S v Zwane

• Jurisdiction: South Africa
• Judge: I Opperman AJ and B Mashile J
• Judgment Date: 17 April 2014
• Docket Number: A185/2013
• Hearing Date: 27 March 2014
• Court: South Gauteng High Court, Johannesburg

Opperman AJ:

INTRODUCTION

[1]

The appellant was charged in the Regional Court, held at Johannesburg with robbery with aggravating circumstances as intended in terms of section 1 of Act 51 of 1977 ("the Criminal

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Procedure Act"), read with the provisions of section 51(2) of the Criminal Law Amendment Act, 105 of 1997 ("the Act").

[2]

The appellant pleaded not guilty and tendered no plea explanation.

[3]

On 21 June 2012 the appellant was convicted as charged and was sentenced to 15 years imprisonment and declared unfit to possess a firearm in terms of section 103(1) and 4 of Act 60 of 2000.

[4]

On 22 January 2013, the appellant applied for leave to appeal against both his conviction and sentence. The Court a quo granted the appellant leave to appeal in respect of his sentence only.

[5]

The appellant now appeals against sentence.

THE OFFENCE

[6]

The appellant was convicted of what is colloquially referred to as "motor hijacking". On 31 March 2010 the complainant testified that he had been travelling with his cousin and his cousin's child in a Volkswagen Golf motor vehicle. He had stopped at a particular house. His cousin had exited the vehicle and he and his cousin's child, were waiting inside the motor vehicle for the cousin's return.

[7]

He heard a knock on his window and was ordered to get out. The assailant pointed a firearm at him. He was told to lie on the ground. Another person came, got into the motor vehicle and tried to reverse the motor vehicle. They struggled to get the motor vehicle going and accordingly ordered the complainant to get into the back seat. They still couldn't get the vehicle going and eventually instructed the complainant to drive the motor vehicle. After some distance, the complainant was dropped off on the side of the road. Shortly

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thereafter the appellant was apprehended due to excellent policing skills exhibited by constables Thumelo Hlohle and Matsoso Moloi.

PREVIOUS CONVICTIONS

[8]

On 20 July 1993 the appellant was convicted of theft and given three cuts.

[9]

The appellant also has a previous conviction for rape and several charges of possession of firearms and ammunition for which he was sentenced to 15 years imprisonment on 4 July 2000. On 15 August 2008 he was released on parole to be under supervision until 3 January 2017. Thus, at the time of the commission of the offence under discussion, he was still under parole supervision.

[10]

The Court a quo dealt with the appellant as a first offender, this despite the fact that he was still under parole supervision.

APPROACH BY A COURT OF APPEAL AGAINST THE SENTENCE IMPOSED IN TERMS OF THE ACT

[11]

In S v PB, 2013 (2) SACR 533 (SCA) at 539 Bosielo JA gave direction in respect of the correct approach to be adopted by an appeal court in respect of sentencing imposed by a trial court in terms of the Act. In paragraph 20 he states:

"[20] What then is the correct approach by a court on appeal against a...