IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO: A 468/09

In the matter between

and

For the Applicant
Adv. A. Caiger

For the State 
Adv. P. Van Wyk

In the High Court of South Africa 
Western Cape High Court, Cape Town

Case No:   A 468/09 
On roll: Division 9 
Set down for 12/02/2010

In the matter between:

and

S. OLIVIER AJ Introduction
1. This is an appeal against sentence.
2. The appellant, as accused number two, and his two co-accused were charged on 8 March 2006 with two counts of robbery with aggravating circumstances, two counts of attempted murder, one count of unlawful possession of a firearm, one count of unlawful possession of ammunition, one count of pointing of a firearm and one count of unlawful possession of a dangerous weapon in the Wynberg regional court.

7. The appellant's co-accused, Lwondiso Xunda, on appeal under case number A 379/2007. had his convictions and sentences confirmed by this Court on 7 March 2008.
8. The appellant now appeals against the sentences imposed upon him by the regional court, after having been granted leave to appeal by the regional court on 14 May 2009.

Background

11. The appellant was placed on the scene by virtue of his fingerprints being found on a porcelain pot that was in a drawer in a sideboard in which the small change stolen from the residence was stored. The finger print identification was beyond doubt and no proper explanation could be given for it being on the porcelain pot. DNA analysis also inexorably linked the first accused to the crime scene.
12. Accordingly the first accused and the appellant were convicted.

A duplication of charges on the first two counts?
13. Though the appeal is directed against sentence only it appears that there may have been a duplication with regard to the two charges of robbery. They were levelled as follows: first that the accused unlawfully and with the intention to force him into submission, used force against Alistair Schreiber or threatened and led him to believe that force would be used on him, by threatening him with a firearm and by hitting him with the firearm and unlawfully and with the intent to steal one set of house keys with a remote, one set of car keys and coins, the property of or in the lawful possession or under the control of the said Michael Schreiber and. second, that the accused unlawfully and with the intention to force into submission, used force against Michael Schreiber or threatened and led him to believe that force would be used on him by threatening him with a knife, and unlawfully and with the intent to steal money the property of or in the lawful possession or under the control of the said of Michael Schreiber.

15. In the instant case, however, the appeal is against the sentence only and there is no appeal against the conviction. When we raised the issue with counsel we were met with a muted response.
16. In the premises it does not appear to be a case in which the invoke the provisions of section 304(4) of the Criminal Procedure Act, 51 of 1977, which provides a general remedy to correct proceedings of any lower court which are not subject to automatic review, should be applied. Should the appellant wish to do so, it is open to him to bring a proper application to appeal his conviction on the two charges of robbery, if so advised.
The sentences imposed

21. He also found that the appellant was a second offender, as contemplated by section 51{2)(a)(ii) of the Act, as robbery is an offence referred to in Part II of Schedule 2, and, as such, was to be sentenced to imprisonment for a period of not less than 20 years.

"1. of the same kind or degree as; 2. so great, having a quality in so high a degree; 3. of the kind or degree already described or implied in context; 4. the aforesaid, of the aforesaid kind; 5. of a kind that demands exclamatory description; 6. of a kind or degree sufficient to explain the preceding or following statement; 7. of particular kind but not needing to be specified; 8. such a person or thing; 9. those who, persons such as; 10. that, the thing 2. or action referred to; 11. as being what has been named; 12. things of such a kind; 13. the aforesaid thing."

33. Marais JA held as follows at 869

“

(At 317.) After referring to a number of decisions in England in which the courts had declined to give the word 'such' a sthctly confined

(The emphasis in the passage quoted is mine)

These observations seem, with respect, so redolent of common sense that I would not wish to demur However, it remains of course a question whether in any given case there is indeed adequate justification for concluding that the 'real intention' of the Legislature is properly evidenced. In answering the question the dividing line between impermissible speculation as to the purpose of legislation and permissible reliance upon factors dehors the language under consideration to discover it, is admittedly sometimes fine but it is a conceptually clear line which must be respected"

Substantial and compelling circumstances

41. These arguments do not have any substance to them - it was perhaps only fortuitous that no serious injury or death resulted from the commissioning of the offences. After all the appellant and accused one were correctly convicted of attempted murder. They only took little because that was all that they could lay their hands on. In addition the appellant fled the police and only submitted to his arrest when cornered and after warning shots were fired - and then only after having drawn his knife on the arresting officer.

…...........

44. I accordingly find that there are no substantial or compelling reasons for not imposing the minimum sentence of 15 years on each count of robbery with aggravating circumstances.
45. Mr Caiger had submitted in his heads of argument that a sentence of 10 to 15 years imprisonment would have been appropriate in the circumstances.
46. A sentence of 15 years in respect of robbery with aggravating circumstances would, given the facts and circumstances set out above, be proportionate. This term also accords with Mr Caiger's submission.
47. In the premises I would
(a) uphold the appeal against the sentences imposed in respect of counts one and two - that is the counts of robbery with aggravating circumstances - and substitute the sentences of 20 years with sentences of imprisonment of 15 years in respect of each count.
(b) hold that these sentences are to run concurrently with the remainder of the sentences imposed by the learned Magistrate.

(c) Save as aforesaid I would dismiss the appeal against the other sentences imposed by the learned Magistrate.

NDITA, J: I agree, it is so ordered