Makambilwa and Another v S (A1046/2006) [2009] ZAGPPHC 388 (23 September 2009)
- Citation
- [2009] ZAGPPHC 388
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Makhafola, Mabuse
- Case number
- A1046/2006
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Makhafola, Mabuse
- Case number
- A1046/2006
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The appeal court found that the trial court had properly exercised its sentencing discretion, duly considering the Zinn triad and all relevant facts. There was no misdirection or error in the sentencing process. The sentences imposed were not inappropriate or shockingly severe, and were proportionate to the seriousness of the offences. The trial court was lenient in taking counts together for sentencing, even though the offences were committed on different dates. The sentences serve the purposes of punishment, including deterrence and retribution. Accordingly, there was no basis for appellate interference, and the appeals were dismissed.
Court disposition
Appeals dismissed; sentences confirmed.
Orders
- The sentences imposed by the court a quo are confirmed.
- The appeals of both appellants are dismissed.
02
Material facts
Parties
Tombo Makambilwa
AppellantM Hadiz
AppellantThe State
Respondent03
Procedural history
Posture
Criminal Appeal / Appeal Against Sentence
04
Questions and positions
Legal issues
- 01
Whether the sentences imposed on the appellants were inappropriate or shockingly severe.
- 02
Whether the trial court misdirected itself in exercising its sentencing discretion.
- 03
Whether the appeal court is competent to interfere with the sentences imposed by the lower court.
Party arguments
- Applicant
- The appellants argued that the sentences imposed were excessive and not justified by the circumstances of their offences. They contended that the trial court failed to properly consider mitigating factors and that the sentences were disproportionate to the offences committed.
- Respondent
- The respondent maintained that the trial court exercised its sentencing discretion correctly, considering all relevant factors including the seriousness of the offences and the interests of society. The respondent argued that there was no misdirection and that the sentences were appropriate and not shockingly severe.
05
Court’s reasoning
Legal principles
- 01
R v Mapulo and Others 1920 AD 56 at 57
The sentencing powers are within the judicial discretion of the trial court, and appellate interference is only justified where there is a misdirection.
- 02
S v Runds 1978 (4) SA 304 (A)
An appeal court will not interfere with a sentence unless it is vitiated by misdirection or is disturbingly inappropriate.
- 03
S v Zinn 1969 (2) SA 537 (A)
The Zinn triad requires consideration of the crime, the offender, and the interests of society in sentencing.
- 04
S v Rabie 1975 (4) SA 855 (A)
Sentences must be proportionate to the seriousness of the offence and serve the purposes of punishment: deterrence, prevention, reform, and retribution.
- 05
S v Juta 1988 (4) SA 962 (TK) at 927 D-F
Judicial discretion in sentencing is bound by precedent and authority; appellate courts should not interfere with correct findings.
06
Ratio, limits and disposition
Ratio decidendi
The appeal court found that the trial court had properly exercised its sentencing discretion, duly considering the Zinn triad and all relevant facts. There was no misdirection or error in the sentencing process. The sentences imposed were not inappropriate or shockingly severe, and were proportionate to the seriousness of the offences. The trial court was lenient in taking counts together for sentencing, even though the offences were committed on different dates. The sentences serve the purposes of punishment, including deterrence and retribution. Accordingly, there was no basis for appellate interference, and the appeals were dismissed.
Obiter and limits
- The trial court was lenient by grouping counts for sentencing, despite the offences being committed on different dates.
- There is nothing on record to suggest that the trial court failed to exercise its judicial discretion in accordance with precedent.
Court disposition
Appeals dismissed; sentences confirmed.
- The sentences imposed by the court a quo are confirmed.
- The appeals of both appellants are dismissed.
Source and reliance status
North Gauteng High Court, Pretoria
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 Gauteng High Court, Pretoria
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH GAUTENG DIVISION. PRETORIA
CASE NUMBER: A1046/2006
DATE: 21/09/2009
TOMBO
MAKAMBILWA
1st
APPELLANT
M
HADIZ
2nd
APPELLANT
V
THE
STATE
RESPONDENT
Review Judgment:
Makhafola J
Mabuse
AJ
JUDGMENT
MAKHAFOLA J:
INTRODUCTION:
1. The 1st Appellant stood trial in the Piet Rerief Regional Court as Accused 2 and he was represented by counsel. He faced two counts namely counts 5 and 7 relating to dealing in MDMA tablets also known as “ecstasy” and 0.19 gram cocaine also known as “halfmoon rock cocaine.” He pleaded guilty and he was found guilty as charged. He was sentenced to 8 years imprisonment.
2. The 2nd appellant who stood trial in the same court was accused 3. He pleaded guilty to counts 1 and 8 relating to dealing with “ecstasy”
tablets and “halfmoon cocaine" respectively. He was found guilty as charged and he was sentenced to 15 years imprisonment.
3. They are now appealing against the sentences imposed on them on 8 August 2006.
4. The sentencing powers arc within the judicial discretion o the court that tries the accused.
Vide: R
V Mapulo and Others 1920 AD 56 at 57
S V RUNDS 1978 (4) SA 304 (A)
S V ISAAK 1957 (2| SA 385 (O) at 386
5. Once there is no misdirection committed by the sentencing court, the appeal court will not interfere in that sentence.
6. The sentences imposed on the appellants are not shocking at all, and I find no good ground that this court should set them aside.
7. The sentences imposed on the appellants are not inappropriate or shocking to say the least. The trial court was actually lenient by taking the counts together for the purposes of sentencing even where the offences were remote in time becausc they had been committed on different dates.
8. The Zinn triad was duly considered by the court a quo during sentencing. I find no misdirection in the manner the court had assessed and evaluated the facts during the sentencing stage.
Vide: S
V ZINN 1969 (2) SA 537 |A).
9. I further find nothing on record to suggest that the court did not exercise its judicial discretion which is bound bv judicial precedent and authorit.
Vide: S V JUTA 1988 (4| SA 962 (TK) at 927 D-F.
10. I find that the sentences are proportionate to the serious offences for which the appellants had been convicted. The sentences are deterrent in csscnce which is a crucial aspect of sentencing. The main purposes of punishment are to deter, prevent, reform and retribute the offender and the would-be offenders. The sentences imposed serve that purpose.
Vide: S V RABIE 1975 (4| SA 855 (A).
11. This court is not competent to interfere with correct findings of a lower court. In the circumstances, I am of the view that the appeals are without merit and should be dismissed.
I give the following order:
(a) The sentences imposed by the court a quo are confirmed.
(b) The appeals of both appellants are dismissed.
K.
MAKHAFOLA
JUDGE
OF THE HIGH COURT
I agree, and it is so ordered.
P.M.
MABUSE
ACTING
JUDGE OF THE HIGH COURT
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