THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 20344/14

In the matter between:

RAPHAEL MACHONGO

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Machongo v S (20344/14) [2014] ZASCA 179 (21
November 2014)

Coram:
Shongwe JA, Mathopo and Gorven AJJA

Heard:
11 November 2014

Delivered: 21 November 2014

Summary: Criminal Procedure – sentence – failure to forewarn an accused
person of the applicability of the Minimum Sentence Act is an irregularity
which may result in an unfair trial in respect of sentence – an appeal court will
be at large to consider sentence afresh upon finding that a misdirection existed –
considering sentence afresh must mean that the appeal court ought to disabuse
itself from what the court a quo said in respect of sentence and that such power
to sentence resides in the provisions of s 276 of the Criminal Procedure Act 51
of 1977.

ORDER
_____________________________________________________________

On appeal from: North West High Court, Mafikeng (Gutta J, Djaje and
Chwaro AJJ concurring sitting as court of appeal):
1. The appeal against sentence is upheld
2. The order of the full court dismissing the appeal is set aside and replaced
with the following:
‘a) The appeal against sentence is upheld
b) The sentences of the trial court are set aside and replaced with the
following:
(i) Accused number 2 is sentenced to 25 years’ imprisonment on the
charge of murder.
(ii) Accused 2 is sentenced to 15 years’ imprisonment on the charge of
robbery with aggravating circumstances.
(iii) The whole sentence on the charge of robbery with aggravating
circumstances is ordered to run concurrently with the 25 years’
imprisonment on the murder charge.’
3. The sentences are antedated to 18 November 2004 in terms of s 282 of
the Criminal Procedure Act 51 of 1977.

JUDGMENT
______________________________________________________________

Shongwe JA (Mathopo and Gorven AJJA concurred)
[1] This appeal is with the special leave of this court, limited to sentence
only. The appellant was convicted of murder (count 1) and sentenced to life
imprisonment and also of robbery (count 2) with aggravating circumstances as

defined in s 1(i) of the Criminal Procedure Act 51 of 1977 (CPA) and sentenced
to 20 years’ imprisonment. The appellant was acquitted on counts 3 and 4
(unlawful possession of a firearm and ammunition).

[2] His application for leave to appeal against his conviction was
unsuccessful, however leave was granted by the trial court against sentence
only. The court a quo dismissed his appeal against sentence and antedated the
sentence to 18 November 2004. Hence the special leave to appeal was granted
by this court.

[3] The facts are simply that on 10 September 2002, the appellant together
with two others planned to steal or rob a Toyota Venture (minibus) for purposes
of using the parts thereof. As they were walking in the street they noticed the
deceased’s Toyota Venture, parked next to the gate. They saw the deceased
closing the gate. They attacked him – he produced a firearm – but they
overpowered him and dispossessed him of his firearm. The appellant took the
firearm and a shot was fired, the deceased died as a result. The appellant and
two others drove off with the deceased’s Toyota Venture and they were arrested
later on the same evening and charged with murder and robbery with
aggravating circumstances. The charges were withdrawn against the third
suspect who was made a state witness in terms of s 204 of the CPA.

[4] The main ground of appeal to the full court was that the trial court erred
in relying on the provisions of s 51(1) of the Criminal Law Amendment Act 105
of 1997 (Minimum Sentence Act), because no mention was made in the
indictment to inform the appellant of the applicability of the Act. Nor did the
trial judge warn the appellant of its applicability. In granting leave to the full
court the trial judge acknowledged that he erred in applying the provisions of
the Minimum Sentence Act. The appellant contended that failure to mention and

to warn him of these provisions ipso facto resulted in the miscarriage of justice.
(See S v Ndlovu 2003 (1) SACR 331 (SCA) para 12 and the case cited therein)

[5] The full court agreed that the omission to mention the applicability of the
minimum sentence regime was irregular and constituted a misdirection entitling
it to interfere with the sentence. (See S v Ndlovu supra) however, it concluded
that ‘the normal inherent penal jurisdiction of the high court is applicable and
the court will have to consider the sentence afresh’. It then embarked on an
exercise to consider the aggravating as well as the mitigating factors. It
concluded that from the facts of this case and evidence on record, the sentences
of life imprisonment on the murder charge and 20 years’ imprisonment on the
charge of robbery with aggravating circumstances are neither shockingly
inappropriate nor induce a sense of shock. Lastly it said that the sentences
imposed by the trial court were fair and justified in the circumstances.

[6] Before us the appellant contended that the trial court misdirected itself by
relying on the provisions of the minimum sentence when no mention was made
at all of its applicability in the indictment. Also that the full court did not
consider the sentence afresh but simply regurgitated the sentence imposed by
the trial court without more. On the question of the robbery with aggravating
circumstances, counsel for the appellant submitted that a sentence of 15 years’
imprisonment would be appropriate. Counsel for the State did not contend
otherwise. I consider a sentence of 15 years to be appropriate in the
circumstances.

[7] The respondent conceded that the failure to mention or forewarn the
appellant of the applicability of the provisions of s 51(1) and (2) of the
Minimum Sentence Act, indeed, resulted in an unfair trial in respect of sentence
– and also that the full court applied an incorrect test by saying:

‘[21] It is trite that a court of appeal will only interfere when the sentence imposed by the trial
court is vitiated by an irregularity or misdirection or when the sentence is shockingly severe,
disturbingly inappropriate and totally out of proportion to the offence committed.’

[8] On the murder charge the respondent contended that these types of
murders are overly prevalent in the country and therefore this court should send
a strong message by imposing the heaviest sentences in offences of this nature.

[9] This court in S v Makatu 2006 (2) SACR 582 (SCA) para 7 said:
‘[7] As a general rule, where the State charges an accused with an offence governed by s
51(1) of the Act, such as premeditated murder, it should state this in the indictment. This rule
is clearly neither absolute nor inflexible. However, an accused faced with life imprisonment –
the most serious sentence that can be imposed – must from the outset know what the
implications and consequences of the charge are. Such knowledge inevitably dictates
decisions made by an accused, such as whether to conduct his or her own defence; whether to
apply for legal aid; whether to testify; what witnesses to call and any other factor that may
affect his or her right to a fair trial. If during the course of a trial the State wishes to amend
the indictment it may apply to do so, subject to the usual rules in relation to prejudice.’
(See also: S v Ndlovu (supra); S v Legoa 2003 (1) SACR 13 (SCA) para 23 and
S v Seleke & andere 1976 (1) SA 675 (T) at 682H (a decision of a full court);
recently Kgantsi v S (732/11) [2012] ZASCA 76 (25/5/12) and P N v S (828/13)
[2014] ZASCA 24 (27/3/14).

[10] It is settled law that failure to forewarn or to mention the applicability of
the minimum sentence is a fatal irregularity resulting in an unfair trial in respect
of sentence. The question is, having come to the conclusion that a misdirection
has been committed, what next should the appeal court do? The answer is and
has always been that the appeal court must consider the sentence afresh. What
then does considering the sentence afresh mean?

[11] Certainly it does not mean what the full court said in para 21 of its
judgment referred to in para 7 above. I therefore agree with counsel for the
respondent that the test applied was incorrect. Considering a sentence afresh
must ineluctably mean, setting aside of the sentence of the trial court, inter alia,
and conducting an inquiry on sentence as if it had not been considered before.
In other words, the appeal court must disabuse itself of what the trial court said
in respect of sentence – it must interrogate and adjudicate afresh the triad in
respect of sentence as stated in S v Zinn 1969 (2) SA 537 (A) at 540G-H. Its
task would be to impose a sentence which it thinks is suitable in the
circumstances, without comparing it with the one imposed by the trial court.
The full court erred in my view by stating that an appeal court ‘will only
interfere when the sentence imposed … is vitiated by an irregularity … or when
the sentence is shockingly severe, disturbingly inappropriate and totally out of
proportion …’. What the full court did was not considering the sentence afresh
but compared what it had in mind with what was imposed.

[12] In paragraph 5 above a statement made by the full court is quoted which
gives the impression that a high court possesses inherent penal jurisdiction –
whereas it does not – what it possesses is the power, which resides in the
provisions of s 276 of the CPA. This court in DPP, Western Cape v Prins 2012
(2) SACR 183 (SCA) para 31 observed that s 276 is ‘the source of the power of
… courts to impose sentences …. Absent s 276, neither the magistrates’ courts
nor the high courts would be entitled to impose sentence on people who commit
common law crimes’.

[13] Counsel for the respondent also raised the question that the high court
does not possess inherent penal jurisdiction. He submitted that a trend is
developing in their division to refer to an inherent jurisdiction when an appeal
court has to consider sentence afresh. He also referred to certain paragraphs of

the appellant’s heads of argument where the phrase ‘inherent jurisdiction’ is
mentioned. I have already said that the power of an appeal court in respect of
sentencing resides in the provisions of s 276 of the CPA and nowhere else. It is
not only salutary practice but advisable too that practitioners need to be careful
not to loosely use some of the expressions or phrases when preparing their
arguments. My impression (shared by my colleagues of course) is that inherent
jurisdiction may have been loosely used, but in actual fact meaning the ordinary
powers conferred by s 276 of the CPA.

[14] It is not in dispute that the trial court erred and misdirected itself in
respect of sentence as the appellant had not been forewarned of the applicability
of the Minimum Sentence Act. It is also not in dispute that the full court erred in
its approach by using an incorrect test when sentencing the appellant afresh.
These series of misdirections placed this court at large to consider the sentence
as if it had not been considered before.

[15] I now turn to the facts of this case to consider and adjudicate on the
sentence afresh. The personal circumstances of the appellant are that he was 32
years old when the offences were committed and 34 years old at the time when
he was sentenced. He spent almost two years awaiting trial while in custody. He
left school at standard 4 and was employed as a taxi driver earning R300 per
week. He is unmarried and has no minor children. He is a first offender. It
appears from the evidence that he initiated (master-minded) the operation to rob
and steal Ventures or Toyota vehicles with an intention to strip the vehicles and
sell the parts. The motivation of crimes was to make more money – not that he
did not earn at all but because he wanted to augment his wages. The agreement
with his fellow perpetrators was that if they could not steal it they would take it
by using force – so violence was envisaged.

[16] The nature of the offences is no doubt serious. Murder is in my view, the
most serious offence as the deceased cannot be replaced and no amount of
compensation or punishment of any nature can substitute his life – hence s 11 of
the Constitution protects life by providing that – ‘Everyone has the right to life’.
It is clear from the evidence that murder was not pre-planned, however, the
appellant possessed a firearm without bullets as they failed to find some –
probably to use it to scare their victim. The deceased was armed with a firearm
which he produced upon being attacked, unfortunately one of the perpetrators
(accused no. 1) kicked his hand and the firearm fell whereupon he was fatally
shot – it is unknown as to who fired the shot. The firearm was found on accused
no. 1’s lap when they were apprehended. It is therefore common cause that the
murder must be regarded as serious, though the respondent’s counsel argued
that murder occurring during a robbery was prevalent in this country and he
referred us to some statistics which indicated an increase of this type of
murders. He sought to attribute a higher degree of seriousness to which courts
ought to respond positively with heavy sentences – This court in Director of
Public Prosecutions North Gauteng: Pretoria v Gcwala & others (295/13)
[2014] ZASCA 44 (31/3/14) observed that ‘People who take another’s life for
financial gain must be severely punished’.

[17] There is no doubt that the interests of society need to be protected. It is
settled law that courts must send a strong message that crime will not be
tolerated – however courts should not be expected, by society, to avenge and
apply the rule of an eye for an eye. The sentence to be imposed ought to be
balanced without over-emphasising one part of the triad over another. The
objects of punishment – retribution, rehabilitation and deterrence also ought to
be balanced.

[18] It is undisputed that the robbery with aggravating circumstances was pre-
meditated and executed according to plan – though murder was not part of the
plan. However it remains serious – hence the legislature deemed it necessary to
prescribe a minimum sentence. When the deceased was shot, he was unarmed
and posing no threat – taking the vehicle without shooting him could have been
achieved without any resistance.

[19] The appellant did not at any stage show remorse, (see S v Matyityi 2011
(1) SACR 40 (SCA) para 14). The facts and evidence before this court are
squarely incongruous with a non-custodial sentence.

[20] Taking all the factors into consideration – the aggravating factors far
outweigh the mitigating factors – it is difficult, I must say, to find any
mitigating factors which can justify a lenient sentence. In consideration of the
cumulative effect of the sentences, I have considered to order the sentence on
the robbery charge to run concurrently with the sentence on the murder charge.
The murder and robbery occurred almost simultaneously during one process of
removing the vehicle.

[21] The following order is made:
1. The appeal against sentence is upheld
2. The order of the full court dismissing the appeal is set aside and replaced
with the following:
‘a) The appeal against sentence is upheld
b) The sentences of the trial court are set aside and replaced with the
following:
(i) Accused number 2 is sentenced to 25 years’ imprisonment on the
charge of murder.

(ii) Accused 2 is sentenced to 15 years’ imprisonment on the charge of
robbery with aggravating circumstances.
(iii) The whole sentence on the charge of robbery with aggravating
circumstances is ordered to run concurrently with the 25 years’
imprisonment on the murder charge.’
3. The sentences are antedated to 18 November 2004 in terms of s 282 of the
Criminal Procedure Act 51 of 1977.

_______________________

J B Z SHONGWE

JUDGE OF APPEAL

Appearances

For the Appellant:
N.L Skibi

Instructed by:

Legal Aid SA, Mahikeng;

Justice Centre, Bloemfontein.

For the Respondent:
N.J Carpenter

Instructed by:

The Director of Public Prosecutions, Mmabatho;

The Director of Public Prosecutions, Bloemfontein.
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
21 November 2014
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.
* * *
RAPHAEL MACHONGO V THE STATE

The SCA today upheld an appeal against sentence on the grounds that the trial as well as the
full court misdirected themselves. This court came to the conclusion that it was consequently
at large to sentence afresh.

The trial court sentenced the appellant to life imprisonment for murder and 20 years’
imprisonment for robbery with aggravating circumstances without forewarning him of the
applicability of the Minimum Sentence Act.  The appellant appealed to the full court against
the sentence.

The full court found that it was irregular to sentence the appellant to life imprisonment and 20
years respectively in circumstances where the appellant had not been forewarned. Even the
indictment did not contain any semblance of the Minimum Sentence Act. The full court,
however, applied an incorrect test to sentence afresh hence it also sentenced the appellant to
life imprisonment and 20 years’ imprisonment respectively.

This court concluded that considering a sentence afresh must mean setting the sentence of the
court a quo aside and conducting an inquiry on sentence as if it has not been considered

before. In other words, the appeal court must disabuse itself of what the court a quo said in
respect of sentence. It must interrogate and adjudicate afresh the triad in respect of sentence
as stated in the old case of S v Zinn 1969 (2) SA 537 (A) which directed that when
considering sentence, the personal circumstances of an accused person, the seriousness of the
offence and the interest of society must be considered and be balanced.

The sentence was reduced to 25 years’ imprisonment on the murder and 15 years’
imprisonment on the robbery with aggravating circumstances. It also ordered the 15 years’
imprisonment on robbery to run concurrently with the 25 years’ imprisonment. The sentence
was antedated to 18 November 2004 when the appellant was sentenced for the first time.