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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – GRAHAMSTOWN

                                                                                         Case No:  CA & R 66/2014

                                                                                         Date Heard: 30 July 2014

                                                                                         Date Delivered: 10 September 2014

In the matter between:

SONWABILE MENZE                                                                                            APPELLANT

And

THE STATE                                                                                                        RESPONDENT

JUDGMENT

JACOBS AJ

[1] The application for leave to appeal granted on petition by the Judge President is directed at sentence of fifteen (15) years imprisonment imposed upon the appellant following his conviction on a charge of Robbery with Aggravating Circumstances. The Judge President ordered that at the hearing of the Appeal submissions be requested from counsel concerning the age of the Appellant at the time of commission of the offence and the applicability of Section 51 (2) of the Criminal Law Amendment Act 105 of 1997, in the light of the judgment in the Centre for Child Law v Minister of Justice and Constitutional Development and Others 2009 (2) SACR 477 (CC).

[2] This court’s power to interfere with a sentence on appeal is circumscribed. In Bogaards v  S 2013 (1) SACR (CC) at par 41 the Constitutional Court summarised an appellate court’s power to interfere with sentences imposed by lower courts as follows:

“It can only do so where there has been an irregularity that results in a failure of justice; the court below misdirected itself to such an extent that its decision on sentence is vitiated; or the sentence is so disproportionate or shocking that no reasonable court could have imposed it.” 

[3] The date of birth of the appellant, which appears on the criminal record system, was handed in by the state, as an exhibit, and is also confirmed by the appellants’ submission, indicates that the appellant was 16 years old at the time of the commission of the offence. In Centre for Child Law (supra) par 77, the majority per Cameron J declared that section 51 (1) and (2) of the Criminal Law Amendment Act 105 of 1997 are inconsistent with the Constitution and invalid, to the extent that they apply to persons who were under 18 years at the time of the commission of the offence. The relevant age to be considered of the accused is the age at the commission of the offence, and not the age of the accused at the time of the hearing. Minimum sentence legislation is therefore not applicable in this case.

[4] In S v Fazzie and Others 1964 (4) SALR  673 at 684 A – C the following was held: “This court will not readily differ from the Court a quo in its assessment either of the factors to be had regard to or as to the value to be attached to them. Where, however, the dictates of justice (my emphasis) are such as clearly to make it appear to this court that the trial Court ought to have had regard to certain factors and that it failed to do so, or that it ought to have assessed the value of these factors differently from what it did, then such action by the trial Court will be regarded as a misdirection on its part entitling this Court to consider the sentence afresh.”

[5] The trial court, in applying minimum sentence legislation, therefore misdirected itself. The proper approach on sentencing a child offender was set out as follows by Cameron J in the Centre for Child Law case supra (at paragraph 31):

“But while the Bill of Rights envisages that detention of child offenders may be appropriate, it mitigates the circumstances. Detention must be a last, not a first, or even intermediate, resort; and when the child is detained, detention must be only for the shortest appropriate period of time. The principles of ‘last resort’ and ‘shortest appropriate period’ bear not only on whether prison is a proper sentencing option, but also on the nature of the incarceration imposed. If there is an appropriate option other than imprisonment, the Bill of Rights requires that it be chosen. In this sense, incarceration must be the sole appropriate option. But if incarceration is unavoidable, its form and duration must also be tempered, so as to ensure detention for the shortest possible period of time.”

[6] In S v Z en vier ander sake 1999 (1) SACR 427 guidelines for sentencing juvenile offenders were laid down. For present purposes one of the guidelines is of application. It reads as follows:  “The court must act dynamically to obtain full particulars about the accused’s personality and personal circumstances. Where necessary the court must obtain a pre-sentence report from a probation officer and/or a correctional officer. Such a report is necessary where the accused has committed a serious offence, or where he has previous convictions. It is inappropriate to impose a sentence of imprisonment, including suspended imprisonment, unless such a pre-sentence report has been obtained”.

[7] The above cited guidelines is now generally applied in respect of youthful offenders and it has been approved by the Supreme Court of Appeal in S v Peterson en `n ander [2000] ZACC 24; 2001 (1) SACR 16. The failure on the part of the Regional Magistrate to sentence the appellant without having regard to a pre- sentence report is an irregularity that requires the sentence imposed on the appellant to be set aside.

I make the following order:

1.      The appeal against sentence is upheld.

2.      The order of the court a quo is set aside.

3.      The matter is remitted to the trial court for it to reconsider the sentence of the appellant and to-

(i)                  Direct that a pre-sentencing report be obtained in respect of the Appellant and to consider such report;

(ii)                Take into consideration that the Appellant is incarcerated since 28 October 2011.

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S. JACOBS

ACTING JUDGE OF THE HIGH COURT

 

C. Mey AJ

 

I agree.

 

 

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C. MEY

ACTING JUDGE OF THE HIGH COURT

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