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FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC OF SOUTH AFRICA

Appeal No: A192/09

In the matter between:

SIMON TEBA …............................................................................1st Appellant

PHILIP MAKATSA ….................................................................2nd Appellant

and

THE STATE …..................................................................................Respondent

CORAM: CILLIe, J efVAN DER MERWE, J etG, KHAN, AJ

JUDGMENT BY: G. KAHN, AJ

DELIVERED ON: 26 MAY 2011\

[1] This is an appeal by the Appellants against the sentence imposed by the Court a quo and is heard before this Court with the leave of the Court below. The Appellants, who comprised accused 2 and 3 in the Court below, were each convicted of one count of murder and one count of robbery with aggravating circumstances respectively. In consequence, on 18 February 2000, they were each sentenced to life-imprisonment in respect of the count of murder and 15 years imprisonment in respect of that of robbery.

[2] It is a trite principle of our law that within the domain of sentencing, the trial court is primarily possessed of the requisite judicial discretion wherewith to impose a sentence. Furthermore, that the court of appeal will not interfere with such discretion unless the trial court failed to exercise its discretionary function judiciously, misdirected itself in material respects, imposed a shockingly inappropriate sentence or imposed a sentence which no reasonable court would have done (S v Malgas 2001 (1) SACR 469 (SCA; S v Salzwedel and Others 2000 (1) SA 786 (SCA) and S v PETKAR 1988 (3) SA 571 (A) at 574 C).

[3] I shall assume, without making a formal finding that the provisions of Section 51 of the General Law Amendment Act 105 of 1997 (the Act) applied to the two aforementioned criminal counts in casu. Sub-section 51(3) of the Act provides, inter alia, that the Court is obliged to impose the prescribed minimum sentences as provided for in sub­sections 51(1) and 51(2), unless there are substantial and compelling circumstances which justify the imposition of a lesser sentence.

[4] Sub-section 51(1) read with Part 1 of Schedule 2 of the Act provides that where an accused is convicted of murder which was planned or premeditated or where the death of the victim was caused following robbery or attempted robbery with aggravating circumstances, said accused shall be sentenced to life imprisonment in the absence of substantial and compelling circumstances which would justify a lesser sentence. On the count of murder in casu, the Appellants were liable to be sentenced to life imprisonment in the absence of substantial and compelling circumstances. Regarding the charge of robbery wit aggravating circumstances, each accused was liable to be sentenced to a minimum of 15 years in the absence of substantial and compelling circumstances.

[5] Subsection 51 (2) read with Part 11 of Schedule 2 of the Act makes provision for the imposition of a minimum sentence relative to the charge of robbery with aggravating circumstances, or where it involves the taking of a motor vehicle, it places an obligation on the trial court to impose a specified sentence upon the accused, in his/her capacity as first offender. Such specified sentence constitutes a term of imprisonment of not less than fifteen (15) years in the absence of substantial and compelling circumstances, which would justify a lesser sentence.

[6] The trial judge in the court a quo was acutely aware of the aforedescribed provision, given his sweeping reference thereto. He, inter alia, opined the following in his judgment at page 25, lines 4-8, (inclusive thereof): "Sub-artikel 51(3) van die wet bepaal in algemene terme dat indien daar wesentlike en dwingende omstandighede bestaan wat die oplegging van n mindere vonnis as die vonnisse in subartikels 51 (1) en 51 (2) van die wet voorgeskryf regverdig, ek so mindere vonnis kan ople". The trial judge, in his evaluation of the evidence, found that the Appellants' collective moral blameworthiness was reduced in consequence of the following prevailing circumstances in the trial a quo:

(i) the Appellants" respective youthfulness

(ii) the absence of a pre-meditated criminal act

(iii) that the accused did not initiate the crime, more particularly that of robbery, which, having triggered off a domino chain of events, ultimately resulting in the murder of the victim

(iv) that accused 1 in the trial a quo, who clearly constituted the proverbial leader of the pack, initiated the offences and played a leading role, thereby reducing the blameworthiness of the Appellants, given that their actions were attributed largely to their youthfulness and loyalty to accused number 1.

[7] The trial judge notably accepted that the aforementioned circumstances constituted substantial and compelling circumstances and, without making a formal finding stated that said circumstances, in appropriate circumstances, are indeed compelling and substantial as contemplated in Section 51 (3) (a) of the Act. However, he proceeded to state that the acceptance of the said circumstances as compelling and substantial did not mean that he was obligated to impose a lesser sentence than that prescribed by the Act and that he was still possessed of the judicial discretion to consider an appropriate sentence in the light of all the prevailing facts.

[8] The trial judge thus evaluated the nature and severity of the offences, the prevalence and high incidence of the offences, the constitutional value and the protection of the right to life, the duty of the judiciary to stem the tide of crimes of murder by removing the offenders permanently from society thereby reducing the high rate of violent crimes and further conveying a message to civil society that violent crimes will not be tolerated.

[9] The trial judge continued to evaluate whether the Appellants as human material could be rehabilitated. He found that they showed no remorse in and during the proceedings and more particularly when delivering their testimony. The trial judge found that the accused tried to distance themselves from crime and to lesser or greater degree attempted to shift the blame to accused 1. The court nevertheless found that the Appellants showed remorse or were capable of developing remorse later in life and, as such, they constituted material for rehabilitation. The trial judge considered the extreme cruelty with which the victim was murdered together with the determination implemented by the accused to ensure that the victim did not survive the attack and concluded that despite the presence of substantial and compelling circumstances in the trial a quo he was not obliged to depart from the sentence prescribed by the Act. It is my view; the trial judge misdirected himself in that respect.

[10] The same principle was raised and deliberated upon in the full bench judgment of S v SM and Others 2010 (1) SACR 504 (WCC). The full bench in that case was split on the issue. The majority in that case reasoned as the trial judge did in this matter. In the minority judgment, Moosa J, postulated the issue in para 1 as follows:

"The crisp legal issue that has to be determined in this appeal on sentence, aside from the factual issues, is: can the trial court, after having found that substantial and compelling circumstances exist as envisaged in s 51(3) (a) read with ss (1) of the Criminal Law Amendment Act 105 of 1997 (the Act), exercise its sentencing discretion to impose life imprisonment? This question impacts on appellants 1, 2 and 3 who were sentenced to life imprisonment on the charge of murder. A useful point of departure is to ascertain the intention of the legislature as reflected in s 51(3) (a) and as it obtained at the time sentences were handed down in this matter."

After analyzing the relevant statutory provisions and the case law, Moosa J, concluded as follows:

"[9] In the case of s 51(3) (a) read with ss (1) of the Act, if no substantial and compelling circumstances are found to exist, the court has no discretion, but to impose life imprisonment. However, should the court in such case find that substantial and compelling circumstances exist to impose a lesser sentence, then the residual discretion of the court is circumscribed, in that the court is obliged to impose a sentence other than life imprisonment, in accordance with the doctrine of proportionality, by taking into consideration that the legislature has ordained life imprisonment for such scheduled offence in the absence of substantial and compelling circumstances.

[10] In the case of s 51(3) (a) read with ss (2), if no substantial and compelling circumstances are found to exist, in my view, the discretion of the court is circumscribed, to the extent that it is free to impose any sentence, depending on the circumstances of the case, but not less than that prescribed. However, should the court find substantial and compelling circumstances exist to impose a lesser sentence, the residual discretion of the court to impose sentence is circumscribed, to the extent that it is obliged to impose a sentence other than that prescribed, but in accordance with the doctrine of proportionality, by taking into consideration that the legislature has ordained a prescribed sentence for such scheduled offence in the absence of substantial and compelling circumstances."

[11] I am ad idem with the ratio decidini that led Moosa J to the conclusions outlined in paras (9) and (10) of the excerpt cited supra. The conclusion in para (10) relates to a robbery charge and is equally applicable to the robbery count in this matter.

[12] Having found that the trial judge misdirected himself in a material respect, I am at liberty to impose sentencing afresh in respect of both the counts of murder and robbery subject to the residual discretion to impose a lesser penalty than those prescribed by the Act but in accordance with the doctrine of proportionality. I will accordingly proceed to sentence afresh.

[13] The personal circumstances of both Appellants have been fully outlined in the judgment of the court a quo and as such I shall refrain from repeating the same in this judgment. The substantial and compelling circumstances have likewise been adequately described. The court a quo further found that the Appellants displayed an element of remorse or could develop remorse with the passage of time and that the prospect of rehabilitation applies to both Appellants.

[14] On the other hand the court a quo, and in my view correctly, emphasized the cruel and gruesome nature of the murder and the seriousness thereof; inter alia that the robbery was the precursor of the murder; the prevalence and high incidence of crimes like murder and robbery in the jurisdiction of the court a quo; the duty of the courts to protect members of society by imposing heavy sentences that will send a clear message to the community at large that violent crimes will not be tolerated, thereby comprising an element of deterrence. The victim was an only child thus rendering his elderly parents childless. The motor vehicle was destroyed causing the victims to sustain pecuniary damages to the extent of R18 000.00.

[15] Having considered all the circumstances including the nature and severity of the offences, the interests of society, the interests of the victims, the personal circumstances of the Appellants, and the purpose of punishment, my conclusion is that direct imprisonment is the only appropriate sentence in casu. The personal circumstances of each Appellant and his respective involvement are substantially the same. There is thus no reason to treat them differently. I also take into consideration that they were in custody as awaiting trial prisoners for approximately 16 months. The circumstances which underpin the chain of events relative to both criminal counts occurred at the same time and place, concern the same parties and arose from the same facts. In the circumstances, I propose that the sentences run concurrently.

[16] In the result, I set aside the sentence of the court a quo and substitute the following sentences in its stead:

(i) Count 1. murder: accused 2 and 3 are sentenced to 20 years
imprisonment; and

(ii) Count 2, robbery with aggravating circumstances: accused 2
and 3 are sentenced to 10 years imprisonment.

The sentence in respect of count 2 (robbery) shall run concurrently with the sentence imposed in respect of count 1 (murder).

KHAN, AJ

I concur

VAN DER MERWE, J

I concur

CILLIE, AJ

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