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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

APPEAL CASE NO: A26/2020

COURT A QUO CASE NO: 41/630/2017

DPP REF NO: 10/2/5/1-2020/018

DATE: 22^nd October 2020

In the matter between:

KHUMALO: THOBANI                                                                                            Appellant

- and -

THE STATE                                                                                                         Respondent

Coram: Adams J et Khumalo AJ

Heard on: 22 October 2020 – This appeal was, by consent between the parties, disposed of without an oral hearing in terms of s 19(a) of the Superior Courts Act 10 of 2013.

Delivered: 22 October 2020 – This judgment was handed down electronically by circulation to the parties' representatives by email, by being uploaded to the CaseLines system of the GLD and by release to SAFLII. The date and time for hand-down is deemed to be 15H00 on 22 October 2020.

Summary: Criminal law and procedure – robbery with aggravating circumstances – appellant sentenced to 15 years’ minimum sentence – failure to refer to the Criminal Law Amendment Act 105 of 1997 in the charge sheet or at the commencement of trial does not necessarily vitiate the sentence – no substantial and compelling reasons to deviate from the minimum sentence of 15 years imprisonment – appeal against sentence dismissed.

ORDER

On appeal from: The Regional Court for the Region of Gauteng, held at Johannesburg (Regional Magistrate van der Schyff sitting as Court of first instance):

(1) The appellant’s appeal against his sentence is dismissed.

(2) The appellant’s conviction and his sentence by the Regional Court be and are hereby confirmed.

JUDGMENT

Khumalo AJ (Adams J concurring):

[1]. The appellant and his accomplice were charged in the Johannesburg Regional Court with ‘Housebreaking with intent to rob and Robbery with aggravating circumstances as intended in section 1 of Act 51 of 1977 read with the provisions of section 262(1) and section 260 of the Criminal Procedure Act 51 of 1977’.

[2]. The appellant and his accomplice were both found guilty of the crime of robbery with aggravating circumstances and were sentenced to 15 years’ imprisonment on 29 August 2017.

[3]. The appellant applied for leave to appeal his conviction and sentence in terms of section 309B of the Criminal Procedure Act (‘the CPA’) but the trial Court dismissed that application.

[4]. The appellant then petitioned the Judge President of the Gauteng Division for leave to appeal to this Court in terms of section 309C of the CPA and he was granted leave to appeal in respect of the sentence only on 5 February 2020.

[5]. This appeal concerns sentence only.

Facts giving rise to this appeal

[6]. I briefly set out the facts giving rise to this appeal below.

[7]. The appellant was 22 years old when he was sentenced on 29 August 2017. The evidence led in the trial court and accepted by the trial court was that the appellant and his accomplice entered the house of the complainant(s) in Bezuidenhoudt Valley, Johannesburg, on 18 May 2017, at approximately 22h00 with the intention to rob the complainants. The main gate and the kitchen door were apparently unlocked, and the trial court assumed without deciding the issue that the main gate and the kitchen door were deliberately left open by the accomplice’s mother, who worked for the complainants as a domestic helper.

[8]. The appellant and his accomplice were acquitted on the charge of housebreaking because the main gate and the kitchen door were left open and so there was no break in.

[9]. Upon entering the complainants house, the appellant and his accomplice were confronted by the father and son complainants, and instead of running away, the appellant and his accomplice assaulted the complainants by stabbing the son multiple times with a knife and by hitting the father multiple times with a hammer.

[10]. The son was stabbed by the appellant at least five times, once in the lower torso, twice on the right side of the leg, once on the side of the knee and once on the right side upper torso. He was also hit in the head with a hammer ten times by the appellant’s accomplice. The father was also hit with a hammer.

[11]. The father and son combination managed to restrain the appellant following a struggle. The accomplice managed to escape but was arrested a few minutes later by the police who were called to the scene.

[12]. In addition to the knife and hammer, the police found cable ties, hand gloves and a mask in the accomplice’s possession.

[13]. The complainants sustained injuries which required medical treatment and stiches, but they were never hospitalised.

[14]. It was on the basis of the above facts that the appellant and his accomplice were convicted and sentenced.

[15]. When handing down the sentence, the trial court concluded that there were no substantial and compelling circumstances which justified a departure from the prescribed minimum sentence of 15 years.

[16]. As I pointed out earlier, the appellant was only granted leave to appeal against the sentence.

Grounds of appeal

[17]. In his petition to the Judge President, the appellant contended that the sentence of 15 years was too severe. He also contended that the trial Magistrate erred in law by ‘failing to exercise his discretionary power to find substantial and compelling circumstances existed in mitigation as an extenuating factor’ and that he failed ‘to exercise his discretionary power to deviate from imposing the prescribed minimum sentence of 15 years where substantial and compelling circumstances exist’. The appellant further contended that the trial Magistrate failed to consider the provisions of s 51(3) of the Criminal Law Amendment Act 105 of 1997 (‘Minimum Sentences Act’) by failing to deviate from the minimum sentence. In particular, he contended that the trial Magistrate failed to take his personal circumstances into account, namely, that he was 22 years old, he was a first offender, and he had three children who depended on him.

[18]. In the heads of argument filed on the appellant’s behalf, it is mentioned for the first time that ‘the appellant was never warned of the applicability of the minimum sentence by virtue of the fact that the robbery was committed with the use of a weapon’ and that he ‘had to show substantial and compelling circumstances for the trial court to deviate from the prescribed minimum sentence and impose a lesser sentence’. The appellant’s counsel also argued that the trial court should have found the appellant’s age and the fact that he was a first offender to constitute substantial and compelling circumstances.

[19]. I consider it appropriate to first deal with the failure by the trial Magistrate and the state to warn the appellant of the provisions of s 51 of the Minimum Sentences Act.

Failure by the trial court to alert the appellant to the provisions of s 51 of the Minimum Sentences Act

[20]. It appears from the record of the proceedings in the trial court that Minimum Sentences Act was not mentioned in the charge sheet or at the commencement of the trial. It also appears that the trial Magistrate did not warn the appellant about the applicability of the Minimum Sentences Act and its consequences.

[21]. It appears that the first time the Minimum Sentences Act was mentioned in the trial court was during the sentencing phase, when, while leading evidence in mitigation, the appellant’s counsel confirmed that the minimum sentence applicable was 15 years and asked the court to deviate from the prescribed minimum sentence on the basis that there were substantial and compelling circumstances justifying the departure.

[22]. The question whether failure to adequately warn the accused person of the applicability of the Minimum Sentences Act vitiates the proceedings has received a lot of attention by the SCA (see, Moses Tshoga v The State 2016 ZASCA 205 (15 December 2016). The SCA had expressed itself in less than clear terms in a number of judgments.

[23]. The question was finally settled by the Constitutional Court in M T v S; A S B v S; September v S 2018 (2) SACR 592 (CC) (‘MT v S’). The Constitutional Court, per Dlodlo AJ, stated the position as follows at paras 39 - 40:

‘[39] This precedent[1] has not created a hard-and-fast rule that each case where an accused has not been explicitly informed of the applicability of the Minimum Sentences Act will automatically render a trial unfair.  However, a practice has developed to include the relevant section of the Minimum Sentences Act in the charge sheet because of this precedent.

[40] It is indeed desirable that the charge sheet refers to the relevant penal provision of the Minimum Sentences Act.  This should not, however, be understood as an absolute rule.  Each case must be judged on its particular facts.  Where there is no mention of the applicability of the Minimum Sentences Act in the charge sheet or in the record of the proceedings, a diligent examination of the circumstances of the case must be undertaken in order to determine whether that omission amounts to unfairness in trial.  This is so because even though there may be no such mention, examination of the individual circumstances of a matter may very well reveal sufficient indications that the accused’s section 35(3) right to a fair trial was not in fact infringed.’

[24]. It is therefore clear that failure to mention the applicability of the Minimum Sentences Legislation is not of itself fatal. The question is whether, having regard all the relevant circumstances, it can be said that the accused person had a fair trial.

[25]. The present appeal appears to be on all fours with the appeal that came before the SCA in Ntuli v The State (457/2018) [2018] ZASCA 164 (29 November 2018). The Ntuli appeal was decided after the Constitutional Court judgment in MT v S (supra) and what the SCA said therein is apposite.

[26]. In Ntuli at para 13, the SCA noted that the main ground of appeal raised for the first time on appeal was that the trial court erred in sentencing the appellant in terms of the provisions of the Criminal Law Amendment Act (Minimum Sentences Act) because the charge sheet made no reference to the Act. It was also contended that the trial court failed to warn the appellant of its applicability and implications for him in respect of the sentences that may be imposed.

[27]. At para 14, the SCA noted that counsel for the appellant argued that the failure to mention or forewarn the appellant of the applicability of the provisions of the Minimum Sentences Act, resulted in a serious misdirection that vitiated the proceedings and rendered the trial unfair in respect of sentence.

[28]. In para 16, the SCA noted that respondent’s Counsel conceded that the provisions of the Minimum Sentences Act were not set out in the charge sheet. He however argued that the appellant’s counsel at the trial was aware that the provisions of the Minimum Sentences Act were applicable. In support of this submission, the respondent’s counsel referred to the record where it was recorded that the appellant’s counsel had addressed the trial court on whether there were any substantial and compelling circumstances that justified a deviation from the minimum sentences to be imposed in terms of the Minimum Sentences Act. The respondent’s counsel then contended that no prejudice was suffered by the appellant because his counsel was, at all times during the trial, aware that the Minimum Sentences Act was applicable.

[29]. The SCA then applied the test in MT v S, and held as follows at para 18 of the judgment:

‘[18] I agree with counsel for the respondent that the failure to warn the appellant of the applicability of the Minimum Sentences Act did not render the proceedings unfair, because it is not clear how the appellant could have conducted his defence differently had he known that the Minimum Sentences Act was applicable. I say so because the evidence against the appellant was overwhelming. His fingerprints were found on several of the stolen vehicles and he was unable to furnish an explanation for their presence, which was reasonably possibly true. His defence, was so fanciful that it was correctly rejected by the trial court.’

[30]. Returning to the present appeal, I conclude that the appellant was aware of the charges against him because the charge sheet expressly stated that the charge the appellant was facing was robbery with aggravating circumstances as intended in section 1 of the CPA. That section defines the term ‘aggravating circumstances’ as follows:

'aggravating circumstances', in relation to-

(a) ......

(b) robbery or attempted robbery, means-

(i) the wielding of a fire-arm or any other dangerous weapon;

(ii) he infliction of grievous bodily harm; or

(iii) a threat to inflict grievous bodily harm,

by the offender or an accomplice on the occasion when the offence is committed, whether before or during or after the commission of the offence;’

[31]. The charge the appellant was facing was therefore clearly identified in the charge sheet.

[32]. There is no suggestion in the grounds of appeal or heads of argument that the appellant was prejudiced by the failure to mention the applicability of the Minimum Sentences Act. There is no suggestion that he would have pleaded guilty or he would have conducted his defence differently had he been forewarned.

[33]. To this day, the appellant denies his guilt as is apparent from his application for leave to appeal which was only decided in February 2020 when leave to appeal only the sentence was granted.

[34]. Furthermore, in his trial, his counsel dealt with the provisions of the Minimum Sentences Act in argument on mitigation, which means his counsel would have been alive to the fact that the provisions of the Minimum Sentences Act applied to the present case.

[35]. I also note that the appellant did not mention the issue in his petition for leave to appeal and in his application for leave to appeal. The issue is mentioned in passing in his counsel’s heads of argument during this appeal. Even Counsel does not contend that there was any prejudice. He simply mentions that the appellant was not warned of the applicability of the Minimum Sentences Act and leaves it at that.

[36]. I find that the evidence against the appellant was so overwhelming and his defence (to the charges) so underwhelming and fanciful that it is improbable that the appellant would have conducted his defence differently if he had been forewarned.

[37]. I am therefore inclined to follow the reasoning in Ntuli, and find that the appellant’s rights to a fair trial were not infringed.

[38]. In the circumstances, I find that there is no merit to this ground of appeal.

[39]. I deal next with the severity of the sentence and the question whether there were any substantial and compelling circumstances which justified deviation from the minimum sentence of 15 years.

Were there any substantial and compelling circumstances in this case?

[40]. The appellant was 22 years old when he committed the offence. He was sentenced in the same year in 2017. He had no prior convictions. The evidence led in mitigation was that he did not have children. That is confirmed by his counsel in the heads of argument before this Court (contrary to what the appellant says in his grounds of appeal). The appellant was not working and was not married. He was single and had no dependants.

[41]. The principles applicable to sentencing and circumstances under which an appeal court can interfere with a sentence imposed by a lower court are trite. In S v Hewitt 2017 (1) SACR 309 (SCA) at para 8, the SCA said:

‘[8] It is a trite principle of our law that the imposition of sentence is the prerogative of the trial court. An appellate court may not interfere with this discretion merely because it would have imposed a different sentence. In other words, it is not enough to conclude that its own choice of penalty would have been an appropriate penalty. Something more is required; it must conclude that its own choice of penalty is the appropriate penalty and that the penalty chosen by the trial court is not. Thus, the appellate court must be satisfied that the trial court committed a misdirection of such a nature, degree and seriousness that shows that it did not exercise its sentencing discretion at all or exercised it improperly or unreasonably when imposing it. So, interference is justified only where there exists a ‘striking’ or ‘startling’ or ‘disturbing’ disparity between the trial court’s sentence and that which the appellate court would have imposed. And in such instances the trial court’s discretion is regarded as having been unreasonably exercised.’

[42]. Regarding the severity of the sentence, the appellant submitted that an effective sentence of 15 years’ imprisonment is too severe.

[43]. What the appellant overlooks is that the 15 years is the minimum sentence prescribed by the Legislature. The trial court did not have discretion to impose any sentence it preferred. The minimum sentence prescribed by the Legislature was the starting point, and could only be departed from if he satisfied the trial court that there were substantial and compelling circumstances justifying departure therefrom.

[44]. It was for that reason that the SCA made the following remarks in S v Matyityi 2011 (1) SACR 40 (SCA); [2010] 2 All SA 424 (SCA) at para 23:

‘[23] … It follows that, to borrow from Malgas, 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 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.’

[45]. In Ncgobo v S 2018 (1) SACR 479 (SCA) at para 17, the SCA remarked that ‘in Matyityi the SCA concluded that neither the age of the appellant, nor his background circumstances, constituted substantial and compelling circumstances’.

[46]. I am constrained by these authorities to find that neither the appellant’s age – he is 22 years old – nor the fact that he was a first offender, constitute substantial and compelling circumstances justifying departure from the minimum sentences prescribed by the Legislature. The appellant is not too young to be incarcerated. He falls within the age band that, as the trial court remarked during sentencing, often appears before the court charged with similar offences to the one in this case. It is precisely because he was a first offender that the appellant was sentenced to 15 years’ imprisonment. That is the minimum sentence prescribed for first offenders. Had he been a second offender, the minimum sentence would have been 20 years.

[47]. I find that the trial court considered both the age of the appellant and the fact that he was a first offender. It then balanced that with the other relevant factors applicable to sentencing as referred to in S v Zinn 1969 (2) SA 537 (A), being the interests of society, the personal circumstances of the accused and the nature of the offences that have been committed. The trial court also considered the recognised objectives of sentencing being prevention, rehabilitation, deterrence and retribution.

[48]. There is accordingly no basis on which to find that the sentence imposed by the trial court is disproportionate or shocking and that no other court would have imposed such a sentence. There is in any event no striking or disturbing disparity between the trial court’s sentence and that which this Court would have imposed.

[49]. This Court would accordingly not be entitled to readily interfere with the sentence imposed by the trial court.

Order

The following order is therefore made:

(1)  The appeal against the sentence imposed in the Regional Court for the district of Gauteng held at Johannesburg, is dismissed.

(2)  The convictions and sentence imposed by the Regional Court be and are hereby confirmed.

______________________________________

S KHUMALO

Acting Judge of the High Court of South Africa

Gauteng Local Division, Johannesburg

I agree, and it is so ordered,

______________________________________

L R ADAMS

Judge of the High Court of South Africa

Gauteng Local Division, Johannesburg

HEARD ON:	22th October 2020 – no oral hearing.
DATE OF JUDGMENT:	22nd October 2020 – Judgment handed down electronically.
FOR THE APPELLANT:	Advocate HHP Mkhari
INSTRUCTED BY:	Legal Aid South Africa
FOR THE RESPONDENT:	Advocate Buthelezi
INSTRUCTED BY:	The Office of the Director of Public Prosecutions, Gauteng Local Division, Johannesburg

 

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