellant as his personal circumstances.  All that one could find was the proven facts if not seriously contested other than an alibi rejected by the High Court when dealing with the merits, that the appellant actively participated by dragging the deceased with the rope that was tied around the deceased's neck to the motor vehicle.

[17] In my view, the High Court misdirected itself by considering the sentence without any evidence placed on record as envisaged in terms of section 274(1) of Criminal Procedure Act. The appellant's sentences are based on inadequate (if any) or non-existent evidence adduced in mitigation of sentences and that leaves me with no option but to set the sentences aside.

[18] This appeal court cannot deal with the sentences afresh due to lack of evidence on mitigation placed on record. It is trite law that the appeal court is confined to the facts placed on record. This court cannot speculate and/or insinuate on what the appellant's mitigating factors were to consider sentences afresh.

[19] I, in the result, would make the following order:

19.1.	The appellant's appeal against sentence succeeds.
19.2.	The sentences imposed against the appellant are set aside.
19.3.	The matter is remitted back to the High Court to consider the appellant's sentences afresh after hearing evidence and/or obtaining facts in mitigation envisaged in terms of section 274(1) of Criminal Procedure Act 51 of 1977 relevant to the imposition of sentences.
19.4.	The sentences imposed on counts 1, 3, 4 and 5 the appellant is found guilty of respectively, must be backdated to the date of the original sentences.

A M PATHUDI
Judge of the High Court

I agree

N M MAVUNDLA
Judge of the High Court

I agree

C Pretorius
Judge of the High Court

APPEARANCES

For the Appellants:		Mr MP Legodi
Instructed by:		Polokwane Justice Centre

For the Respondent:	Adv. BE MAOKE
Instructed by:		Director of Public Prosecutions, Pretoria