S v Mahlatsi

• Jurisdiction: South Africa
• Judge: De Vos J, Lamprecht AJ and Phatudi AJ
• Judgment Date: 26 July 2013
• Citation: 2013 (2) SACR 625 (GNP)
• Docket Number: A 396/2012 [2013] ZAGPPHC 269
• Hearing Date: 26 July 2013
• Counsel: E Tlake for the accused, instructed by Legal Aid, South Africa. S Scheepers for the state.
• Court: North Gauteng High Court, Pretoria

Lamprecht AJ (De Vos J and Phatudi AJ concurring): F

[1] At approximately 21h00 on 15 July 2001 Ms Nompunelelo Nyakale returned home to 12 Adolf Scheil Street, Thaba Tshwane, in her motor vehicle (a green Citi Golf), her child sleeping in the back of the vehicle. When she stopped at the gate and alighted to open it, another vehicle arrived. Appellant [1] (in a military uniform) and another, taller one, G alighted from that vehicle and forced Ms Nyakale at gunpoint to surrender her vehicle and the contents thereof, including her cellular phone. She barely managed to pull her son out of the back seat before appellant and his fellow robbers waiting in the other vehicle then sped off with both cars.

H [2] The very next day, at about 13h15, the vehicle that appellant took from Ms Nyakale was used in another robbery, this time in the Carletonville area. Appellant and Ms Florence Grootboom [2] carefully waited and watched as Ms SA de Beer and Mr KJ Viljoen left their Caltex filling station at Welverdiend near Carletonville on their way to the First National Bank, Carletonville, to deposit the income that they I had generated that day. Appellant and Grootboom then phoned their fellow robbers and informed them of the vehicle and the route it travelled. The fellow robbers in the green Citi Golf belonging to

Lamprecht AJ (De Vos J and Phatudi AJ concurring)

Ms Nyakale, with a blue light on its roof, used their police appearance to A pull over the vehicle that Ms De Beer and Mr Viljoen were travelling in. One of them [3] approached Ms De Beer and, after she refused to alight anywhere but at a police station, put a gun to her head, and forced her and Mr Viljoen to hand over R25 400 in cash, a revolver and a number of other items, including her purse containing a further R2000 in cash, B car keys, a cellular phone and two cheques to the value of approximately R92 000. When all was over he told her to close her eyes, the gun still aimed at her head. She looked away, fearing that at any moment he might pull the trigger, but he walked backwards, they got into the Golf and, eventually, they drove off. It is only then that Ms De Beer could ask for help from other passing vehicles. C

[3] On 18 August 2001 at approximately 19h15 Mr and Mrs De Sousa were travelling home from their shop, Black Ace Cafe in Carletonville. They were with Ms De Ponte (an employee), whom they gave a lift home as usual. They had approximately R20 000 cash in their possession. D When they stopped at Ms De Ponte's house to drop her off at about 19h20, they were approached by a number of gun-wielding men, including appellant. [4] Appellant and his fellow gun-bearing robbers then robbed the occupants of the vehicle, the money, a cellular phone and a 9 mm pistol before driving off with the vehicle, with Mrs De Sousa still in it. After a while they stopped, forced Mrs De Sousa into the boot of E the car and drove a further distance before abandoning the car with her still locked inside the boot. Fortunately, she managed to free herself and summoned help.

[4] For his role in the aforementioned incidents, appellant was convicted F of three counts of robbery with aggravating circumstances [5] and one count of kidnapping (of Mrs De Sousa). [6] On 28 September 2004 he was sentenced to the minimum sentence of 15 years' imprisonment [7] on each of the robbery counts and five years' imprisonment on the count of kidnapping. None of the sentences were ordered to run concurrently — the effective sentence therefore being 50 years' imprisonment.

[5] After an unsuccessful application to the trial court for leave to appeal G his convictions and sentences, appellant successfully petitioned the Supreme Court of Appeal. [8] Leave was granted to appeal only his sentences to the full court of this division. He has, however, remained inside of prison, pending the outcome of his appeal, ever since he was sentenced — he has thus already served almost nine years of his gaol term H

Lamprecht AJ (De Vos J and Phatudi AJ concurring)

A to date. In the heads of argument for the appellant, Adv Henzen-Du Toit [9] also drew our attention to the fact that he had also spent two years and two months in prison awaiting trial before he and his co-accused were eventually convicted and sentenced.

[6] Sentencing, famously, [10] is a matter pre-eminently falling squarely B within the purview of the trial court's discretion, which should not lightly be interfered with. A sentence should only be interfered with on appeal where, (i) an irregularity occurred; (ii) the trial court materially misdirected itself on the question of sentence; or (iii) the sentence could be described as so disturbing that it induced a sense of shock. The mere fact C that any or all the judges sitting on an appeal would have imposed another sentence, be it heavier or more lenient, if he presided on at first instance, is not enough reason for a court of appeal to interfere with the sentence imposed. [11] This much is trite.

[7] On the three counts of robbery with aggravating circumstances the D trial court reportedly had no choice but to impose 15 years' imprisonment per count, simply because the court found that no substantial and compelling circumstances existed justifying the imposition of a lesser sentence than the one called for in terms of s 51(2)(a)(i) of the Criminal Law Amendment Act 105 of 1997 as amended (the Minimum Sentencing Act). E [12] In respect of the kidnapping count, no minimum sentence is prescribed. The presiding judge correctly had regard to existing jurisprudence and guidelines as regards the determination of whether substantial and compelling circumstances justified a deviation from the prescribed minimum sentences, [13] and further considered, as was required, the personal circumstances of the appellant, the seriousness of F the offences of which he was convicted, and the interests of society, before imposing the sentences, effectively resulting in a gaol term of 50 years.

[8] In our opinion, it cannot be argued with any measure of conviction that the trial court misdirected itself in any way, or that the sentences G imposed on each count individually could be regarded as so shockingly heavy that interference is warranted. Robbery, especially where aggravating circumstances are present as in this case, and robbery of motor vehicles appear to have become an industry country-wide, akin to a H disease that has spread and gotten out of hand. This is emphasised by the

Lamprecht AJ (De Vos J and Phatudi AJ concurring)

fact that no fewer than seven accused persons stood trial in this matter, A for gang activities involving 19 counts of robbery, murder, attempted murder, kidnapping and the unlawful possession of firearms and ammunition, that played out during the period September 2000 to August 2001 in the regions of Pretoria, Carletonville and Oberholzer. It appeared that all the accused persons operated in a gang, but, due to lack B of identifying evidence, not all the accused were convicted on all counts. Most of them, however, were convicted on most counts, as I will set out in more detail below. In some instances some of the accused persons pretended to be members of the armed forces and did not hesitate to use military uniforms, blue lights (normally only used by the police) and C firearms to commit their dastardly deeds, and, during this time, two people were killed, one nearly killed and one kidnapped.

[9] Ordinary citizens cannot be blamed for constantly living in fear for their lives, never mind the safety of their possessions, so much so that D they either spend thousands of rands to try and create safe havens to live in and vehicles to travel in; emigrate; take the law into their own hands; or simply cringe at the thought of venturing out onto the streets or even to stay at home, because it would appear that there is nowhere to hide and no way in which one can properly defend oneself. According to E many psychiatrists and psychologists, the psychiatric condition or illness known as post-traumatic stress disorder (PTSD) has become the order of the day, not only as a result of people having served in the armed forces or the police, but also for having fallen victim to robberies and attempted murders, rapes and other rapacious violence that they witness or are F forced to witness. Quite often PTSD leads to sufferers thereof committing crimes themselves, which goes to show how sick the society that we live in has become. I can only imagine what fears must go through someone's mind when a gun is pressed against his head before he is killed, before someone else is killed in front of him, or just knowing that there is a possibility of him or someone else being killed. How must it feel to be G bundled into the boot of one's own car by a bunch of armed thugs, not knowing whether further torture or the ultimate price of death is merely being delayed?

[10] It is therefore not surprising that parliament has decided to call for H consistently heavy sentences (called 'minimum sentences') to be imposed by courts whenever people are convicted of crimes like these. It is also not surprising that courts tend to increase sentences for such crimes and that, sometimes, courts are tempted to make sure that convicted criminals are never again allowed to roam the streets, still being able to commit crimes. One must remember that before the death penalty [14] was I

Lamprecht AJ (De Vos J and Phatudi AJ concurring)

A held to be unconstitutional, [15] robbery with aggravating circumstances was still regarded as a capital crime for which the ultimate penalty could be (and sometimes was) imposed, failing which, life imprisonment or, at least, lengthy periods of imprisonment, in excess of the minimum sentences that are currently called for by law, were often imposed. These B ...