S v Dlamini

• Jurisdiction: South Africa
• Judge: Farlam JA, Van Heerden JA, Cachalia JA, Snyders JA and Majiedt JA
• Judgment Date: 27 March 2012
• Citation: 2012 (2) SACR 1 (SCA)
• Docket Number: 362/11 [2012] ZASCA 26
• Hearing Date: 17 February 2012
• Counsel: KJ Kemp SC for the appellant. AA Watt for the state.
• Court: Supreme Court of Appeal

Cachalia JA (Farlam JA concurring): E

[1] This appeal, from the KwaZulu-Natal High Court, is aimed at securing the reduction of an effective sentence of 43 years' imprisonment that was imposed on the appellant on three counts of robbery arising from an incident on 26 April 2002, and two unrelated charges for the unlawful possession of a firearm and ammunition. F

[2] Although this court, on petition, granted the appellant leave to appeal only against his sentence — and Mr Kemp, who appeared on his behalf, drew his heads of argument on this basis — Ms A Watt, counsel for the state, in her written submissions, requested us to consider the 'fact G that there was a duplication of convictions' for the three robbery charges. In support of this submission, and relying on dicta of Wessels JA in S v Grobler[1] she contended that the three charges arose from actions committed with a 'single intent' in a 'continuous transaction'. There was, she submitted, in substance only one offence of robbery — not H three — which this court ought to consider when deciding on an appropriate sentence. Ms Watt accordingly supported the appellant's appeal for the sentence to be reduced. So, at the court's invitation, Mr Kemp applied to amend his grounds of appeal to include duplication of the robbery convictions, and was granted leave to proceed on this basis. I

[3] The appellant, Mr Musa Dlamini, was indicted in the Pinetown Regional Court on six counts: three of robbery arising from the incident on 26 April 2002, one of theft and two for the unlawful possession of an

Cachalia JA (Farlam JA concurring)

A unlicensed firearm and ammunition. The theft charge — not related to the robbery — concerned a motor vehicle that was allegedly stolen in 1999. The police discovered the firearm and ammunition, which were the subject of the remaining charges, in Mr Dlamini's possession three days after the robbery. There was, however, no evidence linking this B firearm and the ammunition to the robbery.

[4] The regional magistrate convicted Mr Dlamini on all counts and found that the robbery occurred in the manner described below.

[5] At about 19h00 on 23 April 2002, Mrs Janet Burgess was at her C private residence in Pinetown waiting for her friends, Mrs Ingrid Usher and Mrs Gale Acutt, to arrive. They had arranged to drive together to a church nearby.

[6] Mrs Usher arrived first, in a Volvo motor vehicle. As she drove into the driveway of Mrs Burgess's house, Mrs Burgess emerged from her D house, locked her front door and turned on the lights illuminating the driveway in front of the garage. She walked a few steps to Mrs Usher's vehicle and asked her whether it would be convenient for all of them to travel to their destination in the Volvo. Mrs Usher agreed and Mrs Burgess then got into the car next to her.

E [7] Soon Mrs Acutt also arrived there in her Toyota motor vehicle and parked in the driveway a short distance from the Volvo. She alighted from her vehicle and began walking towards the Volvo, which had its headlights on and was facing the entrance gate ready to depart.

F [8] At that point three men clad in blue overalls appeared in the driveway. They moved swiftly towards the Volvo. Mr Dlamini was among them. One of the men pointed a firearm at Mrs Acutt, who had reached the Volvo and was preparing to open the rear passenger door to join her friends. The men demanded that the women hand over their possessions. Mrs Acutt tried to steer clear of the armed man by moving G towards the back of the vehicle. At the same time she dropped her car keys next to the back wheel in an attempt to conceal them from the intruders.

[9] Mrs Burgess stepped out of the car, as one of the two unarmed H robbers — later identified as Mr Dlamini — moved quickly towards her demanding that she give him all her possessions. She complied by handing over her handbag and house keys to him.

[10] The robbers also commanded the women to hand over the keys of both cars. Again, they obeyed. The men then got into the two cars and I drove off quickly, taking with them the personal effects of the three women, including their handbags, prescription glasses, cellular phones, cash and a video camera. The incident lasted only a few minutes.

[11] The three charges of robbery were for the items taken from the three women, including the two vehicles belonging to Mrs Acutt and J Mrs Usher. Mr Dlamini was the only person charged with these offences.

Cachalia JA (Farlam JA concurring)

His evidence that he was not present at the scene of the robbery was false A and was properly rejected by the magistrate. The high court correctly confirmed this finding.

[12] Mr Dlamini's conviction for the unrelated firearm and ammunition offences was also upheld by the high court. However, the high court set B aside his conviction for the theft of the motor vehicle in 1999 because of insufficient evidence.

The magistrate's judgment on sentence

[13] The magistrate sentenced Mr Dlamini to 15 years' imprisonment C each for the robbery of Mrs Acutts and Mrs Usher's vehicles, as well as their personal effects, and to 10 years for robbing Mrs Burgess. Section 51(2) of the Criminal Law Amendment Act 105 of 1997 read with part II of schedule 2 is the sentencing regime applicable to these offences. It requires a minimum sentence of 15 years' imprisonment to be imposed on a first-time offender, where there were aggravating D circumstances during a robbery or where the offence involved the taking of a motor vehicle. Section 1 of the Criminal Procedure Act 51 of 1977 includes within its definition of aggravating circumstances the wielding of a firearm and the threat to inflict grievous bodily harm. Both conditions were present during the robbery. This being so, the magistrate E did not explain why he imposed a sentence of 10 years, instead of 15 years, for the count relating to the robbery of Mrs Burgess, but nothing turns on this.

[14] On the firearm and ammunition charges Mr Dlamini was sentenced F to three years' imprisonment (three years for the firearm and one year for the ammunition, which were ordered to run concurrently), and to two years for the theft of the motor vehicle in 1999. Together with the three robbery counts, he was sentenced to serve a total of 45 years' imprisonment.

[15] Mr Dlamini's legal representative asked the court to order that the G sentences run concurrently 'as (they) were committed at the same time'. The prosecutor on the other hand asked for the maximum sentence for each of the robbery counts to be served consecutively because of the gravity of Mr Dlamini's conduct. This submission was surprising in the light of her concession that he was 'an ideal candidate for rehabilitation'. H Nevertheless, she accepted that the 'maximum sentence' may be considered too excessive and therefore asked for a sentence of 'nothing less than 30 years'. The magistrate had no regard to these submissions. His judgment is replete with misdirections, the effect of which I shall consider later. I

[16] But first I must consider the issue that was raised at the beginning of this judgment — whether Mr Dlamini's conviction for three counts of robbery instead of just one count offended against the rule of duplication of convictions. The purpose of the rule is to avoid a person being convicted and sentenced more than once for what is in substance a single J

Cachalia JA (Farlam JA concurring)

A offence, which could have been embodied in a composite charge. [2] It forms part of the constitutional right to a fair trial. [3]

[17] Although s 83 of the Criminal Procedure Act 51 of 1977 permits prosecutors to charge a person with more than one offence when it is B doubtful which of several offences may have been committed, it remains the court's duty to be vigilant that no duplication occurs. [4] This is to avoid prejudice to an accused: not only is there the likelihood that the accused may be punished more severely if convicted for multiple offences instead of just one, but these offences become part of the offender's criminal record. The prejudice is evidently more serious in cases where C compulsory minimum sentences apply.

[18] In this regard s 51(2) of the Criminal Law Amendment Act 105 of 1997, which is applicable here, requires a court to impose a harsher sentence in the case of second or third and subsequent offenders. The effect on the appellant is that he not only has a less flattering criminal D record, but, if he reoffends, a court would be obliged to treat him as a triple offender if he is again found guilty of robbery, and to apply a minimum sentence of 25 years' imprisonment, unless the circumstances justify a lesser sentence.

[19] Our courts have applied different tests to decide whether duplication E has occurred. In S v Maneli[5] Streicher JA explained:

'One such test is to ask whether two or more acts were done with a single intent and constitute one continuous criminal transaction. Another is to ask whether the evidence necessary to establish one crime involves proving another crime.'

F [20] There is, however, no all-embracing formula. The various tests are mere guidelines — they are not rules of law, nor are they exhaustive. Their application may yield a clear result, but, if not, a court must apply its common sense, wisdom, experience and sense of fairness to make this determination. [6]

G [21] Robbery consists of the theft of property by intentionally using violence or threats of violence to induce submission to its taking. [7] It is thus a crime involving two unlawful acts — taking property and performing a violent act upon a person. [8] Mr Dlamini committed no violent act himself. He took Mrs Burgess's property from her after one of his

Cachalia JA (Farlam JA concurring)

co-robbers threatened the three women at one and the same time with a A ...