Calitz v S (A441/2018) [2020] ZAGPPHC 499 (21 August 2020)

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED :

CASE NO: A441/2018

In the matter between:

JAN

CALITZ

Appellant

and

THE

STATE

Respondent

JUDGMENT

[1] The applicant in this appeal was arraigned before the Regional Magistrate Springs before Regional Magistrate Ms. Moila on three counts of possession of three unlicensed firearms. The charge sheet specifically referred to the minimum sentence in terms of section S1 (1) of the Criminal Laws Amendment Act 105 of 1997.

[2] The appellant pleaded guilty to all counts and was duly convicted. He did not lead evidence in mitigation of his sentence. A social worker’s report was submitted for sentencing purposes.

[3] The trial Court sentenced the appellant to ten (10) years imprisonment on count 1;

five years imprisonment in respect of count 2 and two (2) years imprisonment in respect of count 3.

[4] What requires determination from this Court in whether the ten (10) year sentence

imposed by the trial court is appropriate or not. If it is found to be appropriate, the appeal fails and if not found to be appropriate,

interference by us on the sentence imposed by the trial Court would be warranted.

[5] It is trite law and this has received a plethora of judicial pronouncements that the imposition of sentence is pre-eminently within the discretion of the trial Court.[1] The appeal Court will only be entitled to interfere with the sentence imposed by the trial Court if one or more of the recognised grounds justifying interference on appeal has been shown to exist.[2]

[6] Once it is shown that one, some or all of the following factors exist the appeal Court will be justified to interfere namely: if the sentence appealed against is, for instance:

(a) disturbingly inappropriate

(b) so totally out of proportion to the magnitude of the offence;

(c) sufficiently disparate;

(d) vitiated by misdirections showing that the trial Court exercised its discretion unreasonably;

(e) is otherwise such that no reasonable Court would have imposed it.

[7] In restating the approach by the appeal Court on sentencing, Marais JA in S v Sadler [3] had the following to say:

“[6] The approach to be adopted in an appeal such as this is reflected in the following passage in the judgment of Nicholas AJA in S v Shapiro 1994 (1) SACR 112 (A) at 119J-120C:

‘It may well be that this Court would have imposed on the accused a heavier sentence than that imposed by the trial Judge. But even if that be assumed to be the fact, that would not in itself justify interference with the sentence. The principle is clear: it is encapsulated in the statement by Holmes JA in S v Rabie 1975 (4) SA 855 (A) at 857D-F:

“1. In every appeal against sentence, whether imposed by a Magistrate of a Judge, the court hearing the appeal-

(a) Should be guided by the principles that punishment is pre-eminently a matter for the discretion of the trial Court; and

(b) Should be careful not to erode such discretion hence the further principle that the sentence should only be altered if the discretion has not been judicially and properly exercised;

2. the test under (b) is whether the sentence is vitiated by irregularity or

misdirection or disturbingly inappropriate.”

[8] In deciding the appeal on sentence the appeal Court must always take account of the fact that the imposition of the sentence is the prerogative of the trial Court and that the exercise of its discretion in that regard is not to be interfered with merely because an appeal Court could have imposed a heavier or lighter sentence.

[9] The record of the trial Court shows that it was exercised judicially. The learned Regional Court Magistrate found that she could not impose the required minimum sentences in terms of the minimum sentence legislation because no evidence was led that possession of the unlicensed firearms was with the intention to commit an offence. As a consequence the court a quo, imposed a lesser sentence. We find no reason to interfere with the judicially exercised discretion by the court a quo. It follows therefore that the appeal must fail in respect of all the sentences imposed.

ORDER:

(a) The appeal is dismissed.

SENYATSI J

Judge of the High Court of South Africa

Gauteng Local Division, Johannesburg

I agree/do not agree

MAUMELA J

Date of hearing: 2 December 2019

Date of Judgment: 21 August 2020

Appellants Counsel: No appearance

Instructed by: Unknown

Respondents Counsel: Adv. Maponya

Instructed by: National Director of Public Prosecutions

[1] See S v Rabie 1975 (4) SA 855 (A)

[2] See S v Mtungwa en Andere 1990 (2) SACR 1 (A)

[3] See S v Dyantyi 2011 (1) SACR 540 (ECG), S v L 1998 (1) SACR 463 (SCA)