S v Mishack

• Jurisdiction: South Africa
• Judge: Mashile J and L Windell J
• Judgment Date: 15 April 2014
• Docket Number: A471/2013
• Hearing Date: 15 April 2014
• Court: South Gauteng High Court, Johannesburg

Mashile, J:

[1]

The appellant was one of three accused persons he being the Third. All three appellants were charged on 8 November 2003 in the Regional Court for the region of South Gauteng held at Johannesburg with the following:

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Mashile J

1.1

Count 1 : Robbery with Aggravating circumstances in that upon or about 16 February 2003 and at or near Soweto in South Gauteng, they unlawfully and intentionally assaulted Kenneth Mailala and took with force from him R10.00 cash and a wrist watch, his property or property in his lawful possession. A fire-arm was used to threaten the Complainant;

1.2

Count 2: Illegal possession of a firearm in that on or about 16 February 2003 and at or near Soweto in South Gauteng, the accused persons did unlawfully have in their possession a Nonnco 45 automatic pistol, P3 pistol and N275 Nonnco Pistol, without being the holders of licenses issued in terms of the act to possess the arms;

1.3

Count 3: Attempted murder in that on or about 14 February 2003 and at or near Soweto in South Gauteng, they unlawfully and intentionally attempt to kill Thanda Shabalal by shooting her with a firearm;

1.4

Count 4: Robbery with aggravating circumstances in that on or about 14 February 2003 and at or near Soweto in South Gauteng, they unlawfully and intentionally assaulted Thanda Shabalala and did then and there and with force take a Nokia 3210 cell phone and Norneo Pistol, his property or property in his lawful possession. A firearm was used to threaten the

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Mashile J

Complainant.

[2]

The appellants were legally represented throughout the proceedings. They pleaded not guilty and tendered no plea explanation. The Appellants were warned that the provisions of Section 51(2) of the Criminal Law Amendment Act No. 105 of 1997 (the Act) could be invoked for purposes of the imposition of sentence in the event that they are subsequently found guilty.

[3]

On 1 November 2005 all the appellants were found guilty as charged and sentenced to direct imprisonment as follows:

3.1

Count 1: 15 (fifteen) years;

3.2

Count 2: 3 (three) years;

3.3

Count 3: 7 (seven) years;

3.4

Count 4: 15 (fifteen) years; and

3.5

Each appellant was declared unfit to possess a firearm in terms of Section 103(1) and (4) of the Firearm Controls Act No. 60 of 2000.

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Mashile J

[4]

The Appellants applied for leave to appeal against both their conviction and sentence. The Court a quo refused the appellants leave to appeal in respect of both their conviction and sentence. However, on petition to this court they were granted leave to appeal against their sentence only. For that reason, the appeal concerns sentence only.

[5]

The appeal against sentence is premised on three grounds and these are that:

5.1

The sentence of 40 years direct imprisonment is shockingly inappropriate;

5.2

The period that the Appellants spent in jail awaiting trial was not taken into account when they were sentenced;

5.3

While the court a quo had jurisdiction to increase the minimum sentence up to 5 years in excess of the minimum, it omitted to furnish reasons why it felt it was necessary to exceed the prescribed sentence in respect of the attempted murder.

[6]

S v PB, 2013 (2) SACR 533 (SCA) at 539 per Bosielo JA sets out the approach that an appeal court must adopt when considering whether or not the trial court imposed the correct sentence in instances where the Criminal Law Amendment Act :

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Mashile J

"[20] What then is the correct approach by a court on appeal against a sentence imposed in terms of the Act? Can...