Gwambe v S (CA 17/2020) [2024] ZANWHC 60 (5 March 2024)
- Citation
- [2024] ZANWHC 60
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North West High Court, Mafikeng
- Panel
- Reddy AJ, Roux AJ
- Case number
- CA 17/2020
More details
- Court
- North West High Court, Mafikeng
- Panel
- Reddy AJ, Roux AJ
- Case number
- CA 17/2020
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The appeal against sentence was upheld because the sentence of twenty-five years imprisonment for housebreaking with intent to steal and theft was found to be excessive and not in line with established sentencing principles. The court held that the trial court failed to adequately consider the appellant's personal circumstances and the nature of the offence. The sentence was reduced to twelve years imprisonment, antedated to the original sentencing date. The conviction and sentence under the Immigration Act were confirmed, as the appellant admitted to the offence and the requirements of the Act were satisfied. The order declaring the appellant unfit to possess a firearm was also confirmed, as it was mandated by the relevant statutory provision.
Court disposition
Appeal against sentence on count 1 upheld; sentence reduced and antedated. Sentence on count 2 and firearm order confirmed.
Orders
- The appeal with regard to the sentence on count 1 is upheld.
- The sentence of twenty-five years imprisonment imposed in count 1 is set aside and replaced with twelve years imprisonment.
- The sentence is antedated to 22 October 2019 in terms of section 282 of the Criminal Procedure Act 51 of 1977.
- The sentence on count 2 is confirmed.
- 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.
02
Material facts
Parties
Alfred Gwambe
AppellantThe State
RespondentAmounts and remedies
- Value of Stolen Sony Tech Television: ZAR 6,000
- Value of Stolen Telefunken Tablet: ZAR 1,000
- Value of Stolen Navy Blue Backpack: ZAR 300
03
Procedural history
Posture
Criminal Appeal / Appeal Against Sentence
04
Questions and positions
Legal issues
- 01
Whether the sentence of twenty-five years imprisonment for housebreaking with intent to steal and theft was appropriate.
- 02
Whether the appellant's conviction and sentence under the Immigration Act were correct.
- 03
Whether the order declaring the appellant unfit to possess a firearm should be confirmed.
Party arguments
- Applicant
- The appellant argued that the sentence of twenty-five years imprisonment imposed for housebreaking with intent to steal and theft was shockingly severe and disproportionate to the circumstances of the offence and the personal circumstances of the appellant. He contended that the trial court failed to properly consider mitigating factors and that the sentence should be reduced. The appellant also challenged the confirmation of the order declaring him unfit to possess a firearm.
- Respondent
- The respondent maintained that the sentence imposed by the trial court was appropriate given the seriousness of the offence and the interests of society. The respondent argued that the trial court correctly applied the relevant sentencing principles and that there was no basis for interference with the sentence or the order regarding firearm possession.
05
Court’s reasoning
Legal principles
- 01
S v Malgas 2001 (1) SACR 469 (SCA)
Sentences must be proportionate to the offence and the circumstances of the offender, and should not be disturbingly inappropriate.
- 02
Criminal Procedure Act 51 of 1977
Section 282 of the Criminal Procedure Act allows for antedating of sentences to the date of initial sentencing.
- 03
Immigration Act 13 of 2002
Section 49(1)(a) of the Immigration Act criminalises unlawful entry and remaining in the Republic without proper documentation.
- 04
Firearms Control Act 60 of 2000
Section 103(1) of the Firearms Control Act provides for the declaration of unfitness to possess a firearm upon conviction of certain offences.
06
Ratio, limits and disposition
Ratio decidendi
The appeal against sentence was upheld because the sentence of twenty-five years imprisonment for housebreaking with intent to steal and theft was found to be excessive and not in line with established sentencing principles. The court held that the trial court failed to adequately consider the appellant's personal circumstances and the nature of the offence. The sentence was reduced to twelve years imprisonment, antedated to the original sentencing date. The conviction and sentence under the Immigration Act were confirmed, as the appellant admitted to the offence and the requirements of the Act were satisfied. The order declaring the appellant unfit to possess a firearm was also confirmed, as it was mandated by the relevant statutory provision.
Obiter and limits
- The court noted that the withdrawal of charges against the second accused did not affect the appellant's liability on the counts he faced.
- The court emphasised the importance of ensuring that sentences are not only punitive but also rehabilitative and proportionate to the circumstances.
Court disposition
Appeal against sentence on count 1 upheld; sentence reduced and antedated. Sentence on count 2 and firearm order confirmed.
- The appeal with regard to the sentence on count 1 is upheld.
- The sentence of twenty-five years imprisonment imposed in count 1 is set aside and replaced with twelve years imprisonment.
- The sentence is antedated to 22 October 2019 in terms of section 282 of the Criminal Procedure Act 51 of 1977.
- The sentence on count 2 is confirmed.
- 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.
Source and reliance status
North West High Court, Mafikeng
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North West High Court, Mafikeng
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION –
MAHIKENG
Case No: CA 17/2020
In the matter between:-
GWAMBE
ALFRED
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
Reddy AJ & Roux AJ
Date of Hearing :
29 November 2023
Date handed down:
05 March 2024
ORDER
(i) The appeal with regard to the sentence on count 1 is upheld.
(ii) The sentence of twenty-five (25) years imprisonment imposed in count 1 is set aside and it is replaced with the following sentence:
“The appellant is sentenced to twelve (12) years imprisonment.”
(iii) This sentence is antedated to 22 October 2019, in terms of section 282 of the Criminal Procedure Act 51 of 1977.
(iv) The sentence on count 2 is confirmed.
(v) 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
REDDY AJ
Introduction
[1] The appellant was the third accused charged on two counts. The withdrawal of charges against the second accused caused the appellant to be referred to as accused two. For purposes of brevity, this Court will follow the order of the accused as per the court a quo. The first accused was charged with the same counts as the appellant, whilst the third accused was only charged with the offence of housebreaking with intent to steal and theft.
[2] It was alleged that all accused before the court a quo had committed the crime of housebreaking with intent to steal and theft read with the provisions of Section 260(1) and Section 264 of the Criminal Procedure Act 51 of 1977, in that upon or about the 18 October 2017 at or near Plot 760 Vyfhoek the accused did unlawful and intentionally and with the intent to steal break open and enter the house of Michelle Kirsten and did wrongfully and intentionally steal the following items: 1 x Sony Tech television R6 000.00 1x black Telefunken tablet R1000.00 and a navy blue backpack R300.00 all of which were the property or in the lawful possession of Michelle Kirsten.
[3] As alluded to, accused 1 and the appellant feature exclusively on this count. It was averred that the latter two contravened Section 49(1)(a) of the Immigration Act 13 of 2002. Section 49(1)(a) of the Immigration Act 13 of 2002 provides that anyone who enters or remains in or departs from the Republic in contravention of the Act shall be guilty of an offence and liable on conviction to a fine or imprisonment not exceeding two years. Resultantly, the accused were guilty of contravening the provision of section 49(1)(a) read with section 9(3)(a), 9(3)(b) , 9(4), 9A, 31, 32, 34 and 43 of the Immigration Act 13 of 2002. In that on or about the 20 October 2017 at or near Potchefstroom in the Regional Division of North West the accused being a citizen of Mozambique and therefore a foreigner, did wrongfully and unlawfully enter and remain in the Republic of South Africa in contravention of the Act by entering and remaining in the Republic without being in possession of valid passport or without being the holder of a valid permanent residence and, or without being issued with a valid visa by the Director General of the Department of a Home Affairs in terms of the provisions of the Act. or by not having entered the Republic at any port , thereby committing an offence.
[4] The appellant who enjoined legal representation confirmed the following statement in terms of section 112(2) of the CPA:
“I , the undersigned Alfred Gwambe do hereby declares as follows: I declare that I am the accused in this matter and I understand that I am being charged with the offence of house breaking with intent to steal and theft and contravention of the provisions of Section 49(1) of the Immigration Act 13/2002.
[1] The plea did not include the black Telefunken television, but the correct value of all items inclusive of the latter.
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