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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
REPORTABLE
Case No: A420/14
In the matter between:
MOEGAMAT KASHIEF HENDRICKS
Appellant
Versus
THE STATE
Respondent
JUDGMENT 18 FEBRUARY 2015
______________________________________________________________________
GAMBLE, J:
INTRODUCTION
[1]
The appellant was one of four accused who appeared before Thring J in early 2001
on charges of robbery, kidnapping, attempted murder and the unlawful possession of a
firearm and ammunition. He was convicted on all counts and sentenced to an effective 44
years imprisonment on 5 March 2001. The appellant appeals now against sentence with
the leave of the Judge President having been granted on 31 August 2013, Thring J having
retired from active service in 2010.
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[2]
On appeal before us the appellant was represented by Ms Kuun of Legal Aid South
Africa and the State by Ms Galloway, who was the prosecutor in the trial. We are indebted
to the legal representatives for their useful submissions in this matter.
THE FACTS RELEVANT TO THE CRIME
[3]
The evidence before the Court a quo related to an event which unfolded in the Cape
Peninsula on 3 July 1998 .The complainant, an airline pilot, was on his way home from
Cape Town International Airport in the early hours of the morning when he decided to stop
at an ATM machine at a shopping centre in Main Road Rondebosch. As he was about to
climb into his Hyundai sedan, the complainant was accosted by two men, the appellant and
a person who was later charged as accused number one before Thring J: I shall therefore
refer to him as such.
[4]
The complainant was forced into his car at gunpoint and made to sit in the
passenger seat. Accused number one drove the car and the appellant sat behind the
complainant. Before they set off the appellant fired a single shot from behind the
complainant, a shot which grazed his left ear and left a permanent scar. The complainant
was then driven around the Cape Flats by accused number one and the appellant who
repeatedly taunted the complainant by threatening to kill him, and then assuring him that he
would not die. When the complainant pleaded with the men for his life, telling them that
they could have everything that they wanted, their cynical response was to turn up the
volume on the car radio and to bombard the complainant with loud music.
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[5]
After holding the complainant hostage in his vehicle for about an hour, the robbers
stopped near a field in Mitchells Plain and ordered the complainant to lie on the ground,
face – down and with his arms stretched out in front of him in an act of apparent
submission. The appellant then fired a shot in the direction of the complainant which struck
him on the left rear side of the head. Miraculously, the shot was not fatal and the
complainant managed to stumble to a nearby house where the alarm was raised.
[6]
The complainant was taken to hospital where he was admitted to emergency surgery
and, later, a further operation. The Court a quo heard the evidence of a Neuro Surgeon
who operated on the complainant, and who testified that the complainant was very lucky to
have survived the shooting given that the bullet remained lodged in his skull.
[7]
The consequences for the complainant were catastrophic. He was no longer able to
pursue his chosen career as a pilot, he now suffers from epilepsy and cannot drive a motor
vehicle. In addition, the complainant testified that he did not feel safe living in South Africa
and had relocated to the United Kingdom, where he now works in sales.
THE SENTENCES IMPOSED
[8]
Thring J viewed the matter in a very serious light and imposed the following
sentences on the appellant.
Count 1:
Robbery with aggravating circumstances
15 years imprisonment
Count 2:
Kidnapping
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10 years imprisonment
Count 3:
Attempted murder
25 years imprisonment
Counts 4 & 5 Unlawful possession of a firearm and ammunition
4 years imprisonment
The cumulative sentence was accordingly 54 years imprisonment. However, in an attempt
to temper the effect thereof, the Court a quo ordered the sentences on counts 1 and 2 to
run concurrently, thereby reducing the effective sentence to 44 years imprisonment.
[9]
The State had urged the Court a quo to impose a sentence of life imprisonment on,
inter alia, the appellant. This submission was made, not because any of the offences
attracted that sentence under the minimum sentencing legislation imposed under Act 105
of 1997, but because it was said to be the only appropriate sentence for the crimes
committed, due regard being had to the appellant’s previous convictions, and the absence
of neither remorse nor any mitigating circumstances. Thring J observed that he had
seriously considered the State’s request but had decided against life imprisonment,
because he said that the crimes of which the appellant had been committed were not of the
most severe category, and therefore, that the ultimate sentence known in our law was not
warranted.
[10]
Thring J was concerned about the fact that the appellant and his co- perpetrators
were all members of a local gang known as “The Mongrels”. They had demonstrated
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through their collective action and commitment to gang allegiance that they were ruthless
criminals who did not fear the law. Accordingly, consideration was also given to declaring
the appellant an habitual criminal under section 286 of the Criminal Procedure Act, 51 of
1977 (“the CPA “ ), but since the State had not urged this upon the Court a quo it was not
taken further.
[11]
The Court a quo was at pains to stress the importance of protecting innocent
members of society against such criminals and decided that the longest possible terms of
imprisonment which could reasonably be imposed, should indeed be imposed.
In
so
doing Thring J decided to make a “sterk aanbeveling”1 to the prison authorities that the
appellant and his cohorts (i.e. accused no 1 and 2) not be considered eligible for parole
until such time that they had each completed a specified period (which was to be the
greater part) of the sentences imposed.
[12]
The sentence on count 1 attracted a minimum sentence of 15 years imprisonment in
terms of section 51(2)(a)(i) of Act 105 of 1997.Thring J found that there were no substantial
and compelling circumstances present and the minimum sentence was therefore imposed.
[13]
Save for count 1, none of the other charges attracted minimum sentences under Act
111 of 1997. The Court a quo was therefore not fettered in any manner in passing sentence
on counts 2, 3, 4 and 5. In an attempt to ensure that the appellant was incarcerated for a
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“A serious recommendation”
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period of time which he thought appropriate before being considered for release on parole,
Thring J, made the following remark in respect of accused no 3:
“Ook in die geval van beskuldigde 3 maak die Hof n sterk aanbeveling aan die
Kommasaris van Korrektiewe Dienste en die ander betrokke owerhede
dat
beskuldigde 3 nie vir vroeër vrylating op parool of andersins in oorweging moet kom
voordat hy ten minste 25 jaar van sy vonisse uitgedien het nie.”
The Court a quo made a similar remark in respect of accused no’s 1 and 2 and ordered a
copy of its judgment on sentence to be placed before the Commissioner for Correctional
Services in order that the relevant authorities charged with consideration of the appellant’s
release on parole, should have regard thereto in the discharge of their statutory functions.
[14]
The “sterk aanbeveling” made by the Court a quo is problematic for a number of
reasons. Firstly, in March 2001 the provisions of section 276 B of the CPA (which had been
inserted by Section 22 of the Parole and Correctional Supervision Act 87 of 1997) had not
yet been put into operation: this only occurred on 1 October 2004. 2Thring J could therefore
not make such an order as a component of the sentence of the appellant.
[15]
In Stander3, Snyders JA summarized the position before promulgation of section
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Section 276B Fixing of non–parole–period
(1)(a) If a court sentences a person convicted of an offence to imprisonment for a period of two years or
longer the court may as part of the sentence fix a period during which the person shall not be placed on
parole.
(b) Such period shall be referred to as the non-parole-period and may not exceed two thirds of the term of
imprisonment imposed or 25 years, whichever is the shorter.
(2) If a person who is convicted of two or more offences is sentenced to imprisonment and the court
directs that the sentences of imprisonment shall run concurrently, the court shall, subject to subsection
(1)(b), fix the non-parole-period in respect of the effective period of imprisonment.”
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S v Stander 2012(1)SACR 537(SCA)[8]
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276B thus:
“[8] Prior to S276B of the Act a decision about parole remained exclusively within the
domain of the Department of Correctional Services as an executive function and
courts have persistently recognized the need for that to be so. Two principles
underlie that perspective. First, the separation of powers; and, second, the fact that
courts obtain their sentencing jurisdiction from statute and until S276B no statute
has empowered courts to make any orders regarding the period of imprisonment to
be served before release on parole is considered.”
[16]
A remark similar to that by Thring J was made by the trial court in Botha4.On appeal
Ponnan AJA observed as follows;
“[25] One final aspect merits attention. The trial Judge recommended that the
appellant served at least two- thirds of his sentence before being considered for
parole. The function of a sentencing court is to determine the period of imprisonment
that a person, who has been convicted of an offence, should serve. A court has no
control over the minimum period of the sentence that ought to be served by such a
person. A recommendation of the kind uncounted here is an undesirable incursion
into the domain of another arm of State, which is bound to cause tension between
the Judiciary and the Executive. Courts are not entitled to prescribe to the executive
branch of government how long a convicted person should be detained, thereby
usurping the function of the Executive.(see S v Mhlakaza and Another 1997 (1)
SACR 515 (SCA) …)
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[26]
Albeit just a recommendation, its persuasive force is
not to be
underestimated. It, no doubt, was intended to be acted upon. In making the
recommendation which it did, the trial court may have imposed, by a different route a
punishment which in truth and in fact was more severe than originally intended.
Such a practice is not only undesirable but also unfair to both an accused person as
well as the Correctional Services Authorities.”
[17]
In Mhlakaza5Harms JA reminded judicial officers of their function when imposing
sentence:
“The function of a sentencing court is to determine the maximum term of
imprisonment a convicted person may serve. The court has no control over the
minimum or actual period served or to be served. A life sentence is thus a sentence
that may, potentially, amount to imprisonment for the rest of the prisoner’s natural
life; and a sentence of 47 years may, potentially, be for the full period. That means
that in law a life sentence is potentially (depending upon the life expectancy of the
offender) more onerous than one of, say, 47 years.
The lack of control of courts over the minimum sentence to be served can lead to
tension between the Judiciary and the Executive because the executive action may
be interpreted as an infringement of the independence of the Judiciary. (cf Blom –
Cooper & Morris The Penalty for Murder; a Myth Exploded [1996] Crim LR at
4
5
S v Botha 2006(2)SACR110(SCA)
S v Mhlakaza 1997(1)SACR 515(SCA)at 521d
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707,716) .There are also other tensions, such as between sentencing objectives and
public resources (see Walker & Padfied op cit at 378). This question relating to the
judiciary’s true function in this regard is probably as old as civilization (Windlesham
“Life Sentences; Law, Practice and Release Decisions, 1989-93 (199) Crim LR at
644).Our country is not unique .Nevertheless, sentencing jurisdiction is statutory and
courts are bound to limit themselves to performing their duties within the scope of
that jurisdiction. Apart from the fact that courts are not entitled to prescribe to the
executive branch of government as to how and how long convicted persons should
be detained… courts should also refrain from attempts, overtly or covertly, to usurp
the functions of the Executive by imposing sentences that would otherwise have
been be inappropriate.“
[18]
After citing with approval extracts approval of the judgment of Erasmus, J in Smit6,
Harms JA continued thus at 522i;
“…
From what has been said it is apparent that penal policy and enforcement are
not static. We are, for instance, aware that there is a Bill that will, if inacted, once
again change the parole and release regime- now to introduce stricter requirements.
The palpable object of the Bill is to cater for present political and public opinion. It
illustrates the point that if a court attunes a sentence with regard to its understanding
of contemporary prison laws or practice, it may result in an unintended injustice to
the convicted person. Under certain circumstances in the United Kingdom the Lord
Chief Justice felt obliged to issue a practice statement requiring courts to have
regard to the fact that it is likely that the actual term served would be , under the
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S v Smit 1996 (1)SACR 250(E)
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then new British regime substantially longer then under the old system..’
[19]
I would mention in passing that more recently the Supreme Court of Appeal has
remarked that Section 276B is to be used sparingly, and only after the accused has been
given the opportunity to address the court on its intentions in that regard. Having regard to
the most recent decision on this point, Zono7, it is apparent that the relevant remark by the
Court a quo in fact constitutes misdirection:
“[6] In my view the effect of the recent judgment of this court in Mchunu [2012
ZASCA126(25 September 2013)]…renders any attempt to stipulate a non-parole –
period in a matter involving a crime committed prior to the coming into operation of
section 276B impermissible. In the absence of legislative authority to do so, it
appears that courts that sought to impose such a non-parole-period, as both the
sentencing court and the full court in this matter did, misdirected themselves. In the
circumstances this court is obliged to set aside that imposition of a non-paroleperiod.”
[20]
It is therefore important, in my view , that when imposing sentence judicial officers
should avoid consideration of the fact that the accused may serve a lesser sentence than
that imposed by the court because of the leniency of, or due to policy considerations
applied by, the Department of Correctional Services. The sentence imposed is the
sentence which the court believes is just in the circumstances due regard being had to the
general principles applicable to sentencing. Consideration of the possibility of early parole
7
Zono v The State[2014]ZASCA 188 (27 NOVEMBER 2014) AT [6]
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is an impermissible incursion into the functions of the Executive and will constitute a
misdirection. Insofar as Thring J appears to have been of the view that the appellant was
an offender deserving of spending at least 25 years in prison, he was obliged, on the
authority of particularly Harms JA above, to impose that effective period of imprisonment.
[21]
Given that the judgment of the Court a quo is tainted by misdirection, this court is at
large to look at sentence afresh. I should say that, even if there were no such misdirection, I
regard the effective sentence of 44 years imprisonment as unduly harsh in the
circumstances. The appellant was aged 22 years at the time of sentence, A sentence of 44
years has the consequence that the appellant is liable (subject to Presidential pardons and
the like) to stay in prison until the age of 66. That is a station in life at which many people
choose to take (or are even obliged to go on) retirement. It reflects a stage towards to end
of one’s working life.
[22]
To be sure, the appellant was already a repeat offender when he came before the
trial court: his first brush with the law allegedly commencing when he was but 10 years old.
Those previous convictions were, in the main, for crimes of dishonesty and housebreaking,
and so I suppose that it cannot be said of the appellant that he was already a hardened
criminal such as accused number 1, a 36 year old man with a long list of previous
convictions covering the full spectrum of anti-social behavior. But, as a member of the
notorious Mongrels gang that has plagued the Cape Flats for decades, he was subject to
the discipline of that order and if he persists in his gang affiliation it is possible that he may
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offend again.8
[23]
Importantly, the appellant was the one who discharged the firearm that maimed the
complainant for life. It is he, who has caused a fellow human being immense physical and
psychological distress, so much so that he has turned his back on the land of his birth. In
such circumstances, the retributive and deterrent effects of sentencing come to the fore.
[24]
I conclude with reference to the following dictum of Harms JA, in Mhlakaza at 519d:
“Given the current levels of violence and serious crimes in this country, it seems
proper that, in sentencing especially such crimes, the emphasis should be on
retribution and deterrence (cf Windlesham ”Life Sentences; The Paradox of
Indeterminacy” [1989] Crim LR at 244,251).Retribution may even be decisive (S v
Nkwanyana & others 1990(4)SA735 (A) at 749C-D). In the words of Van den Heever
JA in state v S v Mungati [1992(1) SACR 550 A at 556h-i,] “In `n geval soos hierdie
moet rehabilitasie en voorkoming as oogmerke by vonnisbepaling terugstaan vir
afskrikking en veral vergelding. Hierdie koelbloedige sluipmoord op n polisieman wat
in ordentlikheid sy plig om wet en order te propeer handhaaf gedoen het, het
gekalwer aan die fondamente van die geordende samelewing.”
[25]
In my view, an appropriate sentence would see the appellant emerge from prison in
his middle years (at around 50) when, hopefully, the rehabilitative effect of lengthy
imprisonment would render him less likely to commit such horrific crimes again. In my view,
In his celebrated book “The Number; One Man’s Search for Identity in the Cape Underworld and Prison
Gangs(Jonathan Ball,2004),” Jonny Steinberg, delves into the structure of these street gangs in great
detail, and reflects the importance of adherence to an apparent structural order.
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an effective sentence of 25 years imprisonment would be appropriate to achieve this goal.
[26]
In the circumstances, I would set aside the sentences imposed on the appellant by
the Court a quo in their entirety (including the “sterk aanbeveling” to the Commissioner of
Correctional Services) and replace them with the following:
Count 1: Robbery with aggravating circumstances
15 years imprisonment
Count 2: Kidnapping
10 years imprisonment
Count 3: Attempted Murder
15 years imprisonment
Counts 4 & 5: Unlawful possession of a firearm and ammunition, the two counts
being taken together for purposes of sentence
4 years imprisonment
[27]
In terms of section 280 of the CPA I would order that the sentences on Counts 2,4
and 5 should run concurrently with the sentence on count 1, while two years of the
sentence on count 3 should run concurrently with the sentence on count 1, the effective
sentence being one of 25 years imprisonment. The sentence is to be antedated to 5 March
2001. Legal Aid South Africa is requested to bring the contents of this judgment to the
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attention of the erstwhile accused numbers 1 and 3 in the Court a quo.
_______________
GAMBLE, J
I agree: It is so ordered.
_______________
BLIGNAULT J
_______________
MANTAME J
I agree