FREE STATE HIGH COURT by 72z4fy

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									           FREE STATE HIGH COURT, BLOEMFONTEIN
                 REPUBLIC OF SOUTH AFRICA


                                                      Appeal No: A192/09



In the matter between:
SIMON TEBA                                                  1st Appellant


PHILIP MAKATSA                                              2nd Appellant

and
THE STATE
     Respondent


CORAM:       CILLIe, J efVAN DER MERWE, J etG, KHAN, AJ


JUDGMENT BY: G. KAHN, AJ
DELIVERED ON: 26 MAY 2011         \




[1] This is an appeal by the Appellants against the sentence imposed by
the Court a quo and is heard before this Court with the leave of the
Court below. The Appellants, who comprised accused 2 and 3 in the
Court below, were each convicted of one count of murder and one count
of robbery with aggravating circumstances respectively. In consequence,
on 18 February 2000, they were each sentenced to life-imprisonment in
respect of the count of murder and 15 years imprisonment in respect of
that of robbery.

[2] It is a trite principle of our law that within the domain of sentencing,
the trial court is primarily possessed of the requisite judicial discretion
wherewith to impose a sentence. Furthermore, that the court of appeal
will not interfere with such discretion unless the trial court failed to
exercise its discretionary function judiciously, misdirected itself in
material respects, imposed a shockingly inappropriate sentence or
imposed a sentence which no reasonable court would have done (S v
Malgas 2001 (1) SACR 469 (SCA; S v Salzwedel and Others 2000 (1)
SA 786 (SCA) and S v PETKAR 1988 (3) SA 571 (A) at 574 C).

[3] I shall assume, without making a formal finding that the provisions of
Section 51 of the General Law Amendment Act 105 of 1997 (the Act)
applied to the two aforementioned criminal counts in casu. Sub-section
51(3) of the Act provides, inter alia, that the Court is obliged to impose
the prescribed minimum sentences as provided for in subsections 51(1)
and 51(2), unless there are substantial and compelling circumstances
which justify the imposition of a lesser sentence.

[4] Sub-section 51(1) read with Part 1 of Schedule 2 of the Act provides
that where an accused is convicted of murder which was planned or
premeditated or where the death of the victim was caused following
robbery or attempted robbery with aggravating circumstances, said
accused shall be sentenced to life imprisonment in the absence of
substantial and compelling circumstances which would justify a lesser
sentence. On the count of murder in casu, the Appellants were liable to
be sentenced to life imprisonment in the absence of substantial and
compelling circumstances. Regarding the charge of robbery wit
aggravating circumstances, each accused was liable to be sentenced to
a minimum of 15 years in the absence of substantial and compelling
circumstances.

[5] Subsection 51 (2) read with Part 11 of Schedule 2 of the Act makes
provision for the imposition of a minimum sentence relative to the charge
of robbery with aggravating circumstances, or where it involves the
taking of a motor vehicle, it places an obligation on the trial court to
impose a specified sentence upon the accused, in his/her capacity as
first offender. Such specified sentence constitutes a term of
imprisonment of not less than fifteen (15) years in the absence of
substantial and compelling circumstances, which would justify a lesser
sentence.

[6] The trial judge in the court a quo was acutely aware of the
aforedescribed provision, given his sweeping reference thereto. He, inter
alia, opined the following in his judgment at page 25, lines 4-8, (inclusive
thereof): "Sub-artikel 51(3) van die wet bepaal in algemene terme dat
indien daar wesentlike en dwingende omstandighede bestaan wat die
oplegging van n mindere vonnis as die vonnisse in subartikels 51 (1) en
51 (2) van die wet voorgeskryf regverdig, ek so mindere vonnis kan
ople". The trial judge, in his evaluation of the evidence, found that the
Appellants' collective moral blameworthiness was reduced in
consequence of the following prevailing circumstances in the trial a quo:
             (i) the Appellants" respective youthfulness
(ii)   the absence of a pre-meditated criminal act
             (iii) that the accused did not initiate the crime, more
             particularly that of robbery, which, having triggered off a
             domino chain of events, ultimately resulting in the murder of
             the victim
             (iv) that accused 1 in the trial a quo, who clearly constituted
             the proverbial leader of the pack, initiated the offences and
             played a leading role, thereby reducing the blameworthiness
              of the Appellants, given that their actions were attributed
              largely to their youthfulness and loyalty to accused number
              1.

[7] The trial judge notably accepted that the aforementioned
circumstances constituted substantial and compelling circumstances and,
without making a formal finding stated that said circumstances, in
appropriate circumstances, are indeed compelling and substantial as
contemplated in Section 51 (3) (a) of the Act. However, he proceeded to
state that the acceptance of the said circumstances as compelling and
substantial did not mean that he was obligated to impose a lesser
sentence than that prescribed by the Act and that he was still possessed
of the judicial discretion to consider an appropriate sentence in the light
of all the prevailing facts.

[8] The trial judge thus evaluated the nature and severity of the offences,
the prevalence and high incidence of the offences, the constitutional
value and the protection of the right to life, the duty of the judiciary to
stem the tide of crimes of murder by removing the offenders
permanently from society thereby reducing the high rate of violent
crimes and further conveying a message to civil society that violent
crimes will not be tolerated.

[9] The trial judge continued to evaluate whether the Appellants as
human material could be rehabilitated. He found that they showed no
remorse in and during the proceedings and more particularly when
delivering their testimony. The trial judge found that the accused tried to
distance themselves from crime and to lesser or greater degree
attempted to shift the blame to accused 1. The court nevertheless found
that the Appellants showed remorse or were capable of developing
remorse later in life and, as such, they constituted material for
rehabilitation. The trial judge considered the extreme cruelty with which
the victim was murdered together with the determination implemented by
the accused to ensure that the victim did not survive the attack and
concluded that despite the presence of substantial and compelling
circumstances in the trial a quo he was not obliged to depart from the
sentence prescribed by the Act. It is my view; the trial judge misdirected
himself in that respect.

[10] The same principle was raised and deliberated upon in the full
bench judgment of S v SM and Others 2010 (1) SACR 504 (WCC). The
full bench in that case was split on the issue. The majority in that case
reasoned as the trial judge did in this matter. In the minority judgment,
Moosa J, postulated the issue in para 1 as follows:

"The crisp legal issue that has to be determined in this appeal on sentence, aside
from the factual issues, is: can the trial court, after having found that substantial and
compelling circumstances exist as envisaged in s 51(3) (a) read with ss (1) of the
Criminal Law Amendment Act 105 of 1997 (the Act), exercise its sentencing discretion
to impose life imprisonment? This question impacts on appellants 1, 2 and 3 who
were sentenced to life imprisonment on the charge of murder. A useful point of
departure is to ascertain the intention of the legislature as reflected in s 51(3) (a) and
as it obtained at the time sentences were handed down in this matter."



After analyzing the relevant statutory provisions and the case law,
Moosa J, concluded as follows:


"[9] In the case of s 51(3) (a) read with ss (1) of the Act, if no substantial and
compelling circumstances are found to exist, the court has no discretion, but to
impose life imprisonment. However, should the court in such case find that substantial
and compelling circumstances exist to impose a lesser sentence, then the residual
discretion of the court is circumscribed, in that the court is obliged to impose a
sentence other than life imprisonment, in accordance with the doctrine of
proportionality, by taking into consideration that the legislature has ordained life
imprisonment for such scheduled offence in the absence of substantial and
compelling circumstances.


[10] In the case of s 51(3) (a) read with ss (2), if no substantial and compelling
circumstances are found to exist, in my view, the discretion of the court is
circumscribed, to the extent that it is free to impose any sentence, depending on the
circumstances of the case, but not less than that prescribed. However, should the
court find substantial and compelling circumstances exist to impose a lesser sentence,
the residual discretion of the court to impose sentence is circumscribed, to the extent
that it is obliged to impose a sentence other than that prescribed, but in accordance
with the doctrine of proportionality, by taking into consideration that the legislature has
ordained a prescribed sentence for such scheduled offence in the absence of
substantial and compelling circumstances."


[11] I am ad idem with the ratio decidini that led Moosa J to the
conclusions outlined in paras (9) and (10) of the excerpt cited supra. The
conclusion in para (10) relates to a robbery charge and is equally
applicable to the robbery count in this matter.

[12] Having found that the trial judge misdirected himself in a material
respect, I am at liberty to impose sentencing afresh in respect of both
the counts of murder and robbery subject to the residual discretion to
impose a lesser penalty than those prescribed by the Act but in
accordance with the doctrine of proportionality. I will accordingly proceed
to sentence afresh.

[13] The personal circumstances of both Appellants have been fully
outlined in the judgment of the court a quo and as such I shall refrain
from repeating the same in this judgment. The substantial and
compelling circumstances have likewise been adequately described.
The court a quo further found that the Appellants displayed an element
of remorse or could develop remorse with the passage of time and that
the prospect of rehabilitation applies to both Appellants.
[14] On the other hand the court a quo, and in my view correctly,
emphasized the cruel and gruesome nature of the murder and the
seriousness thereof; inter alia that the robbery was the precursor of the
murder; the prevalence and high incidence of crimes like murder and
robbery in the jurisdiction of the court a quo; the duty of the courts to
protect members of society by imposing heavy sentences that will send
a clear message to the community at large that violent crimes will not be
tolerated, thereby comprising an element of deterrence. The victim was
an only child thus rendering his elderly parents childless. The motor
vehicle was destroyed causing the victims to sustain pecuniary damages
to the extent of R18 000.00.

[15] Having considered all the circumstances including the nature and
severity of the offences, the interests of society, the interests of the
victims, the personal circumstances of the Appellants, and the purpose
of punishment, my conclusion is that direct imprisonment is the only
appropriate sentence in casu. The personal circumstances of each
Appellant and his respective involvement are substantially the same.
There is thus no reason to treat them differently. I also take into
consideration that they were in custody as awaiting trial prisoners for
approximately 16 months. The circumstances which underpin the chain
of events relative to both criminal counts occurred at the same time and
place, concern the same parties and arose from the same facts. In the
circumstances, I propose that the sentences run concurrently.

[16] In the result, I set aside the sentence of the court a quo and
substitute the following sentences in its stead:

    (i)     Count 1. murder: accused 2 and 3 are sentenced to 20
    years
    imprisonment; and

    (ii)    Count 2, robbery with aggravating circumstances: accused
    2
    and 3 are sentenced to 10 years imprisonment.

    The sentence in respect of count 2 (robbery) shall run concurrently
    with the sentence imposed in respect of count 1 (murder).




                                KHAN, AJ
I concur




           VAN DER MERWE, J
I concur
               CILLIE, AJ




I concur




I concur

								
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