South Africa: North West High Court, Mafikeng

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S v Thapedi (CA 85/07) [2008] ZANWHC 44 (14 November 2008)

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IN THE HIGH COURT OF SOUTH AFRICA



BOPHUTHATSWANA PROVINCIAL DIVISION






CASE NO.:CA 85/07


In the matter between:




MASWANGANYI JOSEPH THAPEDI

APPELLANT



And




THE STATE


RESPONDENT


CRIMINAL APPEAL




MOGOENG JP & LANDMAN J




DATE OF HEARING 15 AUGUST 2008



DATE OF JUDGMENT 14 NOVEMBER 2008



FOR THE APPELLANT ADV MOTSHWANE



FOR THE RESPONDENT ADV MORE



JUDGMENT




LANDMAN J:



[1] The appellant was convicted in the Regional Court sitting in Ga-Rankuwa on 6 July 2007 on eight counts of robbery with aggravating circumstances and possession of a firearm without a licence. He was sentenced to 15 years imprisonment on counts 1 to 8 and 7 years imprisonment on count 9. The sentences were ordered to run
concurrently.


[2] At the commencement of the appeal, Mr Motshwane, who appeared for the appellant, was asked whether the appellant required leave to appeal from the court a quo in order for this court to entertain the appeal.



[3] Counsel for the appellant submitted that he had not applied for leave to appeal before the trial court because it was not a requirement. He said he would supply the court with relevant case law. Nothing was made available to us. On 1 October 2008 a letter was addressed to counsel inviting them to make formal submissions on
this point. This was followed by several telephone calls.


[4] Only, Mr More, who appeared on behalf of the respondent, reacted. He submits that:


4.1 Section 309(1 )(a) of the Criminal Procedure Act 51 of 1977 provides that any person convicted of any offence by any lower court may, subject to leave to appeal being granted in terms of sections 309B or 309C, appeal against such conviction and sentence to the High Court having jurisdiction. Exceptions apply if the accused was:



"(i) below the age of 14 years

(i) at least 14 years of age but below the age of 16 years and was not assisted by a legal representative at the time of conviction in a regional court....".

4.2 He submitted that the appellant is not entitled to an automatic right of appeal. The appellant was 17 years old at the time of the commission of the offence and he was represented by Mr Modise, a legal practitioner, during trial in the Regional Court.

4.3 The constitutionality of the provisions of sections 309B and 309C of the Act 51 of 1977 was challenged in the case of S v Steyn [2000] ZACC 24; 2001 (1) SA 1146 (CC). The court held that sections 309B and 309C of Act 51 of 1977 are inconsistent with the Constitution of the Republic of South Africa of 1996 and declared them invalid.

4.4 The order was suspended for period of 6 months from the date of the order.

4.5 This decision led the legislature to enact the Criminal Procedure Amendment Act 42 of 2003 which reinstated the requirement of leave to appeal against a conviction and sentence in the lower courts.

4.6 The constitutionality of the provisions of sections 309B and 309C of Act 51 of 1977 was again challenged in the case of Shinga v The State and Another (Society of Advocates Pietermaritzburg Bar); S v O'Connell and Others

2007 (2) SACR 28 (CC). The challenge on this ground failed. The Court held that leave to appeal procedure is desirable because it allows unmeritorious appeals to be identified and prevented and therefore not result in a waste of judicial resources.


4.7 The appellant was not entitled to appeal without the leave of the court a quo. Clearly this is so.

[5] As the record is before this Court, this Court is entitled to treat it as a review.

[6] The following facts are relevant to sentence:

  1. The offence was premeditated, well planned and executed. The appellant and his companion had their victims under observation prior to the attack. They waited for them to reach a spot were nobody would witness the attack.

  2. The community is seriously prejudiced by the unlawful use of firearms.

  3. The offence of robbery is prevalent and rife.

  4. The appellant has a previous conviction of murder which was committed in 2003, a year before this incident.

  5. The appellant was 17 years old at the time of the commission of the offence and his arrest.

  6. He attended Simpato Secondary School and was in grade 7 at the time of arrest.

  7. He has been in custody since the time of his arrest.

  8. The goods except a cellphone were recovered.

  9. He was assaulted by members of the community until he lost consciousness and was subsequently hospitalised.


[7] In my opinion the sentence imposed by the learned Magistrate induces a sense of shock. This court is free to interfere with the sentence.



[8] In my opinion the sentence on count 1 should be reduced to 10 (ten) years imprisonment and the sentence on count 2 reduced to 5 (five) years imprisonment.


Both sentences to run concurrently. [9] In the result:

  1. The appeal is struck from the roll.

2. The sentence on count 1 and count 2 is set aside and substituted with the following:


Count 1: Ten (10) years imprisonment Count Count 2: Five (5) years imprisonment.



Both sentences are ordered to run concurrently.


A A LANDMAN

JUDGE OF THE HIGH COURT


I concur


M T R MOGOENG

JUDGE PRESIDENT


Attorneys:



For the Appellant : Kgomo Mokhetle and Tlou

For the Respondent : The State Attorney