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South Africa Judgment

South Gauteng High Court, Johannesburg

S v Nkomo (A123/2018) [2019] ZAGPJHC 420 (29 April 2019)

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Source document

01

Holding and result

The court found that the magistrate correctly exercised her discretion in sentencing, except for the error regarding the appellant's offender status. The appellant should be treated as a first offender, as conceded by the State. The magistrate overcompensated for the appellant's illegal status, which had already been considered in sentencing. There were no substantial or compelling circumstances to deviate from the minimum sentence, and the circumstances justified a longer sentence. The sentence was substituted to reflect the correct offender status and to back-date the commencement of the sentence to the date of arrest. The appellant was also declared unfit to possess a firearm.

Court disposition

Appeal against sentence partially upheld; sentence substituted and back-dated.

Orders

  • The accused is sentenced to 19 years' imprisonment in terms of section 51(2) of Act 105 of 1997.
  • The sentence will run from the date of arrest, that is 5 September 2013.
  • In terms of section 276B(1)(a) of the Criminal Procedure Act, the accused should not be considered for parole until he has served two thirds of this sentence.
  • In terms of section 103(1) of Act 60 of 2000, the accused is declared unfit to possess a firearm.

02

Material facts

Parties

The State

Respondent

Ben Nkomo

Appellant

Amounts and remedies

  • Imprisonment Term Years: 19

03

Procedural history

  1. Posture

    Criminal Appeal / Appeal Against Sentence

04

Questions and positions

Legal issues

Party arguments

Applicant
The appellant argued that he should be treated as a first offender and that the time he had already served should be fully considered in mitigation of sentence. He also contended that the magistrate overemphasized his illegal status in the country when determining sentence.
Respondent
The State conceded that the appellant should be treated as a first offender. However, it maintained that the magistrate correctly applied her discretion in sentencing and that there were no substantial or compelling circumstances to justify deviation from the minimum sentence prescribed by law.

05

Court’s reasoning

  1. 01

    Section 51(2) of Act 105 of 1997

    The minimum sentencing regime under section 51(2) of Act 105 of 1997 must be applied unless substantial and compelling circumstances exist to justify deviation.

  2. 02

    Section 276B(1)(a) of the Criminal Procedure Act

    Parole eligibility is governed by section 276B(1)(a) of the Criminal Procedure Act, which requires that two thirds of the sentence be served before parole consideration.

  3. 03

    Section 103(1) of Act 60 of 2000

    A person convicted of certain offences may be declared unfit to possess a firearm under section 103(1) of Act 60 of 2000.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the magistrate correctly exercised her discretion in sentencing, except for the error regarding the appellant's offender status. The appellant should be treated as a first offender, as conceded by the State. The magistrate overcompensated for the appellant's illegal status, which had already been considered in sentencing. There were no substantial or compelling circumstances to deviate from the minimum sentence, and the circumstances justified a longer sentence. The sentence was substituted to reflect the correct offender status and to back-date the commencement of the sentence to the date of arrest. The appellant was also declared unfit to possess a firearm.

Obiter and limits

  • The court noted that the interests of justice require that the sentence be back-dated to the date of incarceration.
  • The magistrate's consideration of the appellant's illegal status was already factored into the sentence and should not have been double-counted.

Court disposition

Appeal against sentence partially upheld; sentence substituted and back-dated.

  • The accused is sentenced to 19 years' imprisonment in terms of section 51(2) of Act 105 of 1997.
  • The sentence will run from the date of arrest, that is 5 September 2013.
  • In terms of section 276B(1)(a) of the Criminal Procedure Act, the accused should not be considered for parole until he has served two thirds of this sentence.
  • In terms of section 103(1) of Act 60 of 2000, the accused is declared unfit to possess a firearm.

Source and reliance status

South Gauteng High Court, Johannesburg

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Judgment reading view

Judgment text

The complete available source text.

Source document

South Gauteng High Court, Johannesburg

Judgment

[2019] ZAGPJHC 420

(Inlexso Innovative Legal Services) / as

IN THE HIGH COURT

OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: A123/2018

DATE: 2019-04-18

BEFORE HONOURABLE

YACOOB J AND DU PLESSIS AJ

In the matter between

THE

STATE

and

BEN

NKOMO

Accused

J U D G M E N T

We have considered the record in this matter and heard argument from counsel. We have come to the conclusion that the magistrate correctly applied her discretion, save for having made an error regarding whether the appellant should be treated as a first offender or second offender. The state conceded in argument that the appellant should be treated as a first offender.

We also consider that the magistrate, in considering whether to take into account the time served, overcompensated for the fact that the appellant was illegally in the country. This was already taken into account by the Magistrate in considering the sentence itself, and in applying section 276B (1)(a) of the Criminal Procedure Act. It is therefore our view that it would be in the interest of justice that the sentence be back-dated to the date on which the appellant was incarcerated. In our view, there are no substantial or compelling circumstances to deviate from the minimum sentence and in fact, as the magistrate correctly considered, there are circumstances justifying an additional or longer sentence.

Under the circumstances, the sentence imposed by the magistrate is substituted by the following:

1. The accused is sentenced to 19 years' imprisonment in terms of section 51(2) of Act 105 of 1997.

2. The sentence will run from the date of arrest, that is 5 September 2013.

3. In terms of section 276(B) (1)(a) of the Criminal Procedure Act, the accused should not be considered for parole until he has served two thirds of this sentence.

4. In terms of section 103(1) of Act 60 of 2000, the accused is declared unfit to possess a firearm.

DU PLESSIS, AJ: I AGREE

…………………………….

YACOOB,

J

JUDGE

OF THE HIGH COURT

DATE: …………………………

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Section 51(2) of Act 105 of 1997

Legislation

Legislation referenced in the available case record.

Section 276B(1)(a) of the Criminal Procedure Act

Legislation

Legislation referenced in the available case record.

Section 103(1) of Act 60 of 2000

Legislation

Legislation referenced in the available case record.

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