About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2016
>>
[2016] ZAWCHC 71
|
|
Matshobongwane v S (A39/2016) [2016] ZAWCHC 71 (11 March 2016)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE
NO
: A39/2016
DATE
:
11 MARCH 2016
In
the matter between:
APHIWE
MATSHOBONGWANE
...................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
BOQWANA,
J
The
appellant was arraigned before the Cape Town Regional Court on one
count of culpable homicide. On 14 August 2014 he pleaded
guilty
to the charge. A written statement in terms of Section 112(2)
of the Criminal Procedure Act 51 of 1977, (‘the
Criminal
Procedure Act&rsquo
;), was handed up in court and read into the
record. On 24 October 2014 the appellant was sentenced to eight years
imprisonment
of which three years were suspended for five years on
certain conditions. His appeal lies against sentence having
been granted
leave on petition to this Court.
In his
statement the appellant, in essence, admitted to having stabbed
Thandazile Molefe (‘the deceased’) with a knife
thereby
causing mortal damage to his subclavier artery. It is necessary
to outline the statement and admissions made therein
to give a
picture of what actually transpired on that tragic day.
The
appellant was a student at the Cape Peninsula University of
Technology (‘Technicon’). According to his
statement,
on 13 November 2013 he was walking to his room situated at
the technicon when he heard music and jocularity coming from one of
the rooms. He went towards this particular room and saw people
standing outside singing and laughing. It became evident
that
these people were having a party. He recognised a number of
people at the party. He walked into this room with
the view to
greeting a person he knew by the name of Festus. Upon his
arrival he was confronted by one Sivuyile Sisonke (‘Sivuyile’)
who asked him why he was there as the party was private.
He
became disconcerted by Sivuyile’s rude approach but replied
mildly that he just wanted to greet his friend and would then
leave.
As he tried to pass Sivuyile, Sivuyile attacked him unceremoniously,
smacking and shouting at him. He started
to bleed from his
nose. Sivuyile jerked him around with great force during this
attack as a result he lost his footing falling
on the ground.
He was
astonished by this but did not retaliate since he is not violent by
nature and did not want to get involved in a fight.
He instead
decided to go home and sleep. When he arrived at his room he
was drunk from partying earlier. As a result he did
not think that it
was possible to defend himself in that state of inebriation.
His reflexes were dull due to intoxication.
He state of
drunkenness however did not affect his ability to distinguish between
right and wrong.
He
reached for his pocket so that he could put his wallet and cell phone
on the bed but could not find them. When he retraced
his steps
he concluded that the missing items might have gotten lost during the
attach Sivuyile. The wallet contained all
the money he had
until the end of the month.
He felt
apprehensive about being attacked if he went to look for the wallet
at the place where he was attacked by Sivuyile.
He admitted
that there was no imminent attack at that stage to his person. He
however armed himself with a knife and went to look
for his missing
items downstairs [where he had a fight with Sivuyile]. He held
the knife with his right hand hoping that
its presence would deter
any further attack upon his person. He searched the room from
the outside and found nothing.
He then went inside the room. As
he entered he notice Sivuyile and his focus was on Sivuyile, in case
he attacked him again.
He then asked for his wallet and phone.
One girl told him that he had no wallet and a phone. He
continued to search but was
agitated by the attack on him as well as
what he regarded as theft of his belonging. His attention was
still on Sivuyile.
He
noticed a shadow moving fast towards him, out of the corner of his
eye. He then turned fast instinctively stabbing in the direction
of
the person approaching him from the couch. That person was the
deceased. He stabbed the deceased once in the neck
and saw
blood spurting from his neck. He then ran outside where he
stood frozen in horror.
He
pointed out that the deceased was not involved in the earlier
altercation between him and Sivuyile and there were no ill feelings
between him and the deceased. He never regarded the deceased as
a threat. His focus was on Sivuyile. He admitted that in
stabbing the
deceased he was neither in imminent danger of attack, nor did he
objectively believe himself to be under attack or
acting in private
defence. He admitted that a reasonable man, in his position
would have acted with more care in the same
situation and would not
have brandished the knife as he did. He admitted that in doing
so he acted negligently and without
reasonable care and his actions
were the legal and factual cause of the deceased’s death.
He further admitted that
his actions were wrongful and punishable as
he had no right to act in the manner he did.
Prior
to sentencing, a probation officer’s report was procured where
interviews were conducted with both members of the appellant’s
and the deceased family and friends. The appellant was 25 years
old second year information technology student at Cape Peninsula
University of Technology when he was sentenced. He did
part-time work with various employer while studying to support
himself
financially. He paid for his own accommodation.
Prior to the incident he resided with a friend for approximately
three
months. He was described as a quiet and respectable
person who was not violent and aggressive in nature. He was a
social
drinker and enjoyed clubbing and spending time with friends
and family but after the case / incident he spends time alone.
According to the probation officer, he showed remorse for his actions
to the probation officer and indicated that neither he nor
his family
had approached the deceased’s family as they were afraid about
how the apology would be received.
The
deceased’s family on the other hand were unhappy about the fact
that the appellant was convicted of culpable homicide
and not murder.
They were hurt by the fact that they had invested a lot in the future
of the deceased who was in his final year
of business studies.
He was a member of the SRC and his death occurred just before his
graduation. They had high expectations
that he would provide
for the family after finishing his studies. He possessed
great leadership qualifies and his family
will never be able to
replace him. His family was described as being too distraught
to even attend court proceedings.
The probation officer
recommended that the appellant be sentenced in terms of
Section
276(1)(i)
of the
Criminal Procedure Act. She
was of the view
that the appellant could be rehabilitated if exposed to correct
programs after serving a short term imprisonment
sentence.
The
magistrate was impressed by the thoroughness of the probation
officer’s report but he disagreed with her recommended
sentence. He was of the view that the sentence involving a term of
imprisonment was the most suitable which balanced all the interests.
He intimated that he would make the term as short as possible in
order to allow the appellant to build his life again.
The
grounds of appeal submitted on behalf of the appellant are briefly
that: The sentence imposed by the magistrate was shockingly
inappropriate warranting the interference of this Court; the
magistrate over-emphasized the seriousness of the offence and
under-emphasized
the interest of the appellant; the nub of the
criticism against the magistrate is that he failed to take into
account the appellant’s
degree of blameworthiness and focusing
on the seriousness of the crime and impermissibly relying on the case
of
S v Philander
2012(1) SACR 582 ECG; he failed to have proper regard to the
probation officer’s report and other case law which was more
aligned to the facts of this case which imposes a sentence lesser
than the one he imposed; a proper consideration of the appellant’s
personal circumstances and his conduct blended with a measure of
mercy would require this Court to intervene and impose a lesser
sentence.
It is
trite law that the imposition of sentence is the prerogative of the
trial Court and that the exercise of its discretion is
not interfered
with merely because an Appellate Court would have imposed a sentence
it preferred. The approach by an Appellate
Court in an appeal
on sentence was outlined in the case of
S
v Malgas
2001(1) SACR 469 SCA at 478
D-E as follows:
“
a Court exercising Appellate
jurisdiction cannot, in the absence of material misdirection by the
trial Court, approach the question
of sentence as if it were the
trial court, and then substitute the sentence arrived at by it simply
because it prefers it.
To do so would be to usurp the
sentencing discretion of the trial Court...”
The
Court went on further to state at page 478I to 479A that:
“…
the tests for interference with
sentences on appeal were evolved in order to avoid subverting basic
principles that are fundamental
in our law of criminal procedure,
namely, that the imposition of sentence is the prerogative of the
trial court for good reason
and that is not for appellate courts to
interfere with that exercise of discretion unless it is convincingly
shown that it has
not been properly exercised...”
The
disparity between the sentence imposed by the trial Court and that
this Court would have imposed must be sufficient so as to
warrant
interference by this Court.
Ms
Erasmus who appeared for the appellant referred us to the decision of
S v Naidoo & Others
2003(1) SACR 347 SCA at 361h to 362e where the Court sought to
distinguish between different circumstances in which a crime of
culpable homicide may be committed. The one end of the
spectrum, as set out in
Naidoo
was where a momentary lapse of concentration results in tragedy. In
that situation neither the lapse nor failure to foresee the
consequence is deliberate. The other end is the type of case
where the accused has deliberately assaulted the deceased but
has not
been convicted of murder because the State failed to prove the case
beyond reasonable doubt. The Court held that
no one would
quarrel with the custodial sentence in the latter case. As to
the former it held that the Court has a duty to
strive to find a
balance between a sentence that:
“
will not appear to rate the loss of a
life with all the attendant trauma to those whom the deceased was
near and dear as not too
serious against, on the other, the need to
calibrate the degree to which the accused’s conduct deviated
from the standard
of care expected of a reasonable person and if it
is found to be slight, also to reflect that adequately in the
sentence to be
imposed.”
This is
however inherently difficult. See
Naidoo
supra
at
paragraphs 45 and 46.
Ms
Erasmus also referred us to different case law in order to highlight
how courts have treated the issue of sentencing in cases
of culpable
homicide. While it is useful to look at previous cases as a guideline
in sentencing, it must not be forgotten that
each case presents
peculiar circumstances. A number of these cases which I have
perused do highlight the fact that punishment
should acknowledge the
sanctity of human life but at the same time the court should strive
to achieve the balance enunciated by
Marais,
JA
Naidoo
supra
:
The
varying nature of sentences imposed in cases of culpable homicide is
indicative of the differing nature of the circumstances
in each case.
For instance, in
S v Crossbeck
2008(2) SACR 317 SCA the majority decision rejected a submission from
the State that
section 276(1)(i)
had to follow after it replaced a
conviction of murder with that of culpable homicide. In that
case an appellant accidentally
killed people whilst shooting at
animals. The Court found that a custodial sentence was called
for and imposed five years
of which two years were suspended.
In certain cases courts have imposed suspended sentences whilst in
some correctional supervision
has been found to be appropriate.
It is
submitted by Ms Erasmus that the case of
S
v Philander
supra
that the magistrate referred to in his judgment fell to the more
serious end of the culpa spectrum and it was impermissible for
the
magistrate to rely on it. That judgment involved a case
of sustained assault of a wife by husband leading to her
death.
In that case the Court found that the degree of blameworthiness
exhibited by the accused was by no means slight.
The accused
sentenced to seven years imprisonment. The magistrate in the
present instance quoted paragraph 8 of the
Philander
judgment which, in my view is a restatement of what has been
mentioned in many cases of culpable homicide. It simply refers to
blameworthiness as a relevant factor and the seriousness of the
offence.
Highlighting
the seriousness of the offence did not mean that the magistrate
considered that the appellant should be dealt with
more severely than
would otherwise be the case. The magistrate indicated that he
was aware of the appellant’s circumstances
and that he would do
everything in his power to ensure that the term of imprisonment was
as short as possible.
I agree
with Ms Erasmus that the accused’s degree of blameworthiness is
relevant in determining which sentence is appropriate
in these
circumstances. It would have indeed been helpful if the
magistrate had demonstrated that the degree of culpability
was
considered in his sentence in judgment. The non-mentioning of
that issue however does not necessarily mean it was not
considered.
At the end of the day the question that must be asked by this Court
is whether the alleged failure by the magistrate
amounted to
misdirection which led to the imposition of a sentence that is so
strikingly inappropriate that it induced a sense
of shock. In
other words, if the magistrate had properly considered the degree of
blameworthiness exhibited by the appellant
during the incident, he
would have found an appropriate sentence to be lesser than the one he
imposed.
It was
held by
Holmes, JA
in
S v Ntshiza
1970(4) All SA 12A at 19:
“
In cases of
culpa,
in considering the accused’s blameworthiness for the purpose of
sentence, one takes into account,
inter
alia,
the degree of his lack of care
which depends largely on the degree of foreseeability, just as in
considering blameworthiness in
a case of
dolus
eventualis,
one bears in mind,
inter
alia,
the degree of the foreseen
possibility of resulting death - its remoteness or proximity, see
S
v de Bruin en Andere,
1968(4) SA 498
(AD) at pg 511 C-E. As to foreseeability in the present
case, a knife is obviously a dangerous weapon
to wield it in the
circumstances of close (indistinct) the position in this case clearly
spelt potential danger to Wilfred, even
though the blow was directed
at Peter. In my view, foreseeability of possible injury and
resultant death to Wilfred was such
as to render this case of
negligence of a high order...”
The
Ntshiza
decision
supra,
involved the wielding of a knife, where the appellant aimed a blow
with a pocket knife at Peter who had provoked him. At
that
stage Wilfred who was standing very close to him moved forward
slightly to intervene and the stab landed on Wilfred’s
chest.
Wilfred fell on the ground and later died because the wound entered
his heart. The appellant in that case was
charged with murder.
He pleaded guilty of culpable homicide and was convicted as such.
The appellate division found five
years imprisonment to be an
appropriate sentence reducing it from 10 years and eight strokes that
were imposed by the trial court.
The
present case is that of a young man who was involved in a brawl with
Sivuyile and not with the deceased and no weapon was used
to attack
him. He left the fight to go to his room, but when he came back
he did so with a knife in hand and wielded a knife
in a room with
people. Sivuyile was not the only person present. He held
the knife in his right hand, hoping that its
presence would negate
any further attack to his person by Sivuyile. The appellant
states that his attention was focused on
Sivuyile the whole time.
He however goes on to state that: “Out of the corner of my eye
I noticed a shadow moving fast
towards me and I turned fast
instinctively stabbing in the direction of the person approaching me
from the couch, the deceased,
Thandazile Molefe.” He does
not say that he thought he was being attacked by the person
approaching him or by Sivuyile,
which would invariably trigger his
instinctive actions. To the contrary, he states that he did not
think he was in danger.
It
appears that he did not just “accidentally wield a knife”
in the direction of the shadow he saw, to ward off the
attack, he
instinctively ‘stabbed towards the direction of the ‘person
who approached’ from the couch, whom he
does not say he
believed to be Sivuyile nor or to be the person attacking him.
Therefore he knew that a person was approaching
and he stabbed
(instinctively) towards the direction of that person and did not take
necessary care and regard to the other people,
including the
deceased. His action clearly spelt potential danger to other
people and the deceased. The real reason
for stabbing in that
direction is not clearly explained.
It
cannot be said in my view that the degree of
culpa
was so slight that it fell within the band of momentarily lapse type
of cases. Here there was a deliberate act of carrying
a knife
in a room with people and a deliberate act of stabbing in the
direction of a person approaching from the coach, albeit
being
described as being instinctive.
The
appellant pleaded guilty, and is contrite about what he did to the
deceased. He is a first offender, youthful and a productive
member of the community. Provocation may well have affected his
judgment of taking care in regard to the deceased. Nevertheless,
reviewing all the considerations, both mitigating and aggravating and
balancing the interests mentioned by
Marais,
JA
in
Naidoo
supra,
I
do not consider the effective sentence of five years imprisonment
imposed by the magistrate to be so shockingly inappropriate
so as to
warrant interference by this Court.
While
it may appear that he magistrate failed to consider the degree of
culpability in his judgment and over-emphasized the seriousness
of
the offence, the cumulative consideration of all the relevant factors
indicate that the kind of sentence imposed by the magistrate
is not
one that can be characterised as being so far removed to what this
Court considers as appropriate.
In the
circumstances I am not convinced that the Magistrate exercised his
discretion improperly even if he imposed a sentence that
this Court
would not have preferred. In the result the appeal should fail.
I would
accordingly make the following order:
The
APPEAL
IS DISMISSED
and the
CONVICTION AND SENTENCE CONFIRMED
.
BOQWANA,
J
I
agree.
KOEN,
AJ