South Africa: North Gauteng High Court, Pretoria

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[2020] ZAGPPHC 174
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Sangula v S (A625/2017) [2020] ZAGPPHC 174 (29 April 2020)
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
Case No: A625/2017
29/4/2020
In the matter between:
JAMES SANGULA APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
INTRODUCTION
1. The outbreak of Covid -19 in our country necessitated that in some instances, more especially in appeal proceedings, we dispense with oral hearings, and that proceedings be conducted remotely.
2. To that effect the Judge President of our division issued directives on the 17 April 2020 directing how appeals are to be conducted. Paragraph 15 of the directive provides;
"15 - All appeals set down during the term shall be disposed without an oral hearing in open Court, and pursuant to Section 19(a) of the Superior Courts Act 10 of 013, rely only on the heads of argument filed, subject to the following;
15.1 ........... ..
15.2 If the Counsel for any party wishes to supplement the papers with additional submissions, they must be made in a practice note sent by email to the Presiding Judge at least two Court days before the date of the setdown.
15.3 If the Counsel for any party wishes to make oral submissions, that wish must be stated in the practice note and the broad admit thereof be stated."
3. For completeness Section 19(a) of the Superior Courts Act 10 of 2013 provides;
"19 - The Supreme Court of Appeal or a Division exercising appeal jurisdiction ; may in addition to any power as may be specifically provided for in any other law-
(a) dispose of an appeal without hearing of oral argument".
4. Parties in casu were invited to make further submissions, but waived the right to do so. We then exercised our discretion in terms of the directives to dispose the matter off, based on the record of proceedings and heads of argument presented by the Parties.
APPEAL
5. This is an appeal against sentence by Magistrate Pillay in the Pretoria Regional Court wherein Appellant was sentenced as follows;
5.1 Count 1 - Robbery with aggravating circumstances - 15 years imprisonment,
5.2 Count 2 - Attempted Robbery - 5 years imprisonment,
5.3 Count 3 - Robbery with aggravating circumstances - 15 years,
5.4 Count 4 - Unlawful possession of a firearm - 15 years imprisonment,
It was ordered that counts 2 - 4 are to run concurrently and effective imprisonment to be served by the Appellant was 30 years imprisonment. Appellant was further declared unfit to possess a firearm in terms of Section 103 of Act 60 of 2000.
6. Leave to Appeal sentence was granted by the Court a quo.
EVIDENCE
7. The Appellant was part of the three people who robbed the Complainants in the morning of 8 October 2004 at Sunnyside, Pretoria. Appellant was Accused number 3 in the Court a quo.
8. At 5h30 am the Complainant in Count 1, Ms Elizabeth Rishoketsi Seepe was accosted by two males and female; on the corner of Reily and Walker Streets, while she was waiting for a taxi to go to work. Appellant pointed her with a firearm and her cellphone and wallet were taken from her. Shortly after her items were robbed she met with the police who were doing patrol duties at Engene Garage and made a report of a robbery to the police. She further informed the police that she could identify the people who robbed her if she could see them again.
9. She then drove with the police and later on saw the Appellant and his co accused walking on foot. When Appellant saw the police vehicle he ran away but he was eventually arrested when he tried to scale over the gate of a certain block of flats. At the time of his arrest a firearm was seized from Appellant which fell off when Appellant was trying to run away from the police.
10. Appellant while being arrested, the Complainant in Count 2, Mr Sizwe Maphanga, emerged in the company of his mother and reported to the police that Appellant, one male person and a female person robbed him together with his sister Ms Nonhlanhla Maphanga who is Complainant in Count 3.
11. When Appellant was joined with his co-accused a cellphone belonging to the Complainant in Count 1 was recovered by the police. The money robbed from Sizwe and Nonhlanhla Maphanga was not recovered. All the Complainants testified that Appellant during the commission of the robbery was the one who was having a firearm and pointed them with that firearm when they were robbed. This evidence finds corroboration in the evidence of the police officers as they found a firearm in possession of the Appellant when they were arresting him. It is on the strength of this evidence by the State witnesses that Appellant was convicted of charges leveled against him.
COURT'S APPROACH ON APPEAL AGAINST SENTENCE
12. In S v Boggard 2013(1) SACR 1 (CC) (28 September 2012) Khamphepe J, when dealing with appeal Court's power to interfere with sentences imposed by courts observed, at par 41,
"Ordinarily sentencing is within the discretion of the trial court. An Appellate Courts' power to interfere with sentences imposed by courts below is circumscribed. It can only do so where there has been an irregularity that results in a failure of justice, the court below misdirected itself to such an extent that its decision on sentence is vitiated or the sentence is so disproportionate or shocking that no reasonable court could have imposed it". (See also S v Malgas 2001(1) SACR 469 (SCA) par 12 and S v Hewitt [2016] ZASCA 100, 2017 (1) SACR 309 (SCA) par 8)
13. Appellant was convicted of two counts of robbery with aggravating circumstances which resorts under the ambit of Section 51(2) of Criminal Law Amendment Act (CLAA); which attracts a minimum sentence of 15 years imprisonment each. In such circumstances the court can only deviate from imposition of such sentencing regime if Appellant can show the existence of compelling and substantial circumstances.
14. The concept of substantial and compelling circumstances is not defined in the Act and it can be safely assumed that the legislature deliberately left for such to be developed by the Courts. In seeking to define such circumstances the following was observed in the matter of S v Malgas 2001 (1) SACR 469 (SCA) at 477 d-f;
"Whatever nuances of meaning may lurk in those words, their central thrust seems obvious. The specified sentences were not to be departed from lightly and flimsy reasons which could not withstand scrutiny. Speculative hypothesis favorable to the offender, maudlin sympathy, aversion imprisoning first offenders, personal doubts as to the efficacy of the policy implicit in the amending legislation, and like considerations were equally obviously intended to qualify as substantial and compelling circumstances. Nor were marginal differences in the personal circumstances or degrees of participation of co offenders which, but for the provision, might have justified differentiating between them. But for the rest I can see no warrant for deducing that they intended a court to exclude from consideration, ante omnia as it were, any or all of the many factors traditionally and rightly taken into account by courts when sentencing offenders". (See also S v Dodo 2001 (3) SACR 382 (CC)).
15. To sum up, appeal court can only interfere with a sentence which is disproportionate to the crime and the interests of society. We fully agree with the submission by Mr Nethonando on behalf of the state, at paragraph 2.3 of his heads of argument when he said that;
"The fact that a court of appeal regards a sentence by a trial court as severe, or is of the opinion that it would have imposed a considerably lighter sentence, is not in itself a sufficient ground for interference with the sentence on appeal. The final, crucial question still remains; could the trial court reasonably have imposed the sentence concerned? It is respectfully submitted that this is the touchstone for determining on appeal whether a sentence imposed by the court of first instance is appropriate".
SENTENCE
16. It can be gleaned from the Appellant's heads of argument that two grounds of appeal raised are the following;
16.1 That the Magistrate erred in findings that there are no compelling and substantial circumstances. Mainly that the Appellants' personal circumstances were not adequately considered. Further that period spent by Appellant in custody pending finalization of his trial was not considered, and,
16.2 Magistrate erred in not considering cumulative effect of sentence, thus imposing a sentence of 30 years imprisonment.
17. As already indicated Counts 1 and3 under which the Appellant is convicted falls squarely within the purview of the minimum sentencing regime which requires Appellant to show existence of substantial and compelling circumstance. In addition to that a prescribed sentence for count 4 is also 15 years. The personal circumstances of the Appellant were thoroughly considered by the Magistrate, the fact that Appellant is still young, was working at the time of his arrest were found to be common cause.
18. The Appellant after his arrest was admitted to bail pending the finalization of his trial. He defaulted to appear in court on a number of occasions until his bail was revoked and his bail money forfeited to the state after an enquiry was conducted following his default. The same can be said to his co-accused especially the then Accused 1 whose bail was also revoked and bail money forfeited. There are some occasions when the matter could not proceed due to the absence of state witnesses but the bulk of the time wasted was occasioned by postponements at the instance of Appellant and his co accused and that can be gleaned from the record of the proceedings.
(See S v Chabedi 2005 (1) SACR 415 (SCA)).
19. In Ngcobo v S (1344/016) 2018 ZASCA 06 (23 February 2018) when dealing with time spent in custody pending finalization of trial, Pillay AJA observed at par 14;
'Typically some delays seem to have been at the instance of the State and others at the instance of the Appellant. Primarily remained in custody because his three bail applications failed. Even if there were delays this court said in Radebe:
"the test was not whether on its own that period of detention constituted a "substantial and compelling circumstance" but whether the effective sentence proposed was proportionate to the crimes committed: whether the sentence in all circumstances, including the period spent in detention prior to conviction and sentence, was a just one".
Furthermore:
"the period in detention pre-sentencing is but one of the factors that should be taken into account in determining whether the effective period of imprisonment be to imposed is justified. In short, a pre conviction period of imprisonment is not, on its own, a substantial and compelling circumstances, it is merely a factor in determining whether the sentence imposed is disproportionate or unjust. After applying Malgas, S v Dodo 2001 (3) SA SA 382 (CC) and S v Vilakazi 2012 (6) SA 353 (SCA), this Court in Radebe confirmed the minimum sentence and dismissed the appeal".
20. Magistrate when dealing with issues pertaining to what constitute compelling and substantial circumstances, considered the fact that Appellant was in detention for a period of 3 years pending the finalization of the trial. Appellant was permitted to bail but decided to default on his bail condition mainly of maintaining regular appearances at Court. If it was not for his conduct, Appellant could have been out of prison for the duration of his trial. We are of the view that this factor alone cannot serve as existence of compelling and substantial circumstances on behalf of Appellant.
21. Cumulative effect of sentence is an issue that has received attention of our Courts over a period of time. Section 280 (2) of the Criminal Procedure Act empowers the Courts to order concurrent running of sentence in the event a person is convicted of two or more offences, like in casu.
(See also Sv Mhlakaza and Another 2012 (2) SACR 545 (SCA)).
22. Appellant was convicted of two separate Counts of robbery with aggravating circumstances which was committed on the same day but different times, involving different Complainants. The robbery in Count 3 was committed shortly after the robbery in Count 1 was committed, as the Complainants robbed in Count 3 arrived at the scene of arrest of Appellant and identified him as a person who robbed them.
23. Ms Augustyn on behalf of the Appellant contends that Magistrate should have considered concurrent running of sentence and impose a sentence of 15 years. The Magistrate did consider the concurrent running of sentence as she ordered Counts 2 to 4 to run concurrently, which resulted in 30 years imprisonment.
24. In S v Mate 2000 (1) SACR 552 (T) court decided that where there is a close link between offences the concurrence of sentences is appropriate. When the elements of the offence are closely bound up with elements of the offences the concurrence of sentences should more particularly be considered.
25. In S v Mthethwa and Others 2015 (1) SACR 302 (GP) Makgoka J at par 22 observed;
"An order that sentences should run concurrently is called for where the evidence shows that the relevant offences are inextricably linked in terms of locality, time, protagonist and importantly, the fact that they were committed with one common intent. (S v Mokela 2012 (1) SACR 431 (SCA) para (11).
Put differently, and where there is a close link between offences and where the elements of one are closely bound up with the elements of another, the concurrence of sentence in particular should be considered. (S v Mate 2000 (1) SACR 55 (T)".
26. Finally in the matter of S v Makela 2012 (1) SACR 431 (SCA) at par 10, Bosielo JA observed;
"In ordering the sentences imposed on the two counts to run concurrently, the Regional Magistrate relied on Section 280 (2) of the Criminal Procedure Act 51 of 1997 (the Criminal Procedure Act). The section provides a sentencing Court with a discretion when sentencing an accused to several sentences to make an order that such sentences run concurrently. There are a number of reasons which a sentencing Court can legitimately take into account in this regard. One such ground is the cumulative effect of such sentences. It follows that a Court of appeal can only interfere with the exercise of such a discretion by the sentencing Court where it is satisfied that the sentencing Court misdirected itself, or did not exercise its discretion properly or judicially. Absent such proof, the appeal Court has no right to interfere with the exercise of a discretion by a sentencing Court."
27. The two robbery acts, as alluded above were minutes apart from each other. What is aggravating is that a firearm was used which left the Complainant traumatised. The Complainants in Counts 2 and 3 were minor children aged 13 and 15 years respectively at the time of the commission of the offence. They were robbed whilst they were on their way to school. The Complainant in Count 1 was robbed whilst on her way to work. Appellant showed no form of remorse and most importantly he has a previous conviction of a firearm and ammunition.
28. In Mthethwa (supra), court when ordering concurrent running of sentences, remarked that the trauma inflicted on Complainants is not severe as trauma inflicted by the use of firearm, as in Mthethwa the Appellants used a hammer and screwdriver to commit the offences.
29. In casu I see no reason to interfere with the sentence of the court a quo. The two robbery incidents are not inextricably bound in terms of the requirements stated in Mthethwa. Morever the Magistrate did consider concurrent running of sentences in Counts 2 to 4 which in my view I agree with that those counts are inextricably linked and committed with common intend.
30. In the result, I make the following order:
1. Appeal against sentence imposed by Magistrate Pillay is dismissed.
M.J MOSOPA
JUDGE OF THE HIGH COURT
PRETORIA
I AGREE
A.T MATHUNZI
ACTING JUDGE OF THE HIGH
COURT, PRETORIA
Appearances
For Appellant: Advocate L. Augustyn
Instructed by: Legal Aid South Africa, Pretoria Justice Centre
For Respondent: Advocate M.J Nethononda
Instructed by: Director of Public Prosecutions(Pretoria)
Date of Hearing: 22 April 2020
Date of Judgment: 29 April 2020