S v Rametsi

• Jurisdiction: South Africa
• Judge: Maumela J and Ranchod J
• Judgment Date: 12 October 2020
• Court: Gauteng High Court, Pretoria
• Hearing Date: 12 October 2020
• Docket Number: A 87/2019

Maumela J:

INTRODUCTION:

1.

The appellant appeared before the Regional Court for the Regional Division of Gauteng, held at Pretoria. He was

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arraigned on the following charges:

Count 1.	Assault with the intent to commit housebreaking;
Count 2.	Housebreaking with the intent to rob and robbery with aggravating circumstances read with section 1 of the Criminal Procedure Act, Act 51 of 1977;
Count 3.	Count 3: Kidnapping;
Count 4.	Unlawful possession of a firearm in contravention of section 3 of the Firearms Control Act, Act 60 of 2000;
Count 5.	Contravention of section 90 of the Firearms Control Act, Act 60 of 2000.

2.

The appellant pleaded not guilty to all the charges. The state called witnesses. The Appellant testified in his own defence. On the 16th of August 2012, the Appellant was convicted on counts 2 and 3. The minimum sentence legislation in terms of section 51(2) of Act 105 of 1997 became applicable. Appellant was then sentenced as follows:

On Count 2;	he was sentenced to undergo 12 year's imprisonment.
On Count 3;	he was sentenced to undergo 3 year's imprisonment.

The court a quo ordered the sentence on count 3 to run concurrently with the sentence on count 2. As such, the effective sentence imposed became 12 year's imprisonment.

CONDONATION.

3.

The appellant made the point a Covid-19 pandemic subsisted world-wide. As a result, the President of the Republic of South Africa announced a state of emergency and a concomitant state of lockdown which applied countrywide. His counsel had to employ make-shift arrangements and to set up an office at home. This resulted in difficulties where it regards consultation. As a result, his counsel became unable to consult and to obtain proper instructions. No opposition to condonation was made and as such, condonation is hereby granted. The court has to determine the appropriateness or otherwise of the sentence imposed upon the appellant. On the 24th of October 2018, the

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Regional Court Magistrate granted the appellant leave to appeal against sentence only. The court is to determine the success or otherwise of the appeal brought by the appellant against sentence.

EVIDENCE.

4.

The complainant in this case testified that on the 3rd of August 2006, he was robbed by the appellant and 2 accomplices. He said that he was robbed of his firearm and ammunition, a jacket, shoes, a wristwatch, keys and his wallet. He stated that he was accosted outside his house when he returned from work whereupon he was forced into his home at knife point. He said that at that time, his domestic helper, Sara, was cleaning a flat that is also on the premises.

5.

The complainant testified that his assailants were armed with a knife and a screwdriver. He said that he was assaulted during the robbery and that his attackers tied him up whilst they removed the firearm and ammunition from the safe and when they took the other items mentioned above out of the house. He said that he remained tied up until a Police Officer eventually freed him.

6.

It is trite that in considering the sentence to be imposed, Courts have to take into consideration what has come to be known as the triad of sentencing . In the case of S v Zinn [1] the court stated that in imposing the sentence, the court has to take into consideration the crime committed, the interests of the accused and the interest of the community.

7.

It was submitted on behalf of the appellant that he is single. He dropped out of high school and after the death of his mother, he became involved with friends that had a bad influence on him. The court a quo also considered the period the appellant spent in custody before sentence and it found compelling and

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substantial circumstances to be present. For that reason, in the consideration of sentence against the appellant, the court a quo did not apply the provisions of the prescribed minimum sentence legislation. For that reason, the effective term of imprisonment imposed upon the appellant became 12 years' imprisonment.

8.

It is trite law that imposition of sentence is primarily a factor for the discretion of the trial court and that the court of appeal may only interfere with the sentence imposed, where it is disturbingly inappropriate or totally out of proportion to the gravity or magnitude of the offence. The appeal court may also interfere where the sentence imposed is sufficiently disparate or is vitiated by misdirection of a nature which shows that the trial court did not exercise its discretion reasonably.

9.

In the case of S v Salzvedel and Others [2] the court stated the following: "An Appeal court is entitled to interfere with a sentence imposed by a trial court in a case where the sentence is "disturbingly inappropriate", or totally out of proportion to the gravity or magnitude of the offence, or sufficiently disparate, or vitiated by misdirection of a nature which shows that the trial court did not exercise its discretion reasonably." [3] the court held further as follows: "[t]he over-emphasis of the effect of the appellant's...