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Reportable:                                              YES / NO

Circulate to Judges:                                YES / NO

Circulate to Magistrates:                       YES / NO

Circulate to Regional Magistrates:      YES / NO

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: CAF03/2017

In the matter between:

SOLOMON MAQHABANE TSHABANGU                                  APPELLANT

and

THE STATE                                                                               RESPONDENT

FULL BENCH CRIMINAL APPEAL

GUTTA J, DJAJE J AND CHWARO AJ

JUDGMENT

DJAJE J

[1] The Appellant was arraigned in the High Court sitting at Themba in the district of Moretele on charges of murder, two counts of robbery, unlawful possession of firearm and unlawful possession of ammunition. He pleaded guilty to all charges and after conviction he was sentenced to life imprisonment on the murder charge, eight years on each charge of robbery, three years for possession of unlicensed firearm and one year for possession of ammunition. Cumulatively his sentence is life imprisonment. He now appeals against the sentence of life imprisoment only.

[2] The facts of this matter can be summarised as follows:

On 21 June 2001 the Appellant and his co –accused robbed the two complainants by pointing them with firearms, assaulted them and took their belongings. The following day the police were at the house of the Appellant and after introducing themselves as police officers they were allowed inside the house. The Appellant’s co-accused were arrested whilst the Appellant fled through a window. In the process of running away, the appellant fired a shot towards Sergeant Ramoitheki (“deceased”) who was at the window and the bullet hit him on the head. As a result of the shot, the deceased died instantly of a gun-shot wound to the head. The Appellant was eventually arrested through the assistance of community members. On his arrest he was found in possession of an unlicensed firearm and ammunition.

[3] It was submitted on behalf of the Appellant that the Court a quo misdirected itself when imposing sentence in count one of murder, in that it imposed a minimum sentence in terms of  s51(1) of the Criminal Law Amendment  Act 105 of 1997 when the Appellant was never warned of this fact.  It was also conceded on behalf of the Respondent that there was misdirection by the trial court when it imposed the prescribed minimum sentence whilst the Appellant was not warned of its applicability.

[4] Sentence is a matter for the discretion of the court burdened with the task of imposing it.  A Court of Appeal will be entitled to interfere with the sentence imposed by the trial court if it is disturbingly inappropriate or out of proportion with the seriousness of the offence or is vitiated by a misdirection showing that the trial court exercised its discretion unreasonably. See: S v Romer 2011 (2) SACR 153 (SCA) paragraph 22.

[5] It is important for a court to warn an accused person about the applicability of the minimum sentence if it is to be considered. This was stated in the case of In S v Ndlovu 2003 (1) SACR 331 SCA at page 331i–332d that:

“Where the State intends to rely upon the sentencing regime created by the Act a fair trial will generally demand that its intention be pertinently brought to the attention of the accused at the outset of the trial, if not in the charge-sheet then in some other form, so that the accused is placed in a position to properly appreciate in good time the charge that she or he faces as well as its possible consequences. What will at least be required is that the accused be given sufficient notice of the State’s intention to enable the accused to properly conduct her or his defence.  (Paragraph) [12] at 337a –c .)  The appellant had been charged with unlawful possession of a firearm and ammunition.  The charge-sheet alleged that the accused was ‘guilty of the offence of contravening s 2 read with ss 1, 39(1)(h), 39(2) of Act 75 of 1969 as amended.  Read with s 50 Act 105/97.’  The appellant was found guilty as charged and the magistrate, on the basis of scant evidence led at the trial, having found in his judgment on conviction that the weapon was a semi-automatic firearm, sentenced the appellant to 15 years’ imprisonment in terms of s 51(2)(a)(i) of the Criminal Law Amendment Act 105 of 1997.  Apart from the reference in the charge-sheet to s 50 of Act 105 of 1997 (which was a provision not directly related to the imposition of a minimum sentence in casu), the appellant was never pertinently alerted to the fact that he was at peril of being sentenced in terms of the minimum sentencing legislation.

Held, that it could not be said that the appellant suffered no prejudice from the magistrate’s failure to warn him of the consequences of his finding, should he make such a finding, that the weapon found on him had been a semi-automatic firearm.  In having invoked the provisions of the Act without it having been pertinently brought to the appellant’s attention that this would be done had rendered the trial in that respect substantially unfair.”

[6] In terms of section 35 of the Constitution of the Republic of South Africa Act 108 of 1996 (“the Constitution”) every accused person has a right to a fair trial. In relation to this the following was stated by Cameron JA (as he then was) in the case of S v Legoa 2003 (1) SACR 13 SCA at 22h-23b:

“The Bill of Rights specifies that every accused has a right to a fair trial. This right, the Constitutional Court has said, is broader than the specific rights set out in the subsections of the Bill of Rights‟ criminal trial provision. One of those specific rights is “to be informed of the charge with sufficient detail to answer it”. What the ability to “answer” a charge encompasses this case does not require us to determine. But under the constitutional dispensation it can certainly be no less desirable than under the common law that the facts the State intends to prove to increase sentencing jurisdiction under the 1997 statute should be clearly set out in the charge-sheet.‟

[7] In Sv Makatu 2006 (2) SACR 582 (SCA) at paragraph 7, Lewis JA said in relation to details that should be furnished to an accused person charged with an offence in terms of s 51(1) of the Act:

“As a general rule, where the State charges an accused with an offence governed by s 51(1) of the Act, such as premeditated murder, it should state this in the indictment. This rule is clearly neither absolute nor inflexible. However, an accused faced with life imprisonment ─ the most serious sentence that can be imposed ─ must from the outset know what the implications and consequences of the charge are. Such knowledge inevitably dictates decisions made by an accused, such as whether to conduct his or her own defence; whether to apply for legal aid; whether to testify; what witnesses to call; and any other factor that may affect his or her right to a fair trial. If during the course of a trial the State wishes to amend the indictment it may apply to do so, subject to the usual rules in relation to prejudice.”

[8] It is evident from the indictment in this matter that there is no reference made to the applicability of the Minimum Sentence Act on the charge of murder. The fact is in count one, the Appellant was never warned of the applicability of the Minimum Sentence Act. Had the appellant been warned of the provision of the Minimum Sentence Act, he may not have pleaded guilty. Accordingly this in itself is a misdirection by the trial court entitling this Court to interfere with the sentence imposed and to consider it afresh.

[9] The sentence prescribed as a minimum sentence in respect of murder in terms of s51 (1) read with Part 1 of schedule 2 to the Criminal Law Amendment Act 105 of 1997, is life imprisonment. The powers of the High court to impose life imprisonment are not derived from the Criminal Law Amendment Act. These powers existed before the introduction of the minimum sentences as provided for by the common law. These powers include the unfettered discretion to impose life imprisonment even in cases where there is no reference made to the applicability of the Minimum Sentence Act in the indictment. The nature of the crime is a factor to be considered in deciding a suitable sentence.

[10] When a court imposes a sentence it should take into account the nature of the crime, the interests of the community and the personal circumstances of the offender.  The court has to also consider the element of mercy.  See S v Rabie 1975 (4) SA 855 (A).

[11] In mitigation of sentence the following is evident: the Appellant was 20 years old at the time of commission of the offences, he was a first offender and he pleaded guilty to all the charges. He was a student doing grade 10 at the time of his arrest. He was single with one minor child of three years. During mitigation his legal representative informed the court that the reason for the Appellant to commit the offence of robbery was to get money in order to buy certain things for his minor child.

[12] In aggravation the following factors were mentioned: The deceased in this matter was a law enforcement officer on duty. Not only was he on duty but he was effecting an arrest in full uniform with a bulletproof vest. He was unfortunately shot in the head. The following was said in relation to the seriousness of a charge of murder in the case of S v Maarman 1976 (3) SA 510 (A) at 512H:

“Hoewel die grusaamheid van ‘n daad nie versagting uitsluit nie is dit ‘n faktor wat oorweeg kan en behoort te word omdat van die grusaamheid van die daad ‘n afleiding gemaak kan word oor die beskuldigde se geestestoestand gedurende die pleeg van die daad en sy morele skuld.  Die omstandighede waaronder ‘n moord gepleeg word kan ook, myns insiens, sodanig wees dat daarvan afgelei kan word dat die beskuldigde ‘n gees geopenbaar het waarin hy nie alleen ‘n person vermoor het nie, maar ook die gemeenskap self, wou uitdag en aantas.”

[13] As in the case of Maarman supra the action of the Appellant in this matter was gruesome and merciless. The Appellant did not only shoot at the deceased but he aimed at his head and killed him. At that time the deceased was in police uniform with a bullet proof vest executing his official duties to arrest. The deceased as a police officer was protecting the community. The action of the Appellant in itself displayed that not only did he murder the deceased but he deprived the community of a police officer. When balancing the mitigating and aggravating factors and blending this with an element of mercy, then I am of the view that the appellants conduct warrants a sentence of long term of imprisonment.

ORDER

[14] Consequently, I make the following order:

1.   The appeal against the sentence in respect of count one succeeds to the extent that the sentence in respect of the Criminal Law Amendment Act is set aside and substituted with the following:

“Twenty five (25) years imprisonment.”

2.   The sentences are antedated to 28 August 2002.

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T J DJAJE

JUDGE OF THE HIGH COURT

 

 

I agree

 

 

______________

N GUTTA

JUDGE OF THE HIGH COURT

 

I agree

 

_____________

K O CHWARO

ACTING JUDGE OF THE HIGH COURT

 

 

APPEARANCES:

 

COUNSEL FOR THE APPELLANT       :        MR MADIBA

COUNSEL FOR THE RESPONDENT    :        ADV NONTENJWA

 

DATE OF HEARING                                :        8 SEPTEMBER 2017

DATE OF JUDGMENT                            :        14 SEPTEMBER 2017                            

 

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