Raphael Machongo v The State

On 10 September 2002, the appellant together with two others planned to steal or rob a Toyota Venture minibus for purposes of using its parts. They noticed the deceased's Toyota Venture parked next to a gate and saw the deceased closing the gate. They attacked him and he produced a firearm, but they overpowered him and dispossessed him of it. The appellant took the firearm and a shot was fired, killing the deceased. The appellant and two others drove off with the deceased's Toyota Venture and were arrested later the same evening. They were charged with murder and robbery with aggravating circumstances. Charges were withdrawn against the third suspect who became a state witness under section 204 of the Criminal Procedure Act. The appellant was 32 years old when the offences were committed, a first offender, had left school at standard 4, and was employed as a taxi driver earning R300 per week. The trial court convicted the appellant of murder and robbery with aggravating circumstances and sentenced him to life imprisonment on count 1 (murder) and 20 years' imprisonment on count 2 (robbery with aggravating circumstances). The trial court applied the provisions of the Criminal Law Amendment Act 105 of 1997 (Minimum Sentence Act) without mentioning its applicability in the indictment or warning the appellant. He spent almost two years in custody awaiting trial.

• Whether the failure to mention in the indictment or forewarn the appellant of the applicability of the Minimum Sentence Act constituted a fatal irregularity resulting in an unfair trial in respect of sentence
• What the correct approach is when an appeal court finds a misdirection and must consider sentence afresh
• Whether a high court possesses inherent penal jurisdiction or whether its sentencing power derives from statute
• What is the appropriate sentence for murder and robbery with aggravating circumstances in the circumstances of this case

1. The appeal against sentence is upheld. 2. The order of the full court dismissing the appeal is set aside and replaced with: (a) The appeal against sentence is upheld; (b) The sentences of the trial court are set aside and replaced with: (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 section 282 of the Criminal Procedure Act 51 of 1977.

The binding legal principles established are: (1) Failure to forewarn or mention the applicability of the Minimum Sentence Act in the indictment is a fatal irregularity resulting in an unfair trial in respect of sentence. (2) When an appeal court finds a misdirection in sentencing, it must consider sentence afresh, which means setting aside the sentence of the trial court and conducting an inquiry on sentence as if it had not been considered before. The appeal court must disabuse itself of what the trial court said and adjudicate afresh on the Zinn triad without comparing its proposed sentence to the one imposed by the trial court. (3) High courts do not possess inherent penal jurisdiction; the power to impose sentences resides in section 276 of the Criminal Procedure Act 51 of 1977. Absent section 276, neither magistrates' courts nor high courts would be entitled to impose sentence on people who commit common law crimes. (4) The test that an appeal court will only interfere when the sentence is 'shockingly severe, disturbingly inappropriate and totally out of proportion' is incorrect when the court has already found a misdirection requiring fresh consideration of sentence.

The court made several non-binding observations: (1) Murder is the most serious offence as the deceased cannot be replaced and no amount of compensation or punishment can substitute his life, hence section 11 of the Constitution protects the right to life. (2) Practitioners need to be careful not to loosely use expressions or phrases such as 'inherent jurisdiction' when preparing their arguments - it should not be used loosely but should refer to the ordinary powers conferred by section 276 of the CPA. (3) While courts must send a strong message that crime will not be tolerated, they should not be expected by society to avenge and apply the rule of an eye for an eye. The sentence ought to be balanced without over-emphasising one part of the triad over another, and the objects of punishment (retribution, rehabilitation and deterrence) also ought to be balanced. (4) People who take another's life for financial gain must be severely punished. (5) The court noted a developing trend in some divisions to refer to inherent jurisdiction when an appeal court has to consider sentence afresh, which is incorrect.

This case is significant in South African criminal procedure law for several reasons: (1) It reaffirms that failure to mention or forewarn an accused of the applicability of the Minimum Sentence Act is a fatal irregularity resulting in an unfair trial in respect of sentence; (2) It clarifies the correct approach when an appeal court considers sentence afresh after finding a misdirection - the appeal court must disabuse itself of what the trial court said and conduct the inquiry as if sentence had not been considered before, rather than simply comparing whether the original sentence was shockingly inappropriate; (3) It clarifies an important jurisdictional point that high courts do not possess inherent penal jurisdiction but derive their sentencing power from section 276 of the Criminal Procedure Act; (4) It provides guidance on balancing the triad of sentencing factors and the objects of punishment (retribution, rehabilitation, and deterrence) in cases involving murder and robbery with aggravating circumstances.