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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, MTHATHA)

                                                                                                 CASE NO: CA&R93/2019

                                                                                                  Date heard: 20 May 2020

                                                                            Date delivered: 17 June 2020

In the matter between

SIYABONGA GWANGQA                                                                                      Appellant

vs

THE STATE                                                                                                       Respondent

JUDGMENT

DUNYWA AJ:

1.    The appellant, a 31-year-old man appeared before the Eastern Cape Regional Court held at Engcobo on 16 November 2016.  He was charged with four (4) counts, such as robbery with aggravating circumstances, kidnapping, possession of unlicensed firearm where the serial number was tempered with or altered, and possession of four rounds of live ammunition.  The provisions of section 51(2) of the Criminal Law Amendment Act 105 of 1977 (the CLA) were invoked in respect of count 1 where the prescribed minimum sentence is (15) fifteen years’ imprisonment unless substantial and compelling circumstances have been established to justify a lesser sentence.

2.    The appellant was legally represented throughout the proceedings.  He pleaded not guilty to the charges preferred against him and tendered no plea explanation in terms section 115 of the Criminal Procedure Act 51 of 1977 (the CPA).  On 28 July 2017 the trial Court convicted the appellant of the four (4) counts.  He was sentenced to undergo (15) fifteen years’ imprisonment in Count 1, (3) three years’ imprisonment on count 2, (10) ten years’ imprisonment in count 3 and (5) five years’ imprisonment in count 4, on the same date.  Sentences in count 2, 3 and 4 were ordered to run concurrently with the sentence in count 1

3.    The appellant applied for leave to appeal against both conviction and sentences on 23 August 2019 and the trial Court refused both such applications.  This Court granted him leave to appeal against sentence only.

4.    It is not important to provide the detailed facts leading to the appellant’s conviction.  It suffices to mention that the appellant was convicted for robbing the employees of a bakery.  The complainants were delivering bread to a certain shop.  The appellant confronted them soon after they had offloaded the bread.  He then produced a firearm and robbed them off their personal belongings such as cellphones, wallets and their employer’s money.  He left the victims locked and detained at the back of the bakery van.

5.    The appellant argues that the sentence is severe considering that he was detained from 21 May 2015, which is the date of his arrest and his bail was refused until the case was finalized.

6.    On behalf of the State it was argued that the sentences were proportionate to the offences committed by the appellant.

7.    It is trite that sentencing is within the trial Court’s discretion but that discretion must be applied judiciously.  In S v Rabie[1] it was stated that a court of appeal may interfere with the trial Court’s sentencing discretion if it believes that the trial Court failed to exercise its discretion correctly and it would be appropriate to interfere.

8.    In S v Romer[2] it was further emphasized that the court of appeal can interfere with the sentence of a trial Court, if the sentence is disturbingly inappropriate or is vitiated by misdirections and indiscretion.  In that regard the sentencing discretion of the trial Court would not have been properly applied.

9.    This approach was also confirmed by the Supreme Court of Appeal in S v Malgas[3] at paragraph 12 where Marais JA held:

“12.      . . . A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it.  To do so would be to usurp the sentencing discretion of the trial court.  Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate court is of course entitled to consider the question of sentence afresh.  In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance.  As it is said, an appellate court is at large.  However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court.  It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”.  It must be emphasised that in the latter situation the appellate court is not at large in the sense in which it is at large in the former.  In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence.  It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned.  No such limitations exist in the former situation.”

10. In this matter the Court must decide whether or not the imprisonment sentences imposed by the trial Court provoke a sense of shock or are blemished by misdirection and irregularities.  If that is apparent, this court will have the right to interfere by setting the sentences aside and impose what it considers appropriate in the circumstances.

11. In determining an appropriate sentence this court must scrutinize whether the trial Court maintained the delicate balance of the triad which includes the crime, the offender and interests of society.

12. The appellant’s personal circumstances are the following:

12.1          The appellant has two minor children

12.2          He was detained for a period of two years and 2 months whilst awaiting the finalization of his case.

12.3          He is the first offender with a pending case of theft.

12.4          The stolen goods were recovered and the victims were not physically injured.

12.5          He is 31 years of age.

12.6          He was working for Concort Construction as a labourer earning R500,00 per week.

13.  Section 51(2) of the Criminal Law Amendment Act 105 of 1997 prescribes a period of (15) fifteen years as the minimum sentence for robbery with aggravating circumstances which appears in count 1.  Those provisions were not invoked in count 3 by the Prosecuting Authority.

14. In Count 3 the appellant was charged and convicted for contravening section 4(1)(f)(iv) of the Fire Arms Control Act No.60 of 2000 (Fire Arms Control Act) in that the serial number or any other identifying mark of which has been damaged or removed without the written permission of the Registrar of fire arms.  This offence has a maximum period of twenty-five years’ imprisonment in terms of Schedule 4 of the Fire Arms Control Act.  The firearm was a 9mm caliber Taurus model PT semi-automatic pistol.  The provisions of section 51(2) of the Criminal Law Amendment Act 105 of 1997 (CLA) were not invoked by the State for this count.

15. The trial Court does not appear to have been satisfied that substantial and compelling circumstances existed to justify the imposition of a lesser sentence than the minimum sentence prescribed.

16. The appellant has argued that the prescribed minimum sentence is disproportionate to the offence committed.  He argues further that courts should avoid being the rubber stamps for the Legislature and referred this Court to the following cases: S v Blauw[4], S v Dithotze[5], and S v Jansen[6].

17. The appellant contends further that the trial Court gave him a severe sentence.  In my view the trial Court reduced the effect of the sentences by ordering in terms of section 180 of the Criminal Procedure Act that sentences on counts 2,3 and 4 must run concurrently with the sentence imposed on count 1.  The effective number of 33 years was reduced to 15 years' imprisonment.

18. It appears that the appellant has directed his focus mainly on the prescribed minimum sentence of (15) fifteen years' imprisonment and shares the view that the trial Court should have deviated from the prescribed minimum sentence.  The principal argument against the effective sentence on the charge of robbery is that the accused has been in custody awaiting the trial for a period of two years and two months before he was sentenced.[7]

19. This Court shall now deal with the existence or otherwise of the substantial and compelling circumstances to justify imposition of a lesser sentence.  The Court shall examine whether the accused’s detention for a period of two years and two months is not enough to be regarded as substantial and compelling for the Court to deviate from the sentence of (15) fifteen years’ imprisonment.  In S v Radebe[8] at 169 paragraph 13 and 14 it was held:

“[13]     In my view there should be no rule of thumb in respect of the calculation of the weight to be given to the period spent by an accused awaiting trial.  (See also S v Seboko  2009 (2) SACR 573 (NCK) para 22).  A mechanical formula to determine the extent to which the proposed sentence should be reduced, by reason of the period of detention prior to conviction, is unhelpful.  The circumstances of an individual accused must be assessed in each case in determining the extent to which the sentence proposed should be reduced.  (It should be noted that this court left open the question of how to approach the matter in S v Dlamini  2012 (2) SACR 1 (SCA) para 41.)[9]

[14]      A better approach, in my view, is that the period in detention pre-sentencing is but one of the factors that should be taken into account in determining whether the effective period of imprisonment to be imposed is justified: whether it is proportionate to the crime committed.  Such an approach would take into account the conditions affecting the accused in detention and the reason for a prolonged period of detention.  And accordingly, in determining, in respect of the charge of robbery with aggravating circumstances, whether substantial and compelling circumstances warrant a lesser sentence than that prescribed by the Criminal Law Amendment Act 105 of 1997 (15 years’ imprisonment for robbery), the test is not whether on its own that period of detention constitutes a substantial or compelling circumstance, but whether the effective sentence proposed is proportionate to the crime or crimes committed: whether the sentence in all the circumstances, including the period spent in detention prior to conviction and sentencing, is a just one”.

20. I am satisfied that the appellant’s prior detention cannot be the only factor to be regarded as substantial and compelling for the Court to deviate from the prescribed minimum sentence.  In my view that approach can render the sentence given to be unjust and disproportionate to the crime, the criminal and the needs of society.

21. In S v Vilakazi[10] at paragraph 15 it was stated:

“[15] It is clear from the terms in which the test was framed in Malgas and endorsed in Dodo that it is incumbent upon a court in every case, before it imposes a prescribed sentence, to assess, upon a consideration of all the circumstances of the particular case, whether the prescribed sentence is indeed proportionate to the particular offence.  The Constitutional Court made it clear that what is meant by the ‘offence’ in that context (and that is the sense in which I will use the term throughout this judgment unless the context indicates otherwise) consists of all factors relevant to the nature and seriousness of the criminal act itself, as well as all relevant personal and other circumstances relating to the offender which could have a bearing on the seriousness of the offence and the culpability of the offender.’

If a court is indeed satisfied that a lesser sentence is called for in a particular case, thus justifying a departure from the prescribed sentence, then it hardly needs saying that the court is bound to impose that lesser sentence.  That was also made clear in Malgas, which said that the relevant provision in the Act vests the sentencing court with the power, indeed the obligation, to consider whether the particular circumstances of the case require a different sentence to be imposed.  And a different sentence must be imposed if the court is satisfied that substantial and compelling circumstances exist which ‘justify’…it”’[11].

22. In S v Radebe supra the complainants were robbed of 9mm pistol, cellphones and jewelry.  The sentence of 15 years' imprisonment was confirmed in respect of robbery with aggravating circumstances.  Unlike in this case they further served imprisonment sentence for a period of 5 and 7 years respectively for the other counts of possessing unlicensed firearm and ammunition because of their previous convictions.

23. The appellant has argued that goods stolen were not of high value since the appellant robbed the complainants of their cell phones, wallets, car keys and their employer’s money which was + R2000. The goods were recovered through the efficiency of the members of South African Police Service.  The amount stolen is not a decisive factor, albeit, relevant considering that the appellant would have taken any amount he could find from the complainants. The value of these items is not much different to those of the case of S v Radebe above.

24. In S v Mabunda[12]at a sentence of 15 years was confirmed by the Supreme Court of Appeal where the perpetrators of robbery with aggravating circumstances, stole R1500 cash, cell phone and its charger, necklace, a pair of earrings, a mini hi-fi and TV aerial.

25. In my view this case is not much different to the cases alluded to above.  The robbery where a fire was wielded is by all means very traumatic.  In this case the complainants were pointed with a firearm and worst locked behind the bakery truck for a period of time.  They stayed in that detention until they were released by the police.  Both the complainants were terrified and scared.  The majority of robberies with aggravating circumstances are premeditated.

26. It is accepted that Courts are not the rubber stamps of the Legislature.  The Legislature by enacting the Criminal Law Amendment Act it intended that there must be uniformity of sentences where circumstances permit without taking away the courts discretion.  As Malgas[13] emphasized:

“In short, the Legislature aimed at ensuring a severe, standardized, and consistent response from the courts to the commission of such crimes unless there were, and could be seen to be, truly convincing reasons for a different response.  When considering sentence, the emphasis was to be shifted to the objective gravity of the type of crime and the public’s need for effective sanctions against it.”

27. In S v Matyityi[14]  the appeal Court held:

“. . . As Malgas makes plain courts have a duty, despite any personal doubts about the efficacy of the policy or personal aversion to it, to implement those sentences.  Our courts derive their power from the Constitution and like other arms of state owe their fealty to it.  Our constitutional order can hardly survive if courts fail to properly patrol the boundaries of their own power by showing due deference to the legitimate domains of power of the other arms of state.  Here parliament has spoken.  It has ordained minimum sentences for certain specified offences.  Courts are obliged to impose those sentences unless there are truly convincing reasons for departing from them.  Courts are not free to subvert the will of the legislature by resort to vague, ill-defined concepts such as ‘relative youthfulness’ or other equally vague and ill-founded hypotheses that appear to fit the particular sentencing officer’s personal notion of fairness.  Predictable outcomes, not outcomes based on the whim of an individual judicial officer, is foundational to the rule of law which lies at the heart of our constitutional order”.

28. The Supreme Court of Appeal reiterated the same view in S v Kwanape[15]:

“Courts are duty-bound to implement the sentences prescribed in terms of the Act and that ‘ill-defined concepts such as relative youthfulness or other equally vague and ill-founded hypotheses that appear to fit the particular sentencing officer’s personal notion of fairness’ ought to be eschewed”.

29. Robberies committed on businesses and their employees has an adverse effect in the economy of the country.  Businesses employ people in order to reduce the high rate of unemployment thereby reducing hunger and poverty.  Robbery with aggravating circumstances is another cause for businesses to shut down because of the loss suffered and the risk undertaken during the business operation.  Crime is one of the contributing factors to the lowering of any country’s economy.

30. In my view the effective sentence of (15) fifteen years’ imprisonment is justified in respect of robbery.  I can find no misdirection on the part of the Regional Magistrate.

31. The following order will issue.

The appeal is dismissed.

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M.S. DUNYWA

ACTING JUDGE OF THE HIGH COURT

I agree, and it is so ordered,

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TOKOTA

JUDGE OF THE HIGH COURT

Appearing on behalf of the Appellant:

Instructed by:

Appearing on behalf of the Respondent:

Instructed by:

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