IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)

Date:  2008-11-14
UNREPORTABLE
Case Number:  A271/2007 

In the matter between:

CHABALIBUNGILE JOHN MKENTANI                                              Appellant

and

THE STATE                                                                                     Respondent

JUDGMENT

SOUTHWOOD J

[1]	On 5 May 2000 the appellant (the first accused) and Mpho Raymond 	Bonokwane (the second accused) were convicted in the Western 	Circuit Division (per Van Oosten J) of housebreaking with intent to rob 	and robbery with aggravating circumstances, murder, unlawful 	possession of a firearm and unlawful possession of ammunition. In 	addition the appellant was convicted of attempted rape. On the same 	day the Circuit Court sentenced the appellant and his co-accused as 	follows:

	The appellant:

Count 1 (housebreaking with intent to rob and robbery with aggravating circumstances) – 20 years imprisonment;

	Count 2 (attempted rape) – 7 years imprisonment;

	Count 3 (murder) - 25 years imprisonment;

	Counts 4 and 5 (unlawful possession of the firearm and ammunition) – 	3 years imprisonment. (The two counts were taken together for the 	purposes of sentence.)

	The court ordered that 5 years of each of the sentences imposed in 	respect of counts 1 (housebreaking) and 3 (murder) be served 	concurrently so that the appellant must serve an effective sentence of 	50 years imprisonment.

	Second Accused

Count 1 (housebreaking with intent to rob and robbery with aggravating circumstances) – 20 years imprisonment;

Count 2 (murder) - 25 years imprisonment;

Counts 4 and 5 (unlawful possession of the firearm and ammunition) – 3 years imprisonment. (The two counts were taken together for the purposes of sentence.)

	The court ordered that 5 years of each of the sentences imposed in respect of counts 1 (housebreaking) and 3 (murder) be served concurrently so that the second accused must serve an effective sentence of 43 years imprisonment.

[2]	With the leave of the Supreme Court of Appeal the appellant appeals 	against sentence only.  The second accused has not sought leave to 	appeal.

[3]	The appellant and his co-accused committed the crimes in the early 	evening of 16 December 1998 at the home of L L F (the 	deceased) and his wife E F in Klerksdorp.  At about 17h30 	on 16 December the two men gained access to the premises through 	an unlocked garden gate.  Once inside they encountered the Fs’ 	maidservant, A S, washing a bucket in the yard.  They 	pretended to be employment registration officers and told her that she 	must be registered as an employee.  They went to her room and she 	followed.  In the room they pulled silk stockings over their heads, 	grabbed S, held a knife to her throat and demanded money. 	They also demanded that she tell them where her employers’ money 	was. One of the two produced a firearm and they tied her up.  They 	stuffed her panties into her mouth and blindfolded her.  They then took 	the house key which they found in her room and, taking her with them, 	entered the Fs’ house.  There they demanded that she show them 	the safe and after she showed them where it was one of the men used 	an axe to break into the cabinet containing the safe.

[4]	In the meantime Mrs F had arrived home from work.  As she 	entered the kitchen one of the robbers overpowered her, tied her hands 	together and blindfolded her.  He also stuffed a rag into her mouth. 	They took her credit card and cell-phone and forced her to disclose the 	pin numbers.  They did this by throttling her and holding a knife to her 	throat.  During this assault the appellant started to undress her.  He 	told her he was going to rape her.  After taking off her panties he 	stopped when the second accused said he should not rape an old 	woman.  The appellant and the second accused also demanded 	money.

[5]	While this assault was in progress the deceased arrived.  When he 	entered the house he encountered the robbers who demanded the key 	for the safe.  He told them it was in the grandfather clock and they 	asked him again for the key.  A shot was fired which struck the 	deceased in the neck killing him.  The bullet severed the carotid artery 	and the deceased bled to death.  There was no reason for this shot to 	be fired.  The deceased was not resisting and did not attack them.  The 	robbers left the deceased and Mrs F and went in search of 	valuables.  Mrs F managed to make her way to the kitchen and 	was in the passage where she encountered the robbers again.  They 	dragged her back to the kitchen by the hair and left her there.  They 	took her Mazda motor vehicle and the stolen items and left.  After a 	while Mrs F managed to free herself and she found A 	S trussed up in the bedroom.  Some time later the vehicle was 	found, stripped, in the possession of a police captain in Vereniging.

[6]	This is a summary of the essential facts which supported the 	convictions.  The details simply emphasize the seriousness of the 	incident.  There is very little to mitigate the seriousness other than the 	relative youthfulness of the two perpetrators (the appellant was 20 	years old and the second accused was 19 years old and still at school) 	and the fact that the second accused managed to persuade the 	appellant not to rape Mrs F.  The robbery was carefully planned 	and the two men went to the house armed with a firearm and a 	knife which they did not hesitate to use.  They shot and killed the 	deceased and used the knife to overcome resistance by A 	S and Mrs F.

[7]	On 16 December 1998 the Criminal Law Amendment Act No 105 of 	1997 had already come into operation.  This meant that the court was 	obliged to impose the prescribed minimum sentences unless there 	were substantial and compelling circumstances which justified the 	imposition of lesser sentences.  The minimum sentence for murder 	committed in the course of a robbery was life imprisonment and the 	minimum sentence for robbery was 15 years imprisonment.  There is 	no indication that the court below applied the provisions of Act 105 of 	1997.  In the reasons for sentence there is no reference to the 	minimum sentences prescribed by the Act and the court did not 	consider whether substantial and compelling circumstances justified 	the imposition of a lesser sentence than the prescribed sentence.  The 	court and the state’s representative seem to have completely 	overlooked the provisions of the Act and the decided cases relevant 	thereto.  Appellant’s counsel is therefore correct in submitting that to 	sentence without taking account of the important sentencing provisions 	contained in the Act was a misdirection.

[8]	The learned judge obviously considered that the murder on its own did 	not justify the imposition of a life sentence, a competent but not 	obligatory sentence in terms of section 276(1)(b) of the Criminal 	Procedure Act No 51 of 1977, and that the housebreaking and robbery 	warranted a very heavy sentence.  In my view he cannot be faulted in 	this approach.  However the learned judge did not take into account 	that Act 105 of 1997 prescribes life imprisonment for murder committed 	while the accused is committing robbery with aggravating 	circumstances as defined in section 1 of the Criminal Procedure Act, 	51 of 1977.  In the absence of substantial and compelling 	circumstances the court below was obliged to impose life 	imprisonment for the murder.  The court below obviously intended to 	remove the appellant permanently from society.

[9]	The parties agree that the provisions of section 51 of Act 105 of 1997 	were applicable and that the murder committed while the appellant was 	committing the robbery with aggravating circumstanced required that a 	life sentence be imposed.  In their heads of argument they disagreed 	about what this court should do.  

[10]	Without dealing with the question of substantial and compelling 	circumstances the appellant’s counsel contended that the effective 	sentence of 50 years imprisonment was excessive – see S v 	Hlapezula 1965 (4) SA 439 (A);  S v Ivanisevic 1967 (4) SA 572 (A) 	at 575;  S v Whitehead 1970 (4) SA 424 (A) at 436;  S v Salzwedel 	1999 (2) SACR 586 (SCA) paras 10 and 11.  The state’s 	representative contended that the court below was obliged to impose a 	sentence of life imprisonment on count 3 (murder) and that this court 	should now impose the correct sentence.  He pointed out that the court 	below obviously wished to remove the appellant from society 	permanently and submitted that it cannot be contended that there were 	substantial and compelling circumstances present.

[11]	At the hearing the appellant’s counsel agreed that the court below was 	obliged to impose a sentence of life imprisonment for the murder and 	that such a sentence should now be imposed.  The appellant’s counsel 	said that the only factor which could possibly justify a finding that 	there were substantial and compelling circumstances present was the 	appellant’s age at the time (he was 20) but he did not submit that this 	court should find such circumstances.  In my view the relative 	youthfulness of the appellant does not constitute substantial and 	compelling circumstances for the purposes of Act 105 of 1997.

[12]	The approach of the parties is supported by authority.  In S v Siluale 	en ‘n Ander 1999 (2) SACR 102 (SCA) at 106i-j the court said that life 	imprisonment is and was intended to be the heaviest sentence which 	could be imposed and that if the circumstances of the case required 	that the accused be removed permanently from society, life 	imprisonment is the only appropriate sentence.  There are procedures 	which make parole possible in appropriate circumstances; for example 	where, contrary to all expectations, the accused reforms.  A sentence 	of 50 years imprisonment is therefore not an appropriate sentence if 	the court considers that the circumstances of the crime warrant the 	ultimate penalty.  The court also found (at 107h-j) that the provisions of 	section 322(2) and (6) of Act 51 of 1977 can be utilized by an appeal 	court to interfere with the sentence imposed and impose the sentence 	which the trial court 	should have imposed and that the appeal court 	can take counts together for the purpose of sentence.  That approach 	is appropriate in the present case.  All the counts will be taken together 	for the purposes of sentence and one sentence of life imprisonment will 	be imposed.

[13]	The same reasoning seems to apply to the sentences imposed on the 	second accused who has not sought to appeal.  The court below 	imposed the wrong sentence on the second accused for the murder 	and this should be rectified.  This 	can be done only by means of an 	appeal.  The registrar of this court, the Legal Aid Board and the 	Director of Public Prosecutions will be requested and directed to 	furnish the second accused with a copy of this judgment and to advise 	him as to how he can appeal if he is so advised.
	
	ORDER

[13]	1.	The appeal is upheld to the extent that all the sentences 			imposed on the appellant are set aside and substituted with the 		following sentence:

	Life imprisonment (All the counts have been taken together for 	the purpose of sentence.)

	2.	The registrar of this court, the Legal Aid Board, Pretoria, and the 		Director of Public Prosecutions are requested and directed to 		furnish the second accused, Mpho Raymond Barokwane, with a 		copy of this judgment and to advise him how he can appeal 			against the sentences imposed on him, if he is so advised.

_______________________
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT

I agree

         _______________________
F.G. PRELLER
					JUDGE OF THE HIGH COURT

I agree

         _______________________
S.W. SAPIRE
					ACTING JUDGE OF THE HIGH COURT

CASE NO:  A271/2007 

HEARD ON:  12 November 2008  

FOR THE APPELLANT:  ADV. J. HOLLAND-MϋTER  

INSTRUCTED BY:  Legal Aid Board

FOR THE RESPONDENT:  ADV. J.J. KOTZÉ 

INSTRUCTED BY:  Director of Public Prosecutions

DATE OF JUDGMENT:  14 November 2008