FORM A
FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

PARTIES: FEZILE YAWA				APPELLANT

and 

THE STATE 					RESPONDENT

•	Registrar: Case no: : CA&R46/09 		
•	Magistrate: 
•	High Court: 	EASTERN CAPE HIGH COURT, GRAHAMSTOWN

DATE HEARD: 09/09/09 					
	
DATE DELIVERED: 09/09/09
     
JUDGE(S): PLASKET J and FORTUIN AJ

LEGAL REPRESENTATIVES –

Appearances:
•	for the Appellant(s): Ms E. Theron,			 
•	for the Respondent(s): Mr D. Els  	
Instructing attorneys:
•	Appellant(s): Legal Aid Board, Port Elizabeth				
•	Respondent(s): Director of Public Prosecutions, Grahamstown

CASE INFORMATION -
•	Nature of proceedings	:Appeal against sentence  	

IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – GRAHAMSTOWN)

						CASE NO: CA&R46/09
						DATE HEARD: 09/09/09
						DATE DELIVERED: 09/09/09
						NOT REPORTABLE

In the matter between: 

FEZILE YAWA				APPELLANT

and 

THE STATE 					RESPONDENT

JUDGMENT

PLASKET J

[1] The appellant and a co-accused were convicted in the Regional Court sitting in Port Elizabeth with the offence of robbery with aggravating circumstances. They were sentenced to 15 years imprisonment, the minimum sentence prescribed for this offence by the Criminal Law Amendment Act 105 of 1997, the trial magistrate having found that substantial and compelling circumstances were not present. The appellant appeals against this sentence.  

[2] On 27 October 2006, the appellant and his co-accused grabbed the complainant from behind while he walked in a street, held a knife to his throat and robbed him of everything they found in his pockets. The complainant appears to have been a school boy. When he was being searched by the appellant and his co-accused, one of his friends began to move towards him.  One of the robbers told this boy to stop or he would slit the throat of the complainant.  

[3] As soon as the robbers made off, the police were called. They responded quickly and both accused were apprehended shortly thereafter. When they were searched, the complainant’s property was found in their possession. The items that were stolen were a wallet, a bank card, a Virgin Active gym card, one American dollar and a cell phone. The complainant estimated their combined value to be in the region of R2 500.00.  

[4] The appellant at the time of the trial was 29 years old. He is single but is the father of four children. He was unemployed but was the recipient of a disability grant. He is not a first offender: he has previous convictions for assault with intent to do grievous bodily harm and theft.  

[5] It is argued that the magistrate misdirected himself in finding that no substantial and compelling circumstances were present and that the following together constitute substantial and compelling circumstances justifying a departure from the prescribed minimum sentence: the appellant’s youthfulness; that his previous convictions were not serious; the fact that the complainant was not injured; the fact that all of the stolen items were recovered; and the fact that the appellant is the father of young children whom he maintains with a grant. It is also argued that the magistrate overemphasised the interest of the community at the expense of the personal circumstances of the appellant.  

[6] The way in which the minimum sentence provisions of the Criminal Law Amendment Act are to be applied was definitively set out in S v Malgas 2001 (1) SACR 469 (SCA). From this case it is clear that the intention of the legislature, in enacting s 51 of the Act, was that the sentences prescribed for the listed crimes were to be considered to be ordinarily appropriate.  (See Malgas at paragraph 8.) A sentencing court is, however, granted a discretion to deviate from a prescribed sentence if it considers that substantial and compelling circumstances are present that justify a less severe sentence.  (See s 51(3) of the Act and Malgas at paragraphs 8-9.) While the prescribed sentences are not to be departed from lightly, there remains a duty on a presiding officer to ensure that the prescribed sentence is proportionate to the ‘crime, the criminal and the needs of society’. If it is not, he or she is entitled to – and must – impose a less severe sentence. (See Malgas at paragraph 25I and S v Vilakazi [2008] 4 All SA 396 (SCA) at paragraph 15.) 

[7] I turn now to the factors that, it is argued, constitute substantial and compelling circumstances. The first is the alleged youthfulness of the appellant. As stated above, the appellant was 29 years old when he was convicted. He would have been about 27 years old at the time that the offence was committed. He was a mature adult, not an immature youth. His age is thus not a factor that operates in his favour.  

[8] His previous convictions were directly relevant. They were for assault with intent to do grievous bodily harm and theft, the very elements, taken together, of robbery. The magistrate stated that he did not attach much weight to them because of the light sentences that had been imposed but that they were relevant in showing the type of person that the appellant is. Once again, I cannot see how the fact that the sentences imposed on him previously were fairly light can be a weighty enough consideration to qualify as a substantial and compelling circumstance. In any event, the magistrate had taken this into account properly.  

[9] The fact that the complainant suffered no physical injuries is, no doubt, cold comfort to him: two adults accosted him, a mere boy, held a knife to his throat and threatened to slit his throat while taking everything they found in his pockets. This must have been a most terrifying and traumatic experience. That makes this a very serious case of robbery with aggravating circumstances particularly when the tender age and consequent vulnerability of the complainant is taken into account.  

[10] The fact that the stolen items were all recovered hardly redounds to the benefit of the appellant. He and his co-accused were apprehended as a result of the efficient and prompt response of the police. The version of the appellant and his co-accused is that the police trumped up the charges against them.  Finally, I cannot see why the fact that the appellant maintains his children with his disability grant – a fact that the magistrate assumed in the appellant’s favour -- constitutes a substantial and compelling circumstance.  

[11] In my view, the factors that I have listed do not, whether on their own or cumulatively, constitute substantial and compelling circumstance and, as a result, I can see no misdirection in this respect on the part of the magistrate.  In addition, given the seriousness of the offence, as spelt out by the magistrate, and the vulnerability of the appellant’s victim, I am of the view that it cannot be said that the magistrate overemphasised the interests of the community or that the sentence is disproportional and excessive.  

[12] That being so, the appeal is dismissed and the sentence is confirmed.  

______________ 
C. PLASKET
JUDGE OF THE HIGH COURT

I agree: 

_________________ 
C. FORTUIN
ACTING JUDGE OF THE HIGH COURT 

APPEARANCES 
For the appellant: Ms E. Theron, instructed by the Legal Aid Board, Port Elizabeth
For the respondent: Mr D. Els of the office of the Director of Public Prosecutions, Grahamstown