Nkosi and Another v S (A485/15) [2017] ZAGPPHC 1076 (8 September 2017)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA DIVISION)

Case No. A485/15

8/9/2017

(1) NOT REPORTABLE.

(2) NOT OF INTEREST TO OTHER JUDGES.

(3) REVISED.

In the matter between:

DOMINGA PAULOS NKOSI

1ST APPELLANT

SIPHO MICHAEL NHLENGETHWA

2ND APPELLANT

and

THE STATE

RESPONDENT

JUDGMENT

MILLAR, AJ (Raulinga and Mothle JJ concurring)

1. This is an appeal by the appellants against sentence only. Leave to appeal

was granted on petition to this court on 20 May 2015.

2. The appellants were charged and subsequently convicted in the Regional Court of Mpumalanga on 2 September 2008 of:

2.1 Count 1 - house breaking with intention to commit an offence unknown to the state;

2.2 Count 2 - robbery with aggravating circumstances;

2.3 Count 3 - 1s t Appellant only, unlawful possession of a firearm;

2.4 Count 4 - kidnapping;

2.5 Count 5 - unlawful possession of a firearm;

2.6 Count 6 - unlawful possession of ammunition;

3. The sentences imposed were:

3.1 Count 1 – 7 years imprisonment;

3.2 Count 2 – 15 years imprisonment;

3.3 Count 3 - 1st Appellant only - 3 years imprisonment;

3.4 Count 4 – 4 years imprisonment;

3.5 Count 5 – 3 years imprisonment;

3.6 Count 6 – 1 year imprisonment;

4. The sentences were not ordered to run concurrently. The result is that the 1st appellant was sentenced to an effective 33 years imprisonment and the 2nd appellant to an effective 30 years imprisonment.

5. The facts giving rise to the conviction and sentence were found by the trial court to be briefly as follows. The first and second appellants had on 1 July 2007 gone to the farm Bankplaas in the Sheepmoor district of Mpumalanga. They had broken into the house of a certain van Wyk and had accosted him there. One of the appellants[1] had brandished a knife and van Wyk had become involved in a struggle with him for control of the knife. The other appellant[2], who had a pistol had, then come up behind van Wyk and hit him on the head with it and had threatened to shoot him if he did not stop the struggle.

6. They had then taken him to the room where there were two safes were and instructed him to open them. The keys were on top of the safe's and it took time to open them because the appellants had mixed up the keys. Van Wyk had hesitated in helping them to open the safes and he had in consequence been cut with the knife on the right side of his neck. In the one safe was money to be used to pay van Wyk's workers, about R 3000,00 and in the other his own 288 pistol and ammunition.

7. They had then tied him up with the cord of a hairdryer, put a towel around

his head and pushed him under the bed in one of his children's bedrooms. They left the room. He was in the process of freeing himself when the appellant with the knife came back into the room and saw him. He closed the door and van Wyk finished freeing himself and jumped out of the bedroom window. He ran, trying to keep out of sight, towards where his vehicle was parked. He drove a short

distance to where one of his workers lived and fetched a stick. He called for help over the radio in his vehicle and then went back towards the house with his worker. By the time they arrived at the house the appellants were gone.

8. A search ensued and within 2 hours the appellants had both been arrested. The second appellant was arrested first and the first appellant a short while after him. The knife was found in the area where the appellants had moved after leaving the house and van Wyk's pistol on the ground next to the first appellant where he had been

apprehended. The second firearm, the one used by the first appellant initially was never recovered.

9. The appellants were also found in possession of property belonging to van

Wyk which had been removed from his house. The appellants at no stage admitted to any involvement in what had transpired and sought to convince the court they had been walking along the road when someone had tried to run them down with a motor vehicle. They had fled, fearing for their own safety. Having considered their evidence the court a quo rejected their version and they were convicted of the offences with which they had been charged.

10. That the appellants had committed the crimes for which they were convicted is not a matter in issue before this court.[3]

11. Although the appeal before us in respect of sentence only, it was argued on behalf of the appellants that there was a duplication of convictions. This is dealt with more fully below.

12. The approach to be adopted by an appeal court in considering sentence is that set out in S v SALZWEDEL & OTHERS[4] where it was stated that:

"An Appeal Court is entitled to interfere with a sentence imposed by a trial court in a case where the sentence is 'disturbingly inappropriate', or totally out of proportion to the gravity or magnitude of the offence, or sufficiently disparate, or vitiated by misdirection’s of a nature which shows that the trial court did not exercise its discretion reasonably"

13. In the present matter, the offences for which the appellants were convicted arose out of two separate events, the one following on from the other. The first related to the events inside the house and the second to events after they had left the house.

14. The first event began when the appellants broke into the house and once inside came upon van Wyk and proceeded to assault, threaten and rob him. It was in furtherance of this conduct that they tied him up and forced him under the bed in the child's bedroom. The reason for doing this was to prevent him from posing a threat to them or interfering

with them. There was no evidence to suggest that they had intended to kidnap him and indeed the evidence led at the trial established no such intention. Having robbed van Wyk of money and goods including his loaded firearm they left the house. The events in the house were the basis for Counts 1, 2 ,3 and 4, of the indictment.

15. The second event began when they left the house. Besides being in possession of the property they had stolen, they were now also in possession of van Wyk's loaded firearm and carried it with them when they left. This loaded firearm was in the possession of the first appellant and was subsequently found close to him when apprehended. The events after leaving the house were the basis for Counts 5 and 6 of the indictment.

16. Having regard to the two events, there has been a duplication of charges and convictions at least insofar as Counts 1 and 4 are concerned with Count 2. The approach to be followed is set out in S v Maneli[5]:

"To determine whether there has been an improper duplication of convictions the courts have formulated certain tests. However, these tests are not equally applicable in every case. One such test is to ask whether two or more acts were done with a single intent and constitute one continuous criminal transaction. Another is to ask whether the evidence necessary to establish one crime involves proving another crime"

17. In the present case for the events inside the house constitute a series of acts being one continuous criminal transaction. This is the case insofar as Counts 1,2 and 4 are concerned. There has in the circumstances been a duplication of convictions in respect of Counts 1 and 4 and these must be set aside.

18. The trial court took into account the personal circumstances of the appellants, the seriousness of the offences and the interests of the community.[6]

19. In regard to the first appellant he was 33 years old when sentenced. He was single, supporting a minor child and employed as a security guard earning R 1300,00 per month. The first appellant had a number of previous convictions for theft[7] and housebreaking with intent to steal and unlawful possession of a firearm and ammunition[8] He had been sentenced in 2000 to 9 years in prison and had been declared unfit to possess a firearm. He was released and committed

the offences for which he was now convicted on 1 July 2007. The first appellant has shown no remorse for his actions.

20. The second appellant was 38 years old at the time of sentence, single and earning R 700,00 per month as a brick maker. He too had previous convictions for assault with intent to do grievous bodily harm[9] murder and unlawful possession of a firearm and ammunition[10]. He had been sentenced to 10 years imprisonment. He was on parole when he committed the offences on 1 July 2007.[11] The second appellant has shown no remorse for his actions.

21. The trial court having regard to the circumstances of the appellants as well as the other factors traditionally taken into account for purposes of sentencing[12] imposed the minimum sentence for Count 2[13]. In respect of Counts 3, 5 and 6 the sentences imposed were for periods ·Sub stantiallylower than the maximum prescribed.[14] This was even though both the appellants had been previously convicted of the same offences.

22. In regard to sentence, it is settled that "the practice of taking more than one count together for purposes of sentence is neither sanctioned nor prohibited by law. In S v Young 1977 (1) SA 602 (A) at 610 E-H Trollip JA said:

"Where multiple counts are closely connected or similar in point of time, nature, seriousness, or otherwise, it is sometimes a useful, practical way of ensuring that the punishment is not unnecessarily duplicated or its cumulative effect is not too harsh on the accused"

23. In the present case, the cumulative effect of the sentences imposed for all the Counts of the indictment, if confirmed are disproportionately

harsh and have the effect of rendering any of the mitigating factors placed before the trial court as nugatory. The effective period of imprisonment on all these counts was 33 years for the first appellant and 30 years for the second appellant and in my view disproportionately harsh.

24. The sole reason advanced by the trial court for its decision not to order the sentences to run concurrently was because - "daardie ander vuurwapen le nog in die veld. Dit is rede hoekom die hof besluit het om nie vonnisse te laat saam loop nie"[15] This was in my view a misdirection. The first appellant had been convicted of the possession of the firearm used by him. The fact that it had not been found afterwards was an irrelevant consideration for purposes of sentencing either of the appellants.

25. Those counts of the indictment that all arose from the same event, Counts 2 and 3 from the first event and Counts 5 and 6 from the second event, and the failure of the trial court to take account of this by ordering that the sentences on those counts run concurrently was a misdirection.

26. For the reasons set out above I propose the following order:

26.1 The convictions on Counts 1 and 4 are set aside.

26.2 The sentences imposed by the trial court on Counts 2 and 3 (for first appellant only) are confirmed and are to run concurrently.

26.3 The appeal against sentence in respect of Counts 5 and 6 is dismissed

26.4 The sentences imposed by the trial court on Counts 5 and 6 are to run concurrently.

26.5 The effective term of imprisonment for which the appellants are sentenced is as follows:

26.5.1 The first appellant 18 years imprisonment.

26.5.2 The second appellant 18 years imprisonment.

26.5.3 All the sentences above are antedated to 2 September 2008.

A MILLAR

ACTINGJUDGE OF THE HIGH COURT

GAUTENG DIVISION , PRETORIA

I AGREE AND IT IS SO ORDERED

J RAULINGA

JUDGE OF THE HIGH COURT

I AGREE

SP MOTHLE

HEARD ON:

8 SEPTEMBER 2017

JUDGMENT DELIVERED ON: SEPTEMBER 2017

COUNSEL FOR THE APPELLANTS: S MOENG

INSTRUCTED BY:

THE PRETORIA JUSTICE CENTRE

COUNSEL FOR THE RESPONDENT: ADV J CRONJE

INSTRUCTED BY:

THE STATE ATTORNEY

[1] He was described as the shorter of the two - "die kleintjie" - This was the second appellant.

[2] He was described as the taller of the two - "die lang persoon" - This was the first appellant.

[3] Toubie v S (635/11) [2012) ZASCA 133 (27 September 2012) In a minority judgment Heher JA stated: "[36] An appeal court will in a proper case allow an enlargement of the issues beyond the grounds on which leave has been granted: Legal Aid Board v The State 2011 (1) SACR 166 at 176. Whether it will do so depends on the cumulative effect of a number of considerations, such as (i) whether there is sufficient merit in the ground to warrant its inclusion; (ibid at 176b) (ii) whether any party may be prejudiced by its inclusion; (ibid at 176c) (iii) whether the issue that it raises has been fully canvassed so as to permit of a fair and complete assessment of its merits: cf. Shill v Milner 1937 AD 101 at 105."

[4] 2000 (1) ALL SA 229 (AD) at 232i; see also ZC Mndebele v The State (A287/16) -an unreported judgment of the Full Court in this Division delivered on 31 August 2017 in which the court set out in some detail the approach to be adopted as follows: "With regard to an appeal against sentence the starting point is R v Maphumulo and Others 1920 AD 56 where the Court stated that: "The infliction of punishment is pre-eminently a matter for the discretion of the trial court. It can better appreciate the atmosphere of the case and can better estimate the circumstances of the locality and the need for a heavy or light sentence than an appellate tribunal and we should be slow to interfere with its discretion." [12] There are of course instances in which the Appeal Tribunal may interfere with the discretion of the trial court. These instances have been set out in many cases, among them, R v S 1958 (3) SA 102 at page 104 as follows: "There are well recognised grounds on which a Court of Appeal will interfere with a sentence: where the trial Judge - or magistrate, as the case may be, has misdirected himself on the law or facts, or has exercised his discretion capriciously or upon a wrong principle or so unreasonably as to induce a sense of shock". See also in this regard Ex parte Neethling and Others 1951 (4) SA 331AD at page 335; Rex v Zulu and Others 1951 (1) SA 489 (N) 496,497: 'Where no such ground exists, however, the appeal court will not interfere merely because the appeal judges consider that they themselves would not have imposed the sentence." The court a quo correctly pointed out that the assessment of an appropriate sentence required a consideration of the following factors: the crime or seriousness of the crime; the personal circumstances of an accused person; and the interest of the society. These factors are called the "triad" according to S v Zinn 1969(2) SA 537 (A). It is required of the court assessing an appropriate sentence to put all these three factors in the imaginary scale, to weigh them giving each one of them equal weight and to distil from them what in its view is an appropriate sentence. In weighing all these three factors the Court should avoid over- or under emphasizing any one of the factors at the expense of the others unless it commits a misdirection. In S v Theron 1986 (1) SA 884 (A) at 896, Botha JA, as he then was, set out this position as follows: "Die opweging teenoor mekaar van die verskillende faktore wat tersake is by die vasstelling van 'ngepaste vonnis ... is dee/ van die diskresie wat aan die Verhoorregter toekom om oor 'nbepaaldevonnis te besluit Oorbeklemtoning van sen faktor wat neerkom op 'n wesenlike mistasting (en sal 'nbevinding regverdig) dat hy sy diskresie nie redelik uitgeoefen het nie." In an article entitled "Crime and Punishment in South Africa 1975 at page 150, Nicholas J stated as follows: "A criminal sentence cannot in the nature of things, be a matter of precise calculation .... There are no scales by which these matters can be measured and there is no relationship which makes it possible to express them in terms of punishment."

[4] 2000 (1) ALL SA 229 (AD) at 232i; see also ZC Mndebele v The State (A287/16) -an unreported judgment of the Full Court in this Division delivered on 31 August 2017 in which the court set out in some detail the approach to be adopted as follows:

"With regard to an appeal against sentence the starting point is R v Maphumulo and Others 1920 AD 56 where the Court stated that:

"The infliction of punishment is pre-eminently a matter for the discretion of the trial court. It can better appreciate the atmosphere of the case and can better estimate the circumstances of the locality and the need for a heavy or light sentence than an appellate tribunal and we should be slow to interfere with its discretion."

[12] There are of course instances in which the Appeal Tribunal may interfere with the discretion of the trial court. These instances have been set out in many cases, among them, R v S 1958 (3) SA 102 at page 104 as follows:

"There are well recognised grounds on which a Court of Appeal will interfere with a sentence:

where the trial Judge - or magistrate, as the case may be, has misdirected himself on the law or facts, or has exercised his discretion capriciously or upon a wrong principle or so unreasonably as to induce a sense of shock".

See also in this regard Ex parte Neethling and Others 1951 (4) SA 331AD at page 335; Rex v Zulu and Others 1951 (1) SA 489 (N) 496,497:

'Where no such ground exists, however, the appeal court will not interfere merely because the appeal judges consider that they themselves would not have imposed the sentence."

The court a quo correctly pointed out that the assessment of an appropriate sentence required a consideration of the following factors: the crime or seriousness of the crime; the personal circumstances of an accused person; and the interest of the society. These factors are called the "triad" according to S v Zinn 1969(2) SA 537 (A). It is required of the court assessing an appropriate sentence to put all these three factors in the imaginary scale, to weigh them giving each one of them equal weight and to distil from them what in its view is an appropriate sentence. In weighing all these three factors the Court should avoid over- or under emphasizing any one of the factors at the expense of the others unless it commits a misdirection. In S v Theron 1986 (1) SA 884 (A) at 896, Botha JA, as he then was, set out this position as follows:

"Die opweging teenoor mekaar van die verskillende faktore wat tersake is by die vasstelling van 'ngepaste vonnis ... is dee/ van die diskresie wat aan die Verhoorregter toekom om oor 'nbepaaldevonnis te besluit Oorbeklemtoning van sen faktor wat neerkom op 'n wesenlike mistasting (en sal 'nbevinding regverdig) dat hy sy diskresie nie redelik uitgeoefen het nie." In an article entitled "Crime and Punishment in South Africa 1975 at page 150, Nicholas J stated as follows:

"A criminal sentence cannot in the nature of things, be a matter of precise calculation .... There are no scales by which these matters can be measured and there is no relationship which makes it possible to express them in terms of punishment."

[5] 2009 (1) SACR 509 (SCA) at 512G and also to the footnotes referred to therein S v Grobler and Another 1966 (1) SA 507 (A) at 511 G-H; and S v Prins and Another 1977 (3) SA 807 (A) at 814 C-E.

[6] see Judgment of the court a quo- Record page 148 - 158

[7] see Record page 237 - this offence was committed on 21 July 1997

[8] see Record page 237 - this offence was committed on 13 June 1999

[9] see Record page 240 - this offence was committed on 29 August 1995

[10] see Record page 240 - this offence was committed on 1 August 1998

[11] see Record page 241 - he was released on parole on 14 September 2006 and was supposed to have been under supervision until 3 May 2009.

[12] S v Malgas 2001 (1) SACR 469 (SCA); 2001 (2) SA 1222; [2001] 3 ALLSA 220

[13] In terms of S 51(2) of The Criminal Law Amendment Act 105 of 1997

[14] S 120(10) (a) of the Firearms Act 60 of 2000 and also S 90 read together with Schedule 4 which provides for a maximum sentence of 10 years.

[15] Record page 158, lines 3 - 5 and see also S v Moswathupa 2012 (1) SACR 259 (SCA)