SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

IN THE HIGH COURT HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG

CASE NO: CA 38/2021
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates: NO

In the matter between:
ARMAND NELL							APPELLANT
and
THE STATE								RESPONDENT

Coram:		Petersen J, Gura J
Heard:		10 June 2022
Handed down:	21 July 2022

ORDER
(i)	Condonation for the late noting and prosecution of the appeal is granted.
(ii)	The appeal against sentence is dismissed.
(iii)		The order declaring the appellant unfit to possess a firearm in terms of section 103 (1) of the Firearms Control Act 60 of 2000, is confirmed.

JUDGMENT

PETERSEN J
Introduction
[1]	The appellant was tried and pleaded guilty in the Regional Court, Potchefstroom to two (2) counts of robbery with aggravating circumstances read with section 51(2) of the Criminal Law Amendment Act 105 of 1997 ('the CLAA') on 9 July 2014. The appellant was duly convicted on his plea of guilty and sentenced on the same date to fifteen (15) years imprisonment on each of the two counts, with five (5) years of the fifteen years' imprisonment on the second count ordered to run concurrently with the fifteen years' imprisonment imposed on the first count. The appellant was therefore sentenced to an effective twenty-five (25) years imprisonment.
[2]	The appellant on the date of sentence applied for leave to appeal against sentence which was refused by the Regional Magistrate. The appellant consequently petitioned the Judge President of the Division. On 23 March 2021 the appellant was granted leave to appeal the sentence, on petition, by two judges of the Division.
[3]	The parties agreed to dispense with the hearing of oral arguments and requested this Court to decide the appeal on the papers, with reference to the written heads of argument. The appeal was accordingly considered on the papers.
Condonation
[4]	The appellant failed to prosecute his appeal timeously and has filed an application for condonation for the late filing of the appeal accompanied by an affidavit in support of the application.
[5]	In Mulaudzi v Old Mutual Life Assurance company (SA) Limited, Ponnan JA re-affirmed the factors to be considered in respect of an application for condonation stated in Melane v Santam Insurance Co. Ltd:
"Factors which usually weigh with this court in considering an application for condonation include the degree of non-compliance, the explanation therefor, the importance of the case, a respondent's interest in the finality of the judgment of the court below, the convenience of this court and the avoidance of unnecessary delay in the administration of justice."
[6]	In Grootboom v National Prosecuting Authority the Constitutional Court re-affirmed the trite principle that:
"It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court's indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the rules or court's directions. Of great significance, the explanation must be reasonable enough to excuse the default."
[7]	The main reason advanced by the appellant for the lateness in prosecuting the appeal following the granting of leave to appeal on petition, is that he upon becoming aware of leave to appeal being granted against sentence on petition in March 2021, made numerous applications for legal aid assistance through a correctional official at Kutamasinthumile Correctional Centre in Limpopo Province to no avail. According to the appellant he only received a response from the Mahikeng Office of Legal Aid South Africa during January 2022, when he made a telephonic enquiry to the said office and was advised that the matter was being attended to by Mr Gonyane of the said office.
[8]	Mr Gonyane only made telephonic contact with the appellant on 5 April 2022 to consult with him. During the consultation he was informed by Mr Gonyane that he had only received the file from his High Court Manager on 14 February 2022 and that he had made the necessary arrangements to have the appeal enrolled. The appellant maintains that he relied on the assistance of and advise of his legal representatives and that no fault can be attributed to him for the delay in prosecuting the appeal.
[9]	The application for condonation is not opposed by the respondent. The appellant's explanation is accepted and sufficient cause has been shown for condonation to be granted. Condonation for the late filing of the appeal is accordingly granted.
Grounds of appeal
[10]	The grounds of appeal are set out in the Notice of Appeal as follows:
"AD SENTENCE
1.	It will be argued that the trial court misdirected itself by failure to find that the appellant's personal circumstances are substantial and compelling circumstances justifying a departure from the prescribed minimum sentence.
1.1		It will be argued that the trial court misdirected itself by imposing an effective sentence of twenty five (25) years imprisonment on 2x counts of Robbery with aggravating circumstances.
1.2	The implications of the prescribed minimum sentence read with the provisions of section 51(2) of the Criminal Law Amendment Act 105 of 1997 were not explained to the appellant though he pleaded guilty on both counts and it thus renders the trial or sentence unfair."
The alleged failure to explain the implications of the provisions of section 51(2) of the CLAA
[11]	Before turning to the facts of the matter, it is apposite to have regard to the ground of appeal listed as 1.2 supra to the effect that the Regional Magistrate failed to explain the implications of the provisions of section 51(2) of the CLAA to the appellant. The following appears from the transcribed record of proceedings in respect of the appellant (accused 2 at trial):
"COURT: Mr Ne/ did your attorney explain to you the implications of the minimum sentences? ...
ACCUSED 2: It has been explained Your Worship.
COURT: Thank you. And how do you plead on the charges?
ACCUSED 2: Your Worship I do understand the two charges read against me. I plead guilty to both charge 1 and charge 2."
[12]	There was substantial compliance with the provisions of section 51(2) of the CLAA, which were not only read to the appellant as part of the charge, but he confirmed that the implications thereof were explained to him by his legal representative both to the Regional Magistrate and in his guilty plea statement. From the aforesaid it is clear that the ground of appeal that the implications of section 51(2) of the CLAA were not explained to the appellant, is without merit.
[13]	Whether or not the facts on which the appellant's plea of guilty to both charges fall within the ambit of section 51(2) of the CLAA, must be considered against the content of the plea. Whilst the appellant appeals only against sentence, regard must be had to the facts of the matter.
Conviction
[14]	The facts on which the appellant's plea of guilty to both counts were based are as follows. In his plea of guilty to both counts as set out in a statement in terms of section 112(2) of the Criminal Procedure Act 51 of 1977, the appellant stated as follows in respect of the facts:
"I the undersigned Armand Nell hereby make the following statement:
8.
8.1	I plead guilty on the charge 1 Robbery aggravating.
8.2	I admit that upon 31 October 2013 and at Gerl Van Rensburg Stadium Fochville in the Regional Division of North West, I did unlawfully and intentionally assault Lucy Randall and did then and with force take the following items from her, to wit Opel [....]and R400 cash her property or property in her lawful possession, aggravating circumstances being panga was used.
8.3	On the abovementioned date myself and my co-accused went to the Gerl Van Rensburg Stadium. We saw a White Opel Astra with the abovementioned registration number. We opened the driver's door and asked the lady in the car to climb into the backseat. In our possession we had a panga with which we threatened her. My co-accused and the lady climbed into the backseat of the vehicle. I climbed into the driver seat and started to drive away. We drove to West Driefontein Gold Plant, where we (sic) took into the field and left her binded to a tree. We drove off with the vehicle.
8.4	On this day I knew that Robbery with aggravating circumstances is an offence punishable in any Court of law.
8.5	I also know that by taking the motor vehicle with force was Robbery with aggravating circumstances.
9.
9.1	I also plead guilty on the charge 2 Robbery aggravating.
9.2	I admit that upon 1 November 2013 and at Sun City in the Regional Division of North West, I did unlawfully and intentionally assault Thuso Elias Masito and did then and with force take the following items from him, to wit Samsung E250; Blackberry; jacket karate suit and tekkies his property or property in his lawful possession, aggravating circumstances being a firearm was used.
9.3	On the abovementioned date myself and my co-accused picked up abovementioned hitchhiker. We drove off and stopped along the way next to a field. We threatened him with a firearm and told him to undress, thereafter we told him to get out and we drove off with his abovementioned property.
9.4	On this day I knew that Robbery with aggravating circumstances is an offence punishable in any Court of law.
9.5	I also know that threatening a person with a firearm and then taking his property with force was Robbery with aggravating circumstances."
The test on appeal
[15]	It is trite that a court of appeal will not lightly interfere with the sentencing discretion of a trial court. The position is succinctly set out in S v Malgas where it was held that:
"[12] The mental process in which courts engage when considering questions of sentence depends upon the task at hand. Subject of course to any limitations imposed by legislation or binding judicial precedent, a trial court will consider the particular circumstances of the case in the light of the well-known triad of factors relevant to sentence and impose what it considers to be a just and appropriate sentence. 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 emphasized 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 limitation exists in the former situation." (my emphasis)
Submissions on sentence
[16]	The essence of the submissions of Mr Gonyane for the appellant in his heads of argument is that the personal circumstances of the appellant cumulatively considered were such as to justify a departure from the prescribed sentence. In elaboration thereof the submission is that the appellant pleaded guilty to both charges, thereby demonstrating remorse and did not minimise his role in the robberies. The personal circumstances of the appellant relied on in this regard is that he was 31 years old at the time of sentence and had lived a clean life until then as he had no previous convictions, was divorced, had a four year' old child, had passed matric, had a N6 certificate in Engineering and had spent eight (8) months in custody awaiting finalisation of his trial. Emphasis is placed on the appellant suffering from epilepsy and bipolar disorder. No medical evidence was however presented to the trial court in this regard. The sentence is further said to be disproportional to the circumstances of the two offences, which are submitted occurred during the course of one evening as a single transaction, where the complainants who were threatened with a panga and firearm respectively were not injured. The submission is without merit having regard to the fact that the two offences were committed at two different districts within in the North West Province, which are separated by vast distance.
[17]	Adv. Muneri for the respondent in the main contends that the Regional Magistrate gave due consideration to the circumstances of the two offences and correctly emphasized the seriousness of the offences and the aggravating factors relevant thereto.
[18]	In S v Matytyi, Ponnan JA stated as follows:
"[23] Despite certain limited successes there has been no real let-up in the crime pandemic that engulfs our country. The situation continues to be alarming. It follows that, to borrow from Ma/gas, it still is 'no longer business as usual'. And yet one notices all too frequently a willingness on the part of sentencing courts to deviate from the minimum sentences prescribed by the legislature for the flimsiest of reasons - reasons, as here, that do not survive scrutiny. As Ma/gas 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." (my emphasis)
[19]	The age of the appellant as a first offender can safely be construed as a flimsy reason why the regional magistrate should have deviated from the mandated sentence. The plea of guilty by the appellant did nothing to tilt the scales in his favour. The magistrate in my view was correct in the assessment of the factors in mitigation and aggravation of sentence to find no substantial and compelling circumstances to justify a deviation from the mandated sentences on the two charges. The question which remains, is whether the cumulative effect of the sentence of twenty-five years is unduly harsh.
[20]	In the unreported judgment of Mhlambi v S the Supreme Court of Appeal dealt with the issue of the cumulative effect of sentence in relation to, inter alia, two counts of robbery with aggravating circumstances, as follows:
"[1]	The appellant was convicted in the regional court, Oberholzer, on two counts of robbery with aggravating circumstances, one count of unlawful possession of a firearm and one count of unlawful possession of ammunition. He was sentenced to 15 years' imprisonment on each of the two counts of robbery (counts 1 and 2); five years' imprisonment on the charge of unlawful possession of a firearm (count 4); and five years' imprisonment on the charge of unlawful possession of ammunition (count 5). The regional court ordered the sentences on counts 2, 4 and 5 to run concurrently. Thus, the appellant was sentenced effectively to 30 years' imprisonment.
[2]	...The appellant and his co-accused, Mr Tshepo Reginald Matshego, successfully petitioned the Gauteng Division of the High Court, Pretoria (the high court) for leave to appeal against their conviction and sentence. .. The appellant's appeal against sentence was partially successful. The sentence of 15 years' imprisonment on count 1 was set aside and replaced with a sentence of 10 years' imprisonment. The appellant's effective term of imprisonment was thus reduced to 25 years.
[3]	The appellant then petitioned this Court for special leave to appeal against his conviction and sentence. He was granted leave to appeal against sentence only.
[13]	The grounds of appeal, in summary, are these. Despite its finding that the trial court was under the wrong impression that the minimum sentences in s 51 of the Criminal Law Amendment Act 105 of 1997 were applicable to counts 1 and 2, the high court erred in failing to find that the sentences on those counts were vitiated by material misdirection. It should have remitted the matter to the trial court to impose sentence afresh. The high court erred in overemphasising the seriousness of the offence and the interests of society, and failed to balance these factors properly against the appellant's personal circumstances. It also erred in overemphasising the deterrent and retributive aspects of punishment at the expense of rehabilitation and prevention. The court failed to take into account the cumulative effect of the sentences imposed.
[17]	The appellant and his co-perpetrators subdued their victims by threatening them with firearms. Contrary to the appellant's submission, the fact that no one was killed or injured was not due to the conduct of the robbers, but because of the fear they instilled in their victims. A further aggravating factor was that the driver of the Hino truck and his passengers were kidnapped and held hostage for five hours at gunpoint.
[18]	Barely three weeks after the first armed robbery, the appellant and his co-accused committed the second robbery. Mr Stock said that he was terrified when the firearm was pointed at him and he was ordered to lie face down in the truck; and that the robber who drove the truck later said that he would not kill him. He was also threatened with a firearm whilst being bound hand and foot, and Jeff on the side of the road.
[20]	In the circumstances, the submission on behalf of the appellant that the sentence imposed 'is an extremely severe punishment that should be reserved for particular heinous offences', has no merit. The cases relied upon by the appellant are distinguishable on their facts and do not support the submission advanced.
[21]	The appellant's personal circumstances were properly taken into account. For practical purposes, he was a first offender. He owned property that pointed to stability. He was 33 years old when the crimes were committed, had passed matric, has two children aged 9 and 13, and earned R800 per week making and installing burglar bars and security gates.
[22]	The present case is one in which the personal circumstances of the appellant are overshadowed by the seriousness of the crimes and the interests of society.
[24]	The cumulative effect of the sentences imposed on the appellant in respect of counts 1, 2 and 4 were properly controlled and its undue harshness suitably mitigated in the high court's order. It held that whilst individual sentences ought not to be disturbed when there was no misdirection by the sentencing court, the effective sentence of 30 years' imprisonment was excessive, and induced a sense of shock. It referred to the judgments of this Court in which it has warned against the imposition by trial courts of excessively long sentences; and held that such sentences 'ought to be realistic and should not be open to the interpretation that they have been designed for public consumption'.
[25]	The high court accordingly set aside the sentence of 15 years' imprisonment imposed on the appellant in respect of count 1 and substituted it with a sentence of 10 years' imprisonment. In doing so, the court reasoned that since both the appellant and Mr Matshego had been convicted on count 2, if the sentences on counts 1 and 2 had to run concurrently in their entirety, the purpose of adequately punishing the appellant for his conduct, would be defeated. This finding and the reasons for it cannot be faulted.
[26]	In the result, the appeal is dismissed."
Discussion
[21]	In the present appeal, the robberies were committed within a space of 24 hours, with a panga and firearm used to subdue the complainants. The complainant on the first charge was taken to a veld near a mine where she was tied to a tree and left deserted. The complainant on the second charge was made to undress himself and deserted in that undignified manner in a veld. These aggravating factors were weighed against the personal circumstances of the appellant and the interests of society by the Regional Magistrate and the aggravating factors were correctly found to outweigh the personal circumstances of the appellant.
[22]	The sentence imposed by the Regional Magistrate, in the absence of an order of concurrency, would have been thirty years' imprisonment. The time spent in custody by the appellant and ameliorating the sentence with a measure of mercy resulted in an effective twenty-five years' imprisonment. In considering the effective sentence of twenty­ five years' imprisonment, the question is not what this Court may consider to be a suitable sentence, but whether the Regional Magistrate materially misdirected herself in exercising the requisite sentencing  discretion.  This Court  cannot  find that the Regional Magistrate misdirected herself in ultimately imposing an effective sentence of twenty-five years' imprisonment.
[23]	The appeal against sentence should accordingly fail.
Order
[24]	In the result, the following order is made:
(i)	Condonation for the late noting and prosecution of the appeal against sentence is granted.
(ii)	The appeal against sentence is dismissed.

A H PETERSEN
JUDGE OF THE HIGH COURT 
NORTH WEST DIVISION, MAHIKENG
I agree
SAMKELO GURA
JUDGE OF THE HIGH COURT 
NORTH WEST DIVISION, MAHIKENG

For appellant: 			Mr T G Gonyane
Instructed by:			Legal Aid South Africa
Mahikeng Justice Centre
For respondent: 			Adv T Muneri
Instructed by:			The Director of Public Prosecutions, Mahikeng