IN   THE HIGH COURT OF SOUTH   AFRICA
(Northern   Cape Division, Kimberley)
Saakno /   Case number:CA&R 101/2016
Datum aangehoor / Date Heard:  27/03/2017
Datum   gelewer/Date delivered: 31/03/2017
In the appeal of:
BRIAN JULIES                                                                                                                                                                                                   1st   Appellant
SHAYEZAKHE MNGUNI                                                                                                                                                                  2nd  Appellant 
FIKILE MBULAWA                                                                                                                                                                                         3rd Appellant
ANDREWS JOHN                                                                                                                                                                                            4th Appellant
and
THE STATE                                                                                                                                                                                                                  Respondent

Coram: Williams, J et   Erasmus,   AJ

JUDGMENT ON APPEAL
Erasmus, Al
[1] The appellants   (accused   no   2,   3,   4 and   5   in   the   court a quo), were convicted in the Kimberley Regional Court   on 14 January 2016 on the following charges       and subsequently sentenced as follows:
1.1                 The first appellant was convicted on   counts   1,   2 and 3, to wit housebreaking with the intent to steal and theft, unlawful possession of 10 rounds of ammunition and   unlawful     possession     of   both     a 9 mm semi-automatic pistol and .38 revolver. He was sentenced to 5, 3 and 8 years imprisonment respectively and it was ordered that the sentences be served concurrently.
1.2                 The second appellant was convicted on counts 2   and 3, to wit unlawful possession of 2 rounds of ammunition and unlawful possession of a .22 revolver and sentenced to 6 months and 4 years imprisonment respectively and it was ordered that the sentences be served concurrently.
1.3                 The third appellant   was convicted   on counts 1   and
3 of housebreaking with the intent to   steal   and   theft and unlawful possession of a .30-06 hunting rifle and a shotgun and sentenced to 5 and 8 years imprisonment respectively and it was ordered that the sentences were to be served concurrently.
1.4                 The fourth appellant was convicted on count 1,   to   wit housebreaking with the intent to steal and theft and sentenced to 5 years imprisonment.
[2] The appellants now appeal against their sentences, with leave of the court a   quo.
[3] The factual basis for the conviction was that the fourth appellant, who had been employed by the complainant, had facilitated a housebreaking and subsequent   theft   at the residence of the   complainant   during   the   period 14 - 16 of June 2011. The fourth appellant had knowledge   of the complainant's safe, as he had assisted   with   its installat ion. He, together with the first and third appellants, forcefully removed the safe from the wall to which it had been bolted. The items in the safe included five firearms, jewellery to the estimated value of R150,000.00 and World War II medals, which the complainant had inherited   from   his   father. Apart   from the firearms, none of the other items had been recovered. During a search of the third appe llant's residence, the police discovered the .30-06 rifle and shotgun of the complainant. During another search the complainant's .22 revolver and 2 rounds of   ammunition were discovered in the residence of the second appellant. During a search of the residence of accused no 1 in the court a quo, where   the   first appellant   had been   residing, a medal belonging to the complainant and two handgun holsters of the stolen . 38 revolver and 9mm pistol were found in a   bag belonging   to   the first appellant. During   a further search the .38 revolver and 9mm pistol and 10 rounds ammunition were also discovered where it had   been hidden.
[4] From the sentence   proceedings   it   appears that the court a quo had duly considered the triad of the personal circumstances of the appellants, the seriousness of the offence and the interests of society. The court a quo had also individualized the sentences, by determining each   appellant's individual moral blameworthiness and, after doing so, had imposed different sentences in accordance therewith. The court a quo had also considered previous sentencing trends in determining the appropriate severity of the sentences imposed and had tempered a disproportional cumulative sentence by ordering that the sentences be served concurrently.
[5] In his heads of argument, with reference to comparative case law, Adv Van Zyl Nel correctly pointed out that substantial terms of imprisonment had been imposed for offences of unlawful possession     of     firearms     and ammunition.[1]       In   respect of the offence of housebreaking with the intent to steal and theft, several cases which are comparable to the offences in casu,   were   referred   to.[2] He, on behalf of the appellants,   correctly   conceded   that no convincing arguments could be advanced which would render the sentences imposed startlingly   disproportionate or     that     the     sentences     could     be     vitiated     by material misdirection. Mr Van Tonder, who appeared for the appellants at the hearing of the appeal, was in agreement   with the submissions of Mr Nel.
[6] Adv Kgatwe, on behalf of the respondent, also submitted that the court a quo had exercised its discretion properly and that the sentences imposed were appropriate   and that the appeal should be   dismissed.
[7] It is trite that the powers of a court of appeal to interfere with the sentence imposed by the trial court are limited. In S v Obisi[3] it was stated:
"... a Court of appeal is reminded in this passage that it should not replace the sentence imposed by   the   trial court   with its own, for   the test is not whether the appellate tribunal would have imposed another form of punishment or not, but whether the trial court exercised its discretion properly and reasonably in imposing the sentence it imposed.   The trial court   is deemed to   have exercised   its discretion properly when the discretion is not based on a substantial   misdirection   whether   as   to   law   or   fact   or   where   the sentence imposed is not manifestly inappropriate and induces a sense of shock or not substantially different from that which the appeal Court would itself have   imposed."
[8] We fully agree with the submissions of the counsel representing the appellants and respondent. Accordingly the appeal against the sentences stand to be   dismissed.
We make the following   order:
THE APPEAL OF THE FIRST, SECOND, THIRD AND FOURTH APPELLANTS IS DISMISSED.

_____________________
ERASMUS SL
ACTING JUDGE
  
I agree.
  
____________________
WILLIAMS CC 
JUDGE
  
On   behalf   of the   Appellants:             Adv. Van   Zyl Nel (Adv. Van Tonder representing)   oio Legal Aid   SA
On behalf of Respondent:                           Adv . K.M. Kgatwe (oio the NDPP)

[1] 5 v NDINISA 2015 JDR 1943 (GP); 5 v MADIKANE 2011 (2) SACR 11 (ECG); 5 v SWARTZ 2016 (2) SACR 268 ( WCC);   5 v DELPORT 2016 (2) SACR 281 (WCC)

[2] S v NOMBEMBU 2015 JDR 2228 (GJ); S v MKHATSHWA 2014 JDR 0783 (GP); S v OLIVIER EN ANDERE 1996 (2) SACR 387 (NC)

[3] 2005(2) SACR 350 (W) at 353 par (7)