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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

CASE NO: CA 65/2022

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

 

In the matter between:

MVELISWA MDEPHA                                                                    APPELLANT

 

and

 

THE STATE                                                                                     RESPONDENT

 

Coram:           Petersen J, Reddy AJ

 

Heard:                    05 MAY 2023

 

Handed down:        08 MAY 2023

 

ORDER

(i)         Condonation for the late noting and prosecution of the appeal is granted.

 

(ii)        The appeal against sentence is dismissed.

 

(iii)       The order declaring the appellant unfit to possess a firearm in terms of section 103 (1) of the Firearms Control Act 60 of 2000, is confirmed.

 

JUDGMENT

 

PETERSEN J

 

Introduction

 

[1]        The appellant was tried and pleaded guilty in the Regional Court, Stilfontein ('the court a quo') on one count of robbery with aggravating circumstances read with section 51 (2) of the Criminal Law Amendment Act 105 of 1997 ('the CLAA') on 18 October 2019. The appellant was duly convicted on his plea of guilty and sentenced on the same date to fifteen (15) years imprisonment, which was ordered to run concurrently with a sentence of forty-five years imprisonment which the appellant was said to be serving on a conviction emanating from the Bothaville Regional Court in the Free State Province in 2016.

 

[2]        On 26 September 2022 the appellant was granted leave to appeal the sentence imposed by the court a quo.

 

[3]        The parties agreed to dispense with the hearing of oral arguments and requested this Court to decide the appeal on the papers, with reference to the written heads of argument. The appeal was accordingly considered on the papers.

 

Condonation

[4]        The appellant failed to prosecute his appeal timeously and has filed an application for condonation for the late filing of the appeal accompanied by an affidavit in support of the application.

 

[5]        In Grootboom v National Prosecuting Authority[1] the Constitutional Court stated that:

 

"It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court's indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the rules or court's directions. Of great significance, the explanation must be reasonable enough to excuse the default. "

 

[6]        In Mulaudzi v Old Mutual Life Assurance company (SA) Limited[2],  Ponnan JA re-affirmed the factors to be considered in respect of an application for condonation stated in Melane v Santam Insurance Co. Ltd:

 

"Factors which usually weigh with this court in considering an application for condonation include the degree of non-compliance, the explanation therefor, the importance of the case, a respondent's interest in the finality of the judgment of the court below, the convenience of this court and the avoidance of unnecessary delay in the administration of justice.”

 

[7]        The main reason advanced by the appellant for the lateness in prosecuting the appeal is predicated on a delay in securing the complete transcribed record following the granting of leave to appeal on 26 September 2022. The appellant relied on his legal representative, Legal Aid South Africa to secure the complete transcribed record and to duly prosecute the appeal.

 

[8]        The application for condonation is not opposed by the respondent. The appellant's explanation is accepted and sufficient cause has been shown for condonation to be granted. Condonation for the late filing of the appeal is accordingly granted.

 

Grounds of appeal

[9]        The grounds of appeal are set out in the Notice of Appeal as follows:

 

"AD SENTENCE

 

1. It will be argued that the trial court misdirected itself by failure to take into account that the appellant's cumulative personal circumstances are substantial and compelling circumstances justifying a departure from the prescribed minimum sentence of fifteen (15) years imprisonment.

 

1.2 It will be argued that the trial court misdirected itself sentencing the appellant to a term of fifteen (15) years imprisonment, the sentence is shocking and inappropriately severe when considering the appellant's cumulative facts in mitigation as outlined in the appellant's affidavit and also in the heads of argument. "

 

Conviction

[10] In considering the appropriateness of the sentence imposed, it is imperative to have regard to the facts on which the appellant's plea of guilty was based. The facts relevant to the appellant's plea of guilty are set out as follows in the statement in terms of section 112(2) of the Criminal Procedure Act 51 of 1977:

 

"l, the undersigned

 

Mveliswa Mdepha

 

Declare on oath as follows:

 

6. I voluntary and willingly plead guilty as follows:

 

6.11 admit that on or about 3 January 20171 was present at or near Dynamic Cleaning Products, D[...] T[...] Street, Flamwood, Klerksdorp in the Regional Division of North West.

 

6.21 admit that I did unlawfully and intentionally assault Coreen Joy Swart.

 

6.3 1 admit that I did with force take the following items from her to wit 3 cellphones and cash, the property or property in her lawful possession.

 

6.4 My co-accused Lucky Tshelelana, another assailant who is not yet before court in the above-mentioned matter, entered Dynamic Cleaning Products, my co-accused bearing firearms, which they displayed and wielded at the complainant and other shop assistants. I did not have a weapon in my possession but the three of us demanded cellphones and cash from the shop assistants.

 

6.5 Although my co-accused wielded firearms and threatened to inflict grievous bodily harm, nobody was injured. I do admit that it must have been a traumatic event for the complainant and the shop assistants. "

 

The test on appeal

 It is trite that a court of appeal will not lightly interfere with the sentencing discretion of a trial court. The position is succinctly set out in S v Malgas[3] where it was held that:

 

"[12] The mental process in which courts engage when considering questions of sentence depends upon the task at hand. Subject of course to any limitations imposed by legislation or binding judicial precedent, a trial court will consider the particular circumstances of the case in the light of the well-known triad of factors relevant to sentence and impose what it considers to be a just and appropriate sentence. A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion.an appellate court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as ifit were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate court is at large. However, even in the absence of material misdirection, an appellate court may. vet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as "shocking” "startling” or "disturbingly inappropriate". It must be emphasized that in the latter situation the appellate court is not at large in the sense in which it is at large in the former. In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned. No such limitation exists in the former situation.

(my emphasis)

Discussion

[12]      Mr Gonyane for the appellant in his heads of argument submitted that the appellant pleaded guilty out of his own contrition and did not minimise his role during the commission of the crime, thereby exhibiting genuine remorse through his plea of guilty and saving the court's time and State resources by avoiding a lengthy trial.

 

[13]      The court a quo is said to have misdirected itself by failing to find substantial and compelling circumstances where inherent in the following circumstances. That the appellant pleaded guilty out of his own contrition, was thirty two (32) years old at the time of sentence, resided in K[...] Location, Klerksdorp, was not married but had a 4 year old child, completed grade 12, did not cause the complainant bodily injuries although firearms were wielded by his co-accused, that he was willing to co-operate with the investigating officer to secure the arrest of a further perpetrator, that his age and plea of guilty rendered him a good candidate for rehabilitation and that through his plea of guilty the complainant was not subjected to further trauma by having to testify in court in full view of the perpetrators.

 

[14]      The court a quo regarded the sentence of 45 years imprisonment which the appellant was serving at the time as an aggravating factor in imposing the sentence of 15 years imprisonment. The sentence of 45 years imprisonment was subsequent to the imposition of sentence in the present matter, set aside on appeal by the Free State High Court on 16 March 2020.

 

[15]      Adv. Tlatsana's submissions in the heads of argument are regrettably not of much assistance to this Court. In a nutshell, it speaks to the mitigating factors not constituting substantial and compelling circumstances and the aggravating factors which justified the imposition of the mandated sentence, being the seriousness of the offence, the non-recovery of the R2000.00 cash and cellphones, the fact that the appellant had a previous conviction for robbery and that firearms were used during the commission of the crime.

 

[16]      In S v Matytyi[4] , Ponnan JA stated as follows:

 

"[23] Despite certain limited successes there has been no real let-up in the crime pandemic that engulfs our country The situation continues to be alarming. It follows that, to borrow from Malgas, it still is 'no longer business as usual'. And yet one notices all too frequently a willingness on the part of sentencing courts to deviate from the minimum sentences prescribed by the legislature for the flimsiest of reasons — reasons, as here, that do not survive scrutiny. As Malgas makes plain courts have a duty, despite any personal doubts about the efficacy of the policy or personal aversion to it, to implement those sentences. Our courts derive their power from the Constitution and like other arms of state owe their fealty to it. Our constitutional order can hardly survive if courts fail to properly patrol the boundaries of their own power by showing due deference to the legitimate domains of power of the other arms of state. Here parliament has spoken. It has ordained minimum sentences for certain specified offences. Courts are obliged to impose those sentences unless there are truly convincing reasons for departing from them. Courts are not free to subvert the will of the legislature by resort to vague, ill-defined concepts such as 'relative youthfulness' or other equally vague and ill-founded hypotheses that appear to fit the particular sentencing officer's personal notion of fairness. Predictable outcomes not outcomes based on the whim of an individual judicial officer: is foundational to the rule of law which lies at the heart of our constitutional order. " (my emphasis)

 

[17]      The age of the appellant as a first offender can safely be construed as a flimsy reason why the minimum sentence should have been deviated from. The plea of guilty by the appellant did nothing to tilt the scales in his favour. It is trite that in the face of an open and shut case, a plea of guilty if s neutral factor. The appellant was not a first offender with the State having proven a previous conviction for robbery on 23 November 2009 where the appellant was sentenced to four (4) years imprisonment from which he was released on parole supervision from 23 July 2012 until 22 May 2013.

 

[18]      The court a quo in my view was correct in the assessment of the factors in mitigation and aggravation of sentence to find no substantial and compelling circumstances to justify a deviation from the mandated sentence. The aggravating factors inherent in the robbery and the the interests of society indeed weigh heavily against the personal circumstances of the appellant.

 

[19] The sentence of 45 years imprisonment set aside on appeal by the Free State High Court on 16 March 2020 impacts the present sentence only in so far as it was ordered to run concurrently with that sentence. The sentence on the present matter therefore stands as a competent sentence on its own effective from the date of imposition.

 

[20]      The appeal against sentence should accordingly fail.

 

Order

[21]      In the result, the following order is made:

 

(i)         Condonation for the late noting and prosecution of the appeal is granted.

 

(ii)        The appeal against sentence is dismissed.

 

(iii)       The order declaring the appellant unfit to possess a firearm in terms of section 103 (1) of the Firearms Control Act 60 of 2000, is confirmed.

 

 A H PETERS N

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 F THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

For appellant:	Mr T G Gonyane
Instructed by:	Legal Aid South Africa
	Mahikeng Justice Centre
For respondent:	Adv F T Tlatsana
Instructed by:	The Director of Public Prosecutions, Mahikeng

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