THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case No: 333/2017

In the matter between:

THE DIRECTOR OF PUBLIC PROSECUTIONS
GAUTENG DIVISION, PRETORIA

APPELLANT

and

JUDA JOSEPH PLEKENPOL

RESPONDENT

Neutral citation:
DPP v Plekenpol (333/17) [2017] ZASCA 151 (21 November
2017)
Coram:
Shongwe AP, Willis, Swain and Mathopo JJA and Schippers AJA
Heard:
3 November 2017
Delivered:
21 November 2017

Summary: Criminal law and procedure : cross-appeal by the State : prescribed
minimum sentence for robbery involving the taking of a motor vehicle not considered
by the trial court or this court in the hearing of the convicted person’s appeal : s 51
(2) of the Criminal Law Amendment act 105 of 1997 : cross-appeal succeeds :
prescribed minimum sentence of 15 years’ imprisonment imposed, 10 of which
ordered to run concurrently with the 18 years imposed on the count of murder :
effective sentence 23 years’ imprisonment.

ORDER

On appeal from: The Gauteng Division of the High Court, Pretoria (Maumela J
sitting as the court of first instance):

1 The appeal is upheld.
2 The sentence of four years' imprisonment imposed by the court below in respect of
count 2 and the order antedating that sentence to 28 July 2014 are both set aside
and substituted with the following:
‘On count 2, the accused is sentenced to undergo 15 years' imprisonment of which
10 years are to run concurrently with the sentence imposed on count 1 antedated to
4 June 2015.'
3 The respondent is therefore sentenced to an effective 23 years' imprisonment.

JUDGMENT
___________________________________________________________________
Willis JA (Shongwe AP, Swain and Mathopo JJA and Schippers AJA
concurring):
[1] This appeal, or more precisely, this cross-appeal, concerns the applicability of
the minimum sentence provisions to a robbery involving the taking of a motor
vehicle. The respondent was indicted in the Gauteng Division of the High Court,
Pretoria (Maumela J) on a count of murder (count 1) as well as a count of robbery
with aggravating circumstances , as defined in s 1 of the Criminal Procedure Act 51
of 1977 (count 2). He pleaded guilty to the count of murder but, in respect of count 2,
he pleaded guilty to the competent verdict of robbery (simpliciter). The pleas on both
counts were accepted by the State and he was found guilty accordingly. Of particular
relevance is the fact that the robbery involved the taking of a motor vehicle.

[2] In terms of Part II of Schedule 2 of the Criminal Law Amendment Act 105 of
1997 (the CLA), read with s 51(2) thereof, the respondent was therefore potentially
liable to a minimum sentence of 15 years' imprisonment arising from the robbery for
the very reason that it included the taking of a motor vehicle. The trial court found,
incorrectly, that the crimes of which the respondent had been convicted ‘do not
attract minimum sentences in terms of the Criminal Law Amendment Act in the
sense that he was convicted of offences that do not entail the implementation of
minimum sentencing legislation.’ It sentenced the respondent to four years'
imprisonment on count 2 but ordered that the sentence run concurrently with count 1
in respect of which he had also been convicted. The sentence imposed on count 1
was 24 years’ imprisonment.  This was therefore the effective sentence. Both the
State and the respondent were given leave to appeal to this court against sentence
only. The appeal by the State was referred to by the trial court and the parties
themselves as the cross-appeal. In 2016 this court heard the respondent’s appeal
and reduced the sentence on count 1 to 18 years’ imprisonment but left undisturbed
the concurrent running of the four year sentence on count 2. The effective sentence
was then 18 years’ imprisonment. At that previous hearing, this court overlooked the
cross-appeal granted to the State in respect of sentence on count 2. It is this cross-
appeal which is now before us.

[3] The appellant, the Director of Public Prosecutions (DPP), argued before us
that this court was required by law to interfere with the misdirection committed by the
court a quo, in not having imposed the prescribed minimum sentence of 15 years’
imprisonment in respect of count 2, involving the taking of a motor vehicle. In
addition, the DPP contended that although the crimes of murder and robbery were
closely linked in time and place, they were committed with two different, separate
intentions and, accordingly, an order for the concurrency of the sentence for robbery
with that for the murder amounted to a misdirection.

[4] The DPP contended further that, in any event, the sentence of four years'
imprisonment was 'so shockingly and inappropriately lenient that no reasonable court
could have imposed it'. In summary, the DPP reasoned that this court should
interfere by imposing a sentence of 15 years on count 2 because of an absence of
substantial and compelling circumstances, which may justify a lesser sentence. The

DPP also submitted that the sentence on count 2 should not, in its entirety, run
concurrently with the sentence imposed on count 1.  The DPP’s reasons will be dealt
with later.

[5] In order to decide the questions posed at the beginning of the judgment and
following thereupon, the appropriate order in the circumstances, it is necessary to set
out both the factual matrix and the procedural history of the matter.

[6] The respondent had the benefit of legal representation at his trial. As
mentioned previously, he had been indicted in the court a quo on one count of
murder and one count of robbery with aggravating circumstances. The respondent
pleaded guilty on 28 July 2014 but, in respect of the count of robbery with
aggravating circumstances, he expressly pleaded guilty to robbery simpliciter (ie
robbery without aggravating circumstances being present). This plea was accepted
by the State. The trial judge thereupon delivered his verdict as follows:
'In your plea explanation, you admitted all the elements in the crimes, with regard to which
you tendered the plea of guilty. The State has accepted your plea of guilty, in the manner
expressed in your plea statement. As a result, you are found guilty on the two counts as
follows.
On count 1, you are found guilty of murder, read with the provisions of Section 51 subsection
(2) of the Criminal Law Amendment Act 105 of 1997. On count 2, you are found guilty of
ordinary robbery, however, read with the provisions of Section 51(2) of the Criminal Law
Amendment Act 105 of 1997.'
In other words, the respondent, at the time of his conviction could have had no doubt
that he risked receiving the prescribed minimum sentence of 15 years in respect of
count 2. This also appears from the record, where his legal representative set out his
plea explanation.

[7] In that plea explanation the respondent said that he had come to know his
victim, the deceased, through a mutual friend, known as Eddie. Eddie and the
deceased had lived together. On 9 April 2013 Eddie and another person known as
Dave had gone to a gay bar called Rasputin together. There, during the night, the
respondent had met the deceased. Later, they retired to the house in Garsfontein
where Eddie and the deceased lived. At that house the respondent also met a

person known as 'Charles'. There they also drank wine and conversed before falling
asleep. Eddie and the respondent developed a sexual relationship.

[8] As a result of his short stay at the home of the deceased, a relationship of
sorts developed between them. They smoked cigarettes, drank alcohol and used a
drug known as 'CAT' together. During the evening of 13 April 2013, at a time when
both the deceased and the respondent had been under the influence of alcohol and
drugs, the deceased said to him: 'Ek moet praat, dan kan ons die hele aand hier op
die bank spyker'. The respondent explained to the court that, 'roughly translated', this
meant that 'they can have sex the whole evening on the couch'. The respondent said
he tried to ignore this remark but later the deceased pressed his intentions further by
grabbing the respondent's arm and suggesting they should go to the deceased's
bedroom together. The respondent claimed to have been 'shocked and humiliated'
by these sexual overtures.

[9] Pulling himself away from the deceased, the respondent fell over the couch
on to a bucket containing some cane sticks, one of which he described as a
knopkierie. The respondent sustained a laceration as a result. He became angry and
when the deceased came towards him again, the respondent described what
happened as follows:
'In the emotional state that I was in, I again struck him with the knopkierie. I thought he still
wanted me to go to his bedroom. Due to the fact that I lost my temper, I cannot recall how
many times I struck the deceased. I do, however, know it was multiple times and all over his
upper body and head.'

[10] The respondent then realised that the deceased had been seriously injured.
Claiming still to be in a state of anger when the deceased had attempted to stand up,
the respondent kicked him to force him down again. The respondent said that he
then panicked and, acting impulsively, he decided to steal some of the deceased's
property. He said that this would allow him to feed his drug addiction. The
respondent loaded these items on to a pick-up truck or bakkie belonging to the
deceased. The respondent also forced the deceased to disclose his personal
identification number (PIN) for his bank card.

[11] The items taken from the deceased by the respondent were the following:(a)
a Mahindra light delivery vehicle; (b) two cellular phones; (c) several items of
clothing; (d) a large number of musical CDs; (e) a guitar; (f) several items of sound
and television equipment; (g) laptop computers and other computer equipment; (h) a
microwave oven; (i) golf clubs and other golfing equipment; (j) several banking and
other electronic transaction cards; and (k) an unknown amount of cash in small
change. The respondent pawned some of these items, while others were found in his
hotel room, where he was arrested on 17 April 2013.

[12]  The respondent confessed, in writing, to his crimes the next day and co-
operated fully with the police, claiming to have suffered from depression and suicidal
tendencies as a result of what he had done. He said that he, during the period
between his attack on the deceased and the arrest of himself, had 'used a
substantial amount of drugs and consumed a lot of alcohol'. The respondent also
made a number of formal admissions in terms of s 220 of the Criminal Procedure Act
51 of 1977 (the CPA), including the fact that the deceased had died as a result of the
injuries inflicted upon him by the respondent.

[13] After the respondent had been duly convicted, the State led the evidence of
Dr Janette Verster, the forensic pathologist who had undertaken the postmortem
examination of the deceased. It would appear that the respondent must also have
tied up the deceased around the wrists and either have throttled or attempted to
throttle the deceased before he left. Otherwise, the pathologist's findings were
consistent with the admissions made by the respondent in his plea explanation.

[14] The State proved a number of previous convictions against the respondent,
accumulated since 2007: theft, receiving stolen property, drunken driving, assault
and kidnapping. On appeal, his sentences for  assault and kidnapping were taken
together for purposes of sentencing and reduced to four years' imprisonment to
which the provisions of s 276(1)(i) of the CPA applied. In other words, subject to
certain conditions, the commissioner had the discretion to release the respondent on
parole earlier. In respect of the other previous convictions the respondent had
received suspended prison sentences or fines.

[15] The respondent testified in mitigation of sentence. He said he was 32 years of
age at the time, that his highest level of education was 'Standard six', that he was
married with a ten year old daughter but appeared to have become estranged from
both his wife and daughter. The respondent's own childhood was a deprived one. He
did not know his father and was largely brought up by his grandmother. The
respondent said that he was 'deeply sorry' for what he had done to the deceased
and especially regretted the pain this must have caused the deceased's daughter.
He consulted a clinical psychologist, Dr Henk Swanepoel for the purpose of
assessing sentence. The respondent confirmed as correct that which Dr Swanepoel
had recorded in his report as having been told to him by the respondent himself.

[16] As a child, the respondent had been sexually abused and raped while he was
in custody at a so-called 'safe house'. The respondent considers himself to be
heterosexual but worked as a male prostitute to other men in order to supplement his
income as a security guard and to further feed his drug addiction. Dr Swanepoel
considered that the respondent may suffer from Borderline Personality Disorder
(BPD). Dr Swanepoel reported that the respondent appeared to be sincerely
remorseful but was 'emotionally low in functioning or very immature which can
influence his insight' and was 'emotionally poorly equipped to effectively deal with
demands from the environment'.

[17]   With the leave of counsel for the respondent and the court, after the
respondent had testified, the State briefly led the evidence of the brother of the
deceased. That evidence did not add much to the overall picture. The brother's
evidence was that, obviously, the murder of the deceased, a 45 year old man, had
been deeply traumatic for his entire family.

[18] On 4 June 2015, the trial judge sentenced the respondent to 24 years'
imprisonment on count 1 and four years' imprisonment on count 2. The court ordered
the sentence on count 2 to run concurrently with count 1. As outlined above, the
respondent's effective sentence was therefore 24 years' imprisonment. The court
also ordered the sentence to take effect from the date upon which he had been
convicted, viz 28 July 2014. As mentioned previously, the trial court, failed to
consider the minimum sentence provisions relating to the taking of a motor vehicle

during the course of the robbery and, quite obviously, in so doing, failed to make a
finding as to whether there were substantial and compelling circumstances present
which justified a sentence less than the prescribed minimum.

[19] Both the State and the respondent thereupon applied for leave to appeal, the
respondent first and then the State. The court a quo granted both parties leave to
appeal to this court against sentence only. The question of whether both parties
could argue the appeal was clarified after a question by the State. It was made clear
that the State would have a right to cross-appeal in respect of sentence. The appeal
was heard by this court on 11 November 2016.1 On 24 November 2016 this court
handed down its judgment in the matter, the order of which reads as follows:
'1 The appeal is upheld.
2 The sentence of 24 years' imprisonment imposed by the court below in respect of the
murder and the order antedating the operation of the sentences to 28 July 2014 are set
aside. The order of the court below is substituted with the following:
"On count 1, the accused is sentenced to undergo 18 years' imprisonment. On count 2, the accused
is sentenced to undergo 4 years' imprisonment which is ordered to run concurrently with the sentence
imposed on count 1."
3 The effective sentence of 18 years' imprisonment is antedated to 4 June 2015.'

[20]  For reasons that are not clear, this court overlooked the State’s notice of
appeal dated 10 June 2015 which included the cross-appeal on count 2. In its
previous judgment this court noted that leave to appeal against sentence had been
given to both the State and the respondent. The court observed, however, that it was
not clear against which sentence leave had been granted and said that the appellant
(now the respondent) had directed his notice of appeal against the sentence
imposed in respect of the murder only, that the State had filed no notice of appeal
and that therefore there was therefore no ‘cross-appeal’ by the State. This was not,
in fact correct. The court said that the appeal was restricted to the question of the
sentence of 24 years on count 1, the count of murder. Accordingly, it did not consider
the question of the prescribed minimum sentence of 15 years in respect of count 2.
This court did, however, consider the applicability of the minimum sentence for the
murder count  as provided for in s 51(2)(a)(i) of the Act and decided that, in all the

1 S v Plekenpol [2016] ZASCA 171; 2016 JDR 2205 (SCA).

circumstances of the matter, more than the prescribed minimum sentence of 15
years' imprisonment was required.

[21] This court found that the trial court's order antedating the sentences was
incompetent and could not be allowed to stand: in terms of the CPA, only an
appellate or reviewing court may antedate sentences.  In its concluding remarks, this
court observed that 'it would be wise to set out in this order the full sentence so as to
avoid any misunderstanding that could otherwise occur'.

[22]   Even if the plea bargain at the beginning of the trial was made with the
intention of avoiding a prescribed minimum sentence on count 2, the record makes it
clear that the respondent could have been under no illusions that a plea of guilty to
robbery (simpliciter) could not avoid the clear provisions of the Act.  His counsel
even confirmed the applicability of the minimum sentence provisions before the trial
court. S v Malgas2 has made it plain that the prescribed minimum sentences are to
be respected by the courts.3 There are no substantial and compelling circumstances
justifying a departure from the minimum sentence in respect of count 2.

[23] Nevertheless, to superimpose 15 years’ imprisonment on count 2 and to leave
that sentence to run entirely consecutively with the sentence of 18 years’
imprisonment previously imposed by this court for the murder would entail an
effective sentence of 33 years' imprisonment. Counsel for the State eventually
conceded that, if left undisturbed, the cumulative effect of the sentence would be
excessive. She asked for an effective sentence of 25 years’ imprisonment. To order
that the sentence on count 2 should run concurrently in its entirety would render the
prescribed minimum sentence provisions nugatory. It would also not take into
account the gravity of the offences, as a whole, as well as the fact that the State
correctly submitted that the murder and the robbery were committed with separately
formed intentions. We are of the view that 10 years of the sentence on count 2
should be ordered to run concurrently with the sentence imposed on count 1. The
result will effective sentence of 23 years’ imprisonment. That will be appropriate in all
the circumstances.

2 S v Malgas 2001 (2) SA 1222 (SCA).
3 Para 25.

[24]  The following order is made:
1 The appeal is upheld.
2 The sentence of four years' imprisonment imposed by the court below in respect of
count 2 and the order antedating that sentence to 28 July 2014 are both set aside
and substituted with the following:
‘On count 2, the accused is sentenced to undergo 15 years' imprisonment of which
10 years are to run concurrently with the sentence imposed on count 1 antedated to
4 June 2015.'
3 The respondent is therefore sentenced to an effective 23 years' imprisonment.

______________________

N P WILLIS
Judge of Appeal

APPEARANCES:

For Appellant:

P Vorster
Instructed by:
Director of Public Prosecutions: Pretoria
c/o Director of Public Prosecutions:  Bloemfontein

For Respondent:

MC Ndalane (with her, JM Mojuto)
Instructed by:
Legal Aid South Africa, Pretoria
c/o Legal Aid South Africa, Bloemfontein