NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, GRAHAMSTOWN)
In the matter between:
Case No: CA & R 48/2010
MZUKISI BLOUW
Appellant
And
THE STATE
Respondent
Coram:
Chetty and Pillay JJ
Date Heard:
17 May 2011
Date Delivered:
27 May 2011
Summary:
Sentence
Substantial
–
Appeal
and
against
compelling
–
minimum
sentence
circumstances
–
–
What
constitutes – Leave to appeal applicable test restated –
Appeal dismissed
______________________________________________________________
JUDGMENT
______________________________________________________________
Chetty, J
[1]
On the 23rd of February 2009, Mrs Ada Scarnera was at her business
premises in Cape Road, Port Elizabeth when she was approached by the
appellant and his female companion enquiring whether she had rooms to let.
Although the front door was open, access was regulated by a locked security
gate. She responded that there were none at those premises but at a
guesthouse which she owned, viz the Villa Borghese. When they became
obstreperous, Mrs Scarnera, rather foolhardy, unlocked the gate to speak to
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the appellant and his companion. The appellant and approximately four or five
others charged through the door and demanded money ordering the
complainant to open the safe. The appellant, who was armed with a firearm,
struck the complainant with the firearm causing her to bleed. Petrified, the
complainant led her intruders to her upstairs bedroom, opened a wardrobe
and then the safe hidden therein. One of the intruders touched the inside of
the wardrobe to facilitate access to the safe and emptied its contents. The
complainant and her daughter were then tied up and left in a room whilst the
robbers made good their escape.
[2]
Sometime thereafter the complainant’s daughter fortuitously managed
to extricate herself from her bondage. In order to do so she had to roll down
the staircase to the ground floor and manoeuvre her body to the kitchen to
find a knife in order to free herself. Impervious to the pain she managed to
loosen her bonds and summoned the police.
[3]
The appellant was not a stranger to Mrs Scarnera. He had visited her
premises a week prior to the incident under the pretext that he was desirous
of engaging her catering services for his wedding and requested her to
provide him with a quotation. This visit was, no doubt, a ruse, its true purpose
a reconnaissance mission.
[4]
Constable Nozibonga Nkani (Nkani), a member of the South African
Police Services attached to the forensic unit, as a fingerprint investigator, was
summoned to the complainant’s home by the team which had responded to
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the distress call from the complainant’s daughter. On her arrival the
complainant pointed to the safe in the wardrobe and informed Nkani that one
of the intruders had handled the wardrobe and safe. Forensic examination
revealed a set of fingerprints on the inside of the wardrobe. These were duly
lifted and subsequently compared to a set of the appellant’s prints. Analysis
proved that the prints lifted from the inside of the complainant’s wardrobe
were those of the appellant.
[5]
The appellant of course denied all complicity in the robbery and
moreover disputed Mrs Scarnera’s evidence that he had visited her premises
as she alleged. Confronted with the forensic evidence, he proffered the
lamentable explanation that the police had perjured themselves to falsely
implicate him in the robbery. On a conspectus of the evidence the trial court,
in my view, correctly concluded that the state had discharged the burden of
proof resting upon it beyond a reasonable doubt and convicted the appellant
as charged. On appeal before us, his counsel, Mr van der Spuy, was
constrained to concede that the trial court’s finding was unassailable.
[6]
The conviction, robbery with aggravating circumstances, attracted a
mandatory sentence of fifteen years imprisonment in terms of the minimum
sentencing legislation. Seemingly oblivious to the veritable plethora of case
law on the ambit of the enquiry into the question of substantial and compelling
circumstances, the trial magistrate found that the period the appellant had
spent awaiting trial viz sixteen months, amounted to a substantial and
compelling circumstance which justified the imposition of a lesser sentence
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than that ordained by the legislature. The magistrate needs to be reminded,
as Marais JA, warned in S v Malgas that:-
“[20] It would be an impossible task to attempt to catalogue
exhaustively either those circumstances or combinations of
circumstances which could rank as substantial and compelling or
those which could not. The best one can do is to acknowledge
that one is obliged to keep in the forefront of one's mind that the
specified sentence has been prescribed by law as the sentence
which must be regarded as ordinarily appropriate and that
personal distaste for such legislative generalisation cannot justify
an indulgent approach to the characterisation of circumstances
as substantial and compelling. When justifying a departure a
court is to guard against lapses, conscious or unconscious, into
sophistry or spurious rationalisations or the drawing of
distinctions so subtle that they can hardly be seen to exist.”
[7]
Whilst it is a salutary practice, in determining an appropriate sentence,
to take cognisance of the period an accused person has spent awaiting trial
and to make due allowance therefor in assessing an appropriate sentence, it
all depends on the circumstances and does not follow as a matter of course.
Any number of factors could have influenced the time period spent awaiting
trial and in the absence of a proper enquiry, it is a neutral factor and ought not
to be accorded undue weight.
There is, in any event, no proper basis
warranting appellate interference in the sentence imposed and the appeal
must accordingly fail. There is however a further matter which invites
comment.
[8]
An applicant who seeks leave to appeal, either in relation to the
conviction or sentence imposed is required to satisfy the court that there are
reasonable prospects of success in the appeal. This is not an exercise in
frivolity. It requires serious consideration. Had the magistrate diligently applied
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himself to the task at hand by applying established legal principles, the appeal
would in all probability not have burdened the court roll. The magistrate
granted leave on the spurious ground that:-
“COURT:
With regard to the conviction, I have no doubt in my
mind that there was no mistake on my part. The same applies to
sentence, but there are contentious issues in that case knowing
that there are as many opinions as there are men. I will GRANT
the leave to appeal to satisfy the accused.”
[9]
Granting leave in order to satisfy the whims of an accused person is an
entirely invalid consideration and it is a matter of deep concern that a regional
magistrate appears to be completely oblivious of the test applicable to
applications for leave to appeal. The test is and remains trite – in applications
for leave to appeal, whenever a trial court comes to a well considered
conclusion that there are grounds on which a Court of Appeal could draw a
different inference from the facts than that which he or she has done and
there is therefore a reasonable possibility of success for the applicant, leave
should be granted. The registrar of this court is accordingly directed to
forward a copy of this judgment to the President of the regional court in Port
Elizabeth for the trial magistrate’s edification.
__________________
D. CHETTY
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JUDGE OF THE HIGH COURT
Pillay, J
I agree.
_____________________
R. PILLAY
JUDGE OF THE HIGH COURT
Obo the Appellant:
Mr van der Spuy
Instructed by:
Legal Aid Centre, North End, Port Elizabeth
Obo the Respondent:
Adv Obermeyer
Instructed:
Instructed by the National Director of Public
Prosecutions, High Street, Grahamstown, Tel:
046-6032000
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