IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION)
In the matter between
Case No: CA & R
244/07
RONALDO MAGIDIGIDI
And
THE STATE
Date Heard:
21 May 2008
Date Delivered:
Summary:
Appellant
Respondent
23 May 2008
Appeal
against
sentence
–
minimum
sentencing provisions neither referred to in
charge sheet nor during trial – application of
Act
–
whether
sentence
in
excess
of
prescribed one competent.
_______________________________________________________________
JUDGMENT
_______________________________________________________________
CHETTY, J
[1]
The appellant was arraigned for trial in the regional court, Port
Elizabeth
on
a
charge
of
robbery
with
aggravating
circumstances as defined in s 1 of the Criminal Procedure
Act 51 of 1977 and two further charges under the Firearms
Control Act 60 of 2000. He was acquitted on the latter
charges but convicted of robbery simpliciter and sentenced to
imprisonment for seven years. He now appeals, with leave
granted by this court against the sentence.
[2]
2
Before considering the merits of the appeal it is necessary to
restate
that
the
offence
of
robbery
with
aggravating
circumstances is listed in Part II of Schedule 2 to the Criminal
Law Amendment Act 105 of 1997 (the Act), a conviction of
which
attracts
a
mandatory
sentence
of
15
years
imprisonment (s 51 (1) (b) (i)) absent a finding of substantial
and compelling circumstances as envisaged by s 51 (3).
Neither the charge sheet, the transcript of the proceedings
(prior to the judgment on the application for leave to appeal)
nor the judgments, both on the merits and sentence contain
any reference to the minimum sentence provisions in s 51 of
the Act. Such omission is however in the present context of no
real moment. Whilst it is desirable that statutory sentencing
provisions be reflected in a charge sheet there is no
suggestion that its omission rendered the appellant’s trial
unfair. At no stage during the proceedings did the state seek
to invoke the machinery of the Act. It was only during his
judgment on the application for leave to appeal that the
magistrate realised that the Act was of application but by then
the trial had been concluded and the appellant sentenced. The
latter had been convicted of robbery simpliciter and although
such offence fell within the purview of Part IV of Schedule 2
and for which a minimum sentence of 5 years was prescribed
(s 51 (2) (c) (i)), the trial court sentenced the appellant to
seven years imprisonment.
[3]
3
I
have
considered
the
implications
of
the
aforestated
omissions in the charge sheet by reason of the submission by
counsel for the state that the magistrate had misdirected
himself on the facts by finding that the state had failed to
prove that the robbery had not been committed with
aggravating circumstances. It is unnecessary to consider this
issue. There is no appeal by the state against the magistrate’s
finding hereanent and the conviction stands. In opposing the
appeal for a reduction of sentence counsel for the state
submitted that it is implicit from the judgment that in
imposing a sentence of seven years imprisonment, the
magistrate in effect found that there were substantial and
compelling circumstances which warranted a departure from
the prescribed sentence of fifteen years imprisonment (s 51
(2) (a) (i)). Consequently the appellant could scarcely be
heard to complain. In the alternative, counsel submitted that
the matter be remitted to the trial court for it to consider
afresh
the
question
of
substantial
and
compelling
circumstances.
[4]
The difficulty I have with the submission is twofold – firstly, by
submitting that the imposition of a lesser sentence than that
prescribed by s 51 (2) (a) (i) impliedly suggests that the
magistrate
in
effect
made
a
finding
that
there
were
4
substantial
and
compelling
circumstances
would
be
speculative in the extreme. The judgments show that the
magistrate was oblivious to the minimum sentence provisions
and to attribute such knowledge to him by virtue of the
sentence ultimately imposed is unwarranted. Secondly, the
appellant was not, as adumbrated above, convicted of an
offence listed in Part II of Schedule 2. The appeal must be
determined as if Act 105 of 1997 was not of application.
[5]
The thrust of the argument advanced on behalf of the
appellant is that the latter’s personal circumstances were
accorded
insufficient
weight
particularly
when
adjudged
against the fact that a minimal amount of money was robbed
from the complainant who, save for having been tripped,
suffered no serious injury. The evidence adduced however
establishes that this was a brazen daylight robbery committed
by the appellant and his cohort who was armed with a firearm.
They clearly acted with a common purpose, the appellant
tripping the complainant, his partner in crime pointing the
firearm at the hapless victim thus affording the appellant the
means and opportunity to rob the complainant of his
possessions. However meagre the spoils of their endeavours
were, this factor does not in my view amount to a mitigating
circumstance.
The
fact
remains
the
complainant
was
unceremoniously flattened, throttled and robbed. The offence
5
was serious and one for which direct imprisonment, given the
prevalence
of
such
offences,
pre-eminently
called
for.
Notwithstanding the appellant’s age and the fact that he is a
first offender I an unable to conclude that the magistrate
misdirected himself or that the sentence imposed induces a
sense
of
shock.
There
is
no
proper
basis
warranting
interference and in the result the appeal against sentence is
dismissed.
_________________________
D. CHETTY
JUDGE OF THE HIGH COURT
Roberson, AJ
I agree.
________________________
J.M ROBERSON
ACTING JUDGE OF THE HIGH COURT
Obo the Appellant:
Obo the Respondent: J.E Van Heerden
M.G McCullum