S v Mokela

• Jurisdiction: South Africa
• Judge: Mthiyane JA, Maya JA and Bosielo JA
• Judgment Date: 29 September 2011
• Citation: 2012 (1) SACR 431 (SCA)
• Docket Number: 135/2011 [2011] ZASCA 166
• Hearing Date: 05 September 2011
• Counsel: JH van Rooyen (attorney) for the appellant, instructed by Legal Aid. A Coetzee SC for the state.
• Court: Supreme Court of Appeal

Bosielo JA (Mthiyane JA and Maya JA concurring): A

[1] The appellant was convicted, on his pleas of guilty, of robbery with aggravating circumstances (count 1) and attempted murder (count 2) in the regional court, Pretoria North. He was sentenced to a term of imprisonment of 25 years in respect of count 1, in terms of s 51(2)(a)(ii) B of the Criminal Law Amendment Act 105 of 1997 (as amended) (the Act), and to imprisonment of five years in respect of count 2. The regional magistrate ordered that the sentence imposed in respect of count 2 should run concurrently with the sentence imposed in respect of count 1.

C [2] The appellant appealed against both his conviction and sentence to the South Gauteng High Court, Johannesburg. The appeal against the conviction and sentence in respect of count 2 failed. However, the appeal against the sentence of 25 years in respect of count 1 succeeded, to the extent that the sentence was set aside and replaced with a sentence of D 15 years' imprisonment. The order that the sentences in respect of both counts should run concurrently was set aside by the court below. The effective sentence for the appellant is a term of imprisonment of 20 years. The appellant is appealing to this court against his sentence with leave of the court below.

E [3] As the appeal is against the sentence, only those facts which are germane to the determination of an appropriate sentence for the appellant deserve to be briefly recounted. According to his plea explanation, the appellant, accompanied by his friend, went to one Ms Beetge's house to commit theft, where they confronted her. In order to subdue her, the appellant throttled her and caused her to fall to the F ground, and throttled her whilst sprawled on the ground. She was then stabbed in her stomach with a knife by the appellant's friend.

[4] On appeal to the court below the appeal succeeded partly, in that the appeal against conviction in respect of both counts was dismissed. G However, concerning the sentence, the court below found that the regional magistrate misdirected himself on sentencing by treating count 1 as falling within the ambit of s 51(2)(a)(ii) of the Act, by virtue of the fact that the appellant had a previous conviction of robbery, and thereby treating him as a second offender. I agree.

H [5] The relevant part of s 51(2)(a) of the Act provides:

'51(2) Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person who has been convicted of an offence referred to in —

(a)

Part II of Schedule 2, in the case of —

(i)

I a first offender, to imprisonment for a period not less than 15 years;

(ii)

a second offender of any such offence, to imprisonment for a period not less than 20 years; . . . .'

[6] It is a clear requirement of s 51(2)(a)(ii) that, for the appellant to attract a minimum sentence of imprisonment of not less than 20 years, J the state had to prove that he is a second offender of robbery with

Bosielo JA (Mthiyane JA and Maya JA concurring)

aggravating circumstances. This is the jurisdictional requirement necessary A to trigger s 51(2)(a)(ii). All that the state proved in this case is that the appellant had previous convictions, amongst others, for rape, robbery, theft, assault and escaping from lawful...