S v Mqabhi

• Jurisdiction: South Africa
• Citation: 2015 (1) SACR 508 (GJ)

S v Mqabhi
2015 (1) SACR 508 (GJ)

2015 (1) SACR p508

Citation	2015 (1) SACR 508 (GJ)
Case No	A 424/2012
Court	Gauteng Local Division, Johannesburg
Judge	Spilg J and Vally J
Heard	September 17, 2014
Judgment	September 17, 2014
Counsel	K Cosyn for the appellant.; RT Mareume for the state.

Flynote : Sleutelwoorde

B Sentence — Prescribed sentence — Minimum sentences — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — 'Substantial and compelling circumstances' — Period spent in custody awaiting trial — A factor in determining presence of substantial and compelling circumstances — Factor not to be isolated but to be weighed with other circumstances — No mechanical formula applicable.

C Sentence — Prescribed sentence — Minimum sentences — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — When period of imprisonment commences — Semble: Inability to determine that such sentence should commence on date earlier than when sentence was D handed down creates hardship for accused who has been detained for lengthy period, was sentenced to life imprisonment and, in terms of s 73(6)(b)(iv) of the Correctional Services Act 111 of 1998, only became eligible for parole after serving minimum sentence of 25 years — This inability could also affect constitutionally safeguarded rights.

Headnote : Kopnota

E The appellant was convicted in a regional magistrates' court of robbery with aggravating circumstances and was sentenced to 15 years' imprisonment. Despite the fact that the appellant had been held in custody for two years prior to sentencing, the magistrate held that, on an overall assessment, there were no substantial and compelling circumstances that justified a sentence F less than the 15 year minimum in terms of s 51 and part II of sch 2 to the Criminal Law Amendment Act 105 of 1997 (the CLAA). On appeal, counsel for the appellant argued that the magistrate had misdirected himself in finding that there were no substantial and compelling circumstances that warranted a lesser sentence than the 15 year minimum, and, in addition, that the sentence induced a sense of shock. The court requested argument G on the treatment of a lengthy period spent in custody awaiting trial. After considering argument the court formulated the following guidelines: (a) Pre-sentence detention was a factor to be taken into account when considering the presence or absence of substantial and compelling circumstances for the purposes of the CLAA. (b) Such period of detention was not to be isolated as a substantial and compelling circumstance but had to be H weighed as a mitigating factor, together with all the other mitigating and aggravating factors, in determining whether the effective minimum period of imprisonment to be imposed was justified in the sense of it being proportionate to the crime committed. If it were not then the want of proportionality constituted the substantial and compelling circumstances required under s 51(3). (c) The reason for the prolonged period of pre-sentence detention was a factor. If the offender were responsible for I unnecessary delays then this might redound to his detriment. (d) There was no mechanical formula or rule of thumb to determine the period by which a sentence was to be reduced. The specific circumstances of the offender, which might include the conditions of his detention, were to be assessed in each case when determining the extent to which the proposed sentence should be reduced. (e) Where only one serious offence was committed, and J assuming that the offender had not been responsible for unduly delaying the

2015 (1) SACR p509

trial, then a court might more readily reduce the sentence by the actual A period in detention prior to sentencing. (Paragraph [38] at 519c–h.)

The court also held that the following legal principles, interests and values had a bearing on the weight to be accorded to a lengthy period of pre-sentence incarceration where the offender had not been deliberately delaying the trial: the store to be placed on the right to freedom under s 12(1) of the Constitution read with s 35(3)(d), which accorded the right to every person B to have their trial begin and conclude without unreasonable delay; and the equality provisions of s 9 of the Constitution which provided for equality before the law. (Paragraph [40] at 520e–g.)

Semble: The inability to determine that a sentence under the minimum sentence provisions should commence on a date earlier than when the sentence was handed down created hardship for an accused who, after being detained in C custody for two or three years, was sentenced to life imprisonment and who, in terms of s 73(6)(b)(iv) of the Correctional Services Act 111 of 1998, only became eligible for parole after serving a minimum sentence of 25 years. This inability could also affect constitutionally safeguarded rights. (Paragraph [59] at 525c–d.)

Held, that, in the present case the two year period of pre-sentence incarceration D had to be deducted from the 15 year minimum, and the sentence of the court a quo had to be changed to one of 13 years' imprisonment, commencing on the date the accused was sentenced by the trial court. (Paragraph [60] at 525e.)

Cases cited

S v Bhengu 2011 (1) SACR 224 (KZP): referred to E

S v Brophy and Another 2007 (2) SACR 56 (W): considered

S v Dlamini 2012 (2) SACR 1 (SCA): applied

S v Dlamini 2014 (1) SACR 530 (GP): considered F

S v Hawthorne en 'n Ander 1980 (1) SA 521 (A): dicta at 525E criticised

S v Kruger 2012 (1) SACR 369 (SCA): applied

S v Mahlangu and Others 2012 (2) SACR 373 (GSJ): dicta at 376c – d approved

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220; [2001] ZASCA 30): referred to

S v Mathebula and Another 2012 (1) SACR 374 (SCA): dicta in paras [10] G and [11] applied

S v Mbatha 2009 (2) SACR 623 (KZP): referred to

S v Mgedezi and Others 1989 (1) SA 687 (A): dicta at 716J – 717A applied

S v Rabie 1975 (4) SA 855 (A): referred to

S v Radebe and Another 2013 (2) SACR 165 (SCA) ([2013] ZASCA 31): applied H

S v Stephen and Another 1994 (2) SACR 163 (W): considered

S v Vilakazi 2009 (1) SACR 552 (SCA) (2012 (6) SA 353; [2008] 4 All SA 396; [2008] ZASCA 87): applied

S v Vilikazi and Others 2000 (1) SACR 140 (W): considered

S v Zinn 1969 (2) SA 537 (A): referred to.

Legislation cited

Statutes I

The Constitution of the Republic of South Africa Act 108 of 1996, ss 9, 12(1) and 35(3)(d): see Juta's Statutes of South Africa 2013/14 vol 5 at 1-27 and 1-30

The Correctional Services Act 111 of 1998, s 73(6)(b)(iv): see Juta's Statutes of South Africa 2013/14 vol 1 at 3-121 J

2015 (1) SACR p510

A The Criminal Law Amendment Act 105 of 1997, s 51 and part II of sch 2: see Juta's Statutes of South Africa 2013/14 vol 1 at 2-534 and 2-542.

Case Information

K Cosyn for the appellant.

RT Mareume for the state.

B An appeal against a sentence imposed in a regional magistrates' court. The facts appear from the reasons for judgment.

Order

(a)

The appeal on sentence is upheld.

(b)

The court a quo's order is set aside and replaced with the following C order in accordance with the provisions of s 279 of the Criminal Procedure Act 51 of 1977:

The appellant is sentenced to 13 years' imprisonment in respect of count 1, such sentence to commence from 29 July 2011, being the date he was sentenced by the trial court.

Judgment

Spilg J (Vally J concurring): D

Introduction

[1] The appellant faced two charges. The first was for robbery with E aggravating circumstances, read with the minimum sentence provisions of s 51 and part II of sch 2 to the Criminal Law Amendment Act 105 of 1997 (CLAA). He was found guilty and, as a first offender, was sentenced to the minimum prescribed period of 15 years' imprisonment commencing from the date sentence was delivered. The appellant was acquitted on the second charge of attempted murder.

F [2] The court a quo granted leave to appeal in respect of sentence only.

The issues

[3] Ms Cosyn on behalf of the appellant argued that the learned regional G court magistrate misdirected himself in that he should have found substantial and compelling circumstances present under s 51(3)(a) [1] of the CLAA, warranting the imposition of a sentence less than the prescribed minimum. It was also submitted that the sentence induced a sense of shock and was inappropriate.

H [4] It is evident from the record that the magistrate had considered the nature of the crime, the personal circumstances of the appellant and the interests of society, including the impact of the crime on the victim.

[5] The court also referred to the fact that the appellant had been held in I custody for a period of two years prior to sentencing, but on an overall

2015 (1) SACR p511

Spilg J (Vally J concurring)

assessment concluded that there were no substantial and compelling A circumstances justifying a custodial sentence less than the 15 year minimum.

[6] Counsel were requested to deal with how courts treat a lengthy period in custody prior to sentencing, where the minimum sentencing provisions of s 51 of the CLAA apply. The period in custody prior to B sentencing will also be referred to as 'pre-sentence detention' (see S v Radebe and Another 2013 (2) SACR 165 (SCA) ([2013] ZASCA 31) in para 13).

In the heads of argument subsequently filed, Ms Cosyn relied on a number of cases, including S v Vilakazi 2009 (1) SACR 552 (SCA) C (2012 (6) SA 353; [2008] 4 All SA 396; [2008] ZASCA 87) and S v Kruger 2012 (1) SACR 369 (SCA), to support the argument that the two year period in custody should be deducted from the 15 years imposed and the sentence antedated to 29 July 2011, being the date when the magistrate handed down the sentence. It was submitted that a lengthy period in custody...