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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

Case number: A205/2017

Not reportable

Not of interest to other judges

Revised.

In the matter between:-

CHIRWA: MUSA MOSES                                                                                       Appellant

and

THE STATE                                                                                                         Respondent

 

JUDGMENT

 

OPPERMAN J

introduction

[1] On 1 October 2014, the appellant was convicted in the Regional Court, sitting at Randburg, on one count of housebreaking with the intent to rob and robbery with aggravating circumstances. The appellant was legally represented and pleaded guilty to the charge.

[2] On 24 October 2014, he was sentenced to 20 years imprisonment and was declared unfit to possess a firearm in terms of the provisions of section 103 of the Firearms Control Act 60 of 2000.

[3] The appellant’s convictions arose from the following events: On 1 August 2014 and at about 9h00, the appellant broke into the house of the complainant, Ms Michelle Chalmers for whom he had previously done odd jobs, accosted her in her kitchen and demanded money. She resisted. He hit her with a golf stick on the side of her head and tied her up. He departed with R 461 000 worth of goods including her car. Shortly thereafter he was involved in a collision and arrested.

[4] The appellant applied for leave to appeal, which was granted. It is of considerable significance that the learned magistrate, in his judgment granting leave to appeal, recorded the following: ‘….it is further the view of this court that the sentence was disproportionately harsh’.

TEST ON APPEAL

[5] The principles underpinning the power of a court on appeal to interfere with the sentence imposed by the trial court are well established in our law.  In S v Romer 2011 (2) SACR 153 (SCA), at paras [22] and [23] they were discussed as follows:

‘[22]  It has been held in a long line of cases that the imposition of sentence is pre-eminently within the discretion of the trial court. The appellate court will be entitled to interfere with the sentence imposed by the trial court only if one or more of the recognised grounds justifying interference on appeal has been shown to exist. Only then will the appellate court be justified in interfering. These grounds are that the sentence is ‘(a) disturbingly inappropriate; (b) so totally out of proportion to the magnitude of the offence; (c) sufficiently disparate; (d) vitiated by misdirections showing that the trial court exercised its discretion unreasonably; and (e) is otherwise such that no reasonable court would have imposed it.’ See S v Giannoulis; S v Kibido; S v Salzwedel & others.

 [23] In S v Matlala  it was held that in an appeal against sentence the fact that the sentence imposed by the trial court is wrong is not the test. The test is whether the trial court in imposing it exercised its discretion properly or not. Consequently, the circumstances in which an appellate court will interfere with the exercise of such discretion are circumscribed. In S v Sadler Marais JA, writing for a unanimous court, had occasion to re-state them when he said the following:

‘The approach to be adopted in an appeal such as this is reflected in the following passage in the judgment of Nicholas AJA in S v Shapiro 1994 (1) SACR 112 (A) at 119j-120c:

“It may well be that this Court would have imposed on the accused a heavier sentence than that imposed by the trial Judge. But even if that be assumed to be the fact, that would not in itself justify interference with the sentence. The principle is clear: it is encapsulated in the statement by Holmes JA in S v Rabie 1975 (4) SA 855 (A) at 857D-F:

“1. In every appeal against sentence, whether imposed by a magistrate or a Judge, the Court hearing the appeal ─

(a) should be guided by the principle that punishment is ‘pre-eminently a matter for the discretion of the trial Court’, and

(b) should be careful not to erode such discretion: hence the further principle that the sentence should only be altered if the discretion has not been ‘judicially and properly exercised’.

2 . The test under (b) is whether the sentence is vitiated by irregularity or misdirection or is disturbingly inappropriate”.’ (footnotes omitted)

[6] The circumstances the court a quo had regard to include the following:

6.1. The appellant was a first offender.

6.2. At the time of sentencing he was 28 years old, the father of a two year old and engaged to be married.

6.3. The appellant had passed grade 11 but was not formally employed at the time of the offence.

6.4. The offence was premeditated in that he had waited for an opportunity to slip into the complex where the complainant stayed and then jumped a wall to gain access to her home.

6.5. The offence was directed at his former employer and the appellant accordingly bit the hand that fed him.

6.6. The complainant was attacked in the sanctity of her home.

6.7. She had sustained a serious injury to her head – her left ear had been lacerated.

6.8. The appellant left with property to the value of R461 000.

6.9. The appellant had damaged the complainant’s vehicle.

6.10. The appellant is a Zimbabwean national who is in the country illegally.

6.11. He has been in custody since his arrest being the day of the commission of the offence, 1 August 2014.

MISDIRECTIONS

[7] The appellant raised the following alleged misdirections:

7.1.  that the sentence imposed induces a sense of shock and is startlingly inappropriate;

7.2. that insufficient reasons had been provided to exceed the prescribed minimum sentence of 15 years imprisonment.

[8] In S v Mathebula, 2012 (1) SACR 374 (SCA), Bosielo JA observed, in respect of the proviso to section 51 (2) of the Act as follows:

“[10] A regional magistrate has the discretion to impose a sentence exceeding the minimum sentence prescribed by the Act with an additional 5 years as provided for in the proviso to s 51(2). Such a discretion must however be exercised judicially and on reasonable grounds. Where a regional magistrate intends to depart from the prescribed minimum sentence, it is proper and fair that the regional magistrate gives reasons for such a departure. Absent any such reasons, the conclusion becomes inescapable that such a decision is arbitrary or that the sentencing discretion was not exercised judicially. It is not proper for an appeal court to have to speculate about the reasons which motivated the regional magistrate to impose a sentence higher than the minimum sentence prescribed. Such an approach cannot be countenanced as it is subversive to the principles of openness, transparency, accountability and fairness. It is trite that judicial officers can only account for their decisions in court through their judgments. It is through judgments which contain reasons that judicial officers speak to the public. Their reasons are therefore the substance of their judicial actions. Dealing with a similar matter this court enunciated the principle as follows in S v Maake 2011 (1) SACR 263 (SCA) para 19:

‘It is not only a salutary practice, but obligatory for judicial officers to provide reasons to substantiate conclusions.’

The court went to state the following at para 20:

‘When a matter is taken on appeal, a court of appeal has a similar interest in knowing why a judicial officer who heard the matter made the order which he did. Broader considerations come into play. It is in the interest of the open and proper administration of justice that courts state publicly the reasons for their decisions. A statement of reasons gives some assurance that the court gave consideration to the matter and did not act arbitrarily. This is important in the maintenance of public confidence in the administration of justice.’

See Strategic Liquor Services v Mvumbi NO & others 2010 (2) SA 92 (CC) para 15.”

[9] In my view, the learned magistrate did not give adequate reasons for a departure from the prescribed minimum sentence. Upon reflection he too, considered the sentence imposed harsh. He, very judicially, reflected this insight in his judgment granting leave to appeal.

[10] It is patent that the magistrate took pains to consider all of the principles relevant to sentencing the appellant and to apply these to the facts of the case before him.  He did not overlook the appellant’s personal circumstances.  He weighed these against the list of aggravating factors that he found to be relevant.  It cannot be said that he misdirected himself in identifying these as aggravating factors, or in the manner in which he sought to balance these against factors favourable to the appellant.

[11] In my view, his finding that no substantial and compelling circumstances are present cannot be faulted.

[12] I agree though with his insight, reflected in his judgment granting leave to appeal, that the facts of this case do not warrant the imposition of an extra five years beyond the prescribed minimum period of 15 years.

CONCLUSION

[13] I accordingly intend setting the sentence aside and replacing it with one of 15 years. I endorse the recommendation of the learned magistrate that the prison authorities deport the appellant to Zimbabwe once he has served his sentence and the illegality of his tenure is explored and confirmed.

ORDER

[14] In the circumstances the appeal on sentence is upheld, the sentence is set aside and the following order is granted:

14.1. The sentence imposed on 24 October 2014 is set aside.

14.2. The appellant is sentenced to 15 years imprisonment to be effective (antedated) from 24 October 2014.

14.3. The appellant remains unfit to possess a firearm in terms of section 103 (1a) of the Firearms Control Act 60 of 2000.

 

___________________________

I OPPERMAN

Judge of the High Court

Gauteng Division, Johannesburg

 

I agree

 

___________________________

D NAIR

Acting Judge of the High Court

Gauteng Division, Johannesburg

Heard: 6 November 2017

Judgment delivered: 6 November 2017   

Appearances:

For Appellant: Ms M Leoto   

Instructed by: Johannesburg Justice Centre

For Respondent: Adv KT Ngubane  

Instructed by: Office of the DPP

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