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[2014] ZAGPJHC 138
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Ngale v S (A442/2013) [2014] ZAGPJHC 138 (23 July 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A442/2013
In
the matter between:
MONAMODI
ERIC
NGALE
..........................................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
J
U D G M E N T
RATSHIBVUMO
AJ:
1.
Mr. Ngale, the appellant, was sentenced to
life imprisonment on 21 October 2009 following a conviction by the
Tembisa Regional Court
on a charge of murder. He was legally
represented throughout the trial. On 24 March 2011, an application
for leave to appeal was
brought before the trial court. The trial
court was mindful of the provisions of sec 309 (1) (a) (ii) of Act 51
of 1977 which provides
for the automatic right to appeal in cases
where life imprisonment is imposed by the Regional Court when it
granted the application.
Sec 309 (1) (a) (ii) of Act 51 of 1977
provides,
“
309.
Appeal from lower court by person convicted.
—
(1)
(
a
)
Subject to
section
84
of the Child Justice Act, 2008 (
Act
No. 75 of 2008
),
any person convicted of any offence by any lower court (including a
person discharged after conviction) may, subject to leave
to appeal
being granted in terms of
section
309B
or
309C
,
appeal against such conviction and against any resultant sentence or
order to the High Court having jurisdiction: Provided that
if that
person was sentenced to imprisonment for life by a regional court
under
section
51 (1)
of the Criminal Law Amendment Act, 1997 (
Act
No. 105 of 1997
),
he or she
may
note such an appeal without having to apply for leave in terms of
section
309B
:
Provided further that the provisions of
section
302 (1) (
b
)
shall apply in respect of a person who duly notes an appeal against a
conviction, sentence or order as contemplated in
section
302 (1) (
a
)
.”
[
own
emphasis
].
Although
this legislation was only passed in 2013, it is deemed to have come
into operation on 01 April 2010 (see sec 43 (2) of
Act 42 of 2013).
The appeal is therefore against the sentence of life imprisonment.
2.
It was submitted on behalf of the appellant
that the appeal should succeed in that the charge sheet did not
allege that the murder
was planned or premeditated or that it
attracted the sentence of life imprisonment; although this was the
finding made by the trial
court. It was further argued that the
reference made to section 51 of Act 105 of 1997 was ambiguous since
the said section contains
the minimum sentence of 15 years
imprisonment and life imprisonment under certain circumstances.
3.
It is necessary to consider the facts that
gave rise to the conviction and a finding to the effect that the
murder was premeditated
or planned before considering the reference
to Act 105 of 1997 (the Act) in the charge sheet. The facts that gave
rise to the conviction
are the following; on 28 February 2006, the
deceased realised that the money she had left in her place of abode
(in Ivory Park)
was missing. According to her, the appellant was the
only person who knew about the presence of such money in the house.
It appears
as if the appellant may have been close to the deceased’s
husband who was arrested at that stage since he had attended to
his
court proceedings earlier on that day in the company of the deceased
and other family members.
4.
Upon realising that money was missing, the
deceased confronted the appellant about it demanding that he should
return it. Eventually
the appellant promised that he would return the
money back to the deceased in the evening of the same day, but he did
not. The
next morning around 6 am, the deceased was shot and died on
the spot by the appellant at her home. This was after she left the
house to attend to laundry outside. The only altercation that her
relatives who were still in the house heard between her and the
appellant were her pleas to be spared her life. By the time they went
out the deceased was already dead and the appellant was running
away.
5.
This was the version of the State which,
though challenged during trial, no appeal was noted against the
finding by the trial court
which accepted it. Counsel for the
appellant conceded that this was unchallenged on appeal because the
trial court correctly accepted
the State’s version.
6.
It is now common cause that the reason the
deceased was murdered was over her accusations of the appellant that
he stole her money.
It was however submitted on behalf of the
appellant that that such was the confrontation that took place on the
day she was killed.
The State contends that such was the
confrontation that took place a day before. A finding as to when the
confrontation took place
has a bearing on the ultimate finding by the
court a quo
that the murder was premeditated. Whereas the appeal was noted only
in respect of the sentence, the conviction was also challenged
in as
far as the finding by the trial court was made to the effect that
that the appellant was guilty of premeditated murder.
7.
In
S v Ndlovu
case no. A593/2013 handed down on 06 June 2014 by the this court,
Wright J held the following:
“
In
my view it is clear that the appellant enjoys an automatic right to
appeal his sentence. It seems to me that the words
such an appeal
include an appeal against conviction, a sentence of life imprisonment
imposed by a regional magistrate and an order. They are not
limited
to an appeal against a life sentence. Absent the imposition of a life
sentence, leave is needed for any appeal. The words
sentence to
imprisonment for life
are descriptive of the person seeking to
appeal. They do not qualify what is sought to be appealed.”
And
in
S v Bangala
(A412/2013) [2014] ZAGPJHC 86 (17 April 2014),
this court held
per
Mashile J that;
“
In
terms of
Section
309(1)(a)
of the
Criminal
Procedure Act 51 of
1977
,
the Appellant became entitled to an automatic right to appeal against
both his conviction and sentence. This appeal accordingly
concerns
his conviction and sentence.”
I
agree with the views by my learned brothers above. It is therefore
within the rights of the appellant to challenge both the conviction
and the sentence as he deems appropriate.
8.
It was argued that the appellant had a firearm
with him for the purpose of undergoing an interview for a position as
a security
officer. This version was rejected by the court
a
quo
and in my view, rightly so. Even if
it could be assumed in favour of the appellant that a licence for a
firearm might not have
been sufficient proof that he owned a firearm
for job interview purposes; he had no business to do at the
deceased’s place
of abode that morning. From the record of
proceedings, it appears that the accused “…thought that
because of the deceased
has been phoning me the previous day
demanding some money, I thought that it was wise to go pass them and
see them (sic).”
He then proceeded to describe how he was
fought by the deceased’s in laws who were present there.
9.
This version was rejected because,
inter alia
, the witnesses
who were there testified that they did not see the actual shooting.
They also disputed that any altercation might
have taken place in
their presence saying the only words uttered by the deceased were to
the effect that “Eric, do not kill
me.” I cannot find any
misdirection on the trial court in accepting the State version in
this regard.
10.
Even if it was to be accepted that the
appellant was on his way for the job interview when he diverted to go
see his accuser, the
deceased; I do not see how this would alter the
fact that the reason he decided to divert from his way to go meet the
deceased
was over the previous day’s confrontation. He
obviously was not going there to refund her the stolen money, for he
did not
do that and does not even make such allegation. He did not go
there to make a verbal confrontation, for there was none heard by
the
witnesses. He obviously was there to do what he did which, given the
time that lapsed from the time of what he now describes
as a
provocation (accusation of theft of money a day earlier) until the
murder, points to premeditation and planning. In
S
v Mgibelo
2013 (2) SACR 559
(GSJ) this
court held that 16 hours that lapsed from the incident that could be
said to be the provocation of the accused (finding
her lover with
another woman in bed) to the time she committed the murder was enough
time to conclude premeditation and planning
on her part. The court
also found life imprisonment was the only appropriate sentence.
11.
The next aspect is the omission in the
charge sheet to indicate if the applicable prescribed sentence would
be in terms of section
51 (1) or 52 (2) of the Act. The need for the
State to stipulate clearly the legislation it intends relying on for
sentencing purpose
has been stated in several decisions of this court
and by the Supreme Court of Appeal. In
S
v Makatu
2006 (2) SACR 582
(SCA) the
court set aside the sentence of life imprisonment imposed by the
trial court after considering,
inter
alia
, that the charge sheet did not
stipulate that the State would seek life imprisonment in case of
conviction. The charge sheet instead
referred to section 51 (2) of
the Act which provides for prescribed sentence of 15 years
imprisonment. Upon conviction the accused
was surprised to find that
he was sentenced to life which is provided under section 51 (1) of
the Act. (See also
S v Mashinini and
another
2012 (1) SACR 604
(SCA) where a
similar misdirection on the part of trial court was pointed out on
appeal.).
12.
This case is however distinguishable from
Makatu
and
Mashinini
decisions. Unlike in
Makatu
and
Mashinini
,
the accused was not misled to believe that the court would be bound
to sentence him in accordance with the provisions of sec 51
(2) of
the Act. Instead, the charge sheet referred to sec 51 of the Act
which contains both 15 years imprisonment in certain circumstances
and life imprisonment in others.
13.
Whereas in
S v
Ndlovu
2003 (1) SACR 331
(SCA), Mpati
JA emphasised the need of the accused, in particular the
unrepresented accused, to be forewarned of the prescribed
sentences
applicable at the beginning of the trial. But when the accused is
legally represented, it can be reasonably accepted
that the legal
representative informed the client of all the rights and the
provisions in the penalty clause. In
S v
Mvelase
2004 (2) SACR 531
(W) Borchers
J held that;
“
These
matters do not have to be explained to an accused who is represented,
for the simple reason that a legal representative is
a legally
qualified person who is expected to know the law. It would, in my
view, be a sad day indeed if a presiding officer were
to be required
to assume the incompetence of legal representatives and was thus
required to treat the accused as if he were unrepresented.”
14.
While the charge sheet made reference to
section 51 of the Act, there is no suggestion that the appellant’s
legal representative
chose to advise the appellant of just a portion
of the provisions therein and if so, why he chose that portion over
another. Had
the appellant been unrepresented, it would have been the
trial court’s responsibility to explain all those penalty
provisions
to the appellant. Resultantly, this argument also has to
fail.
15.
It is trite that the imposition of sentence
is pre-eminently a matter within the judicious discretion of a trial
court. The
appeal court’s power to interfere with a
sentence is circumscribed to instances where the sentence is vitiated
by an irregularity,
misdirection or where there is a striking
disparity between the sentence and that which the appeal court would
have imposed had
it been the trial court. The mere reason that the
sentence imposed is not what the appeal court would have imposed does
not justify
interfering with this discretion. See generally:
S
v Petkar
1988 (3) SA 571
(A),
S
v Snyder
1982 (2) SA 694
(A) and
S
v Sadler
2000 (1) SACR 331
(SCA) and
Director of Public Prosecutions, KZN v P
2006 (1) SACR 243
(SCA) para 10.
16.
It appears from the record that the trial
court took into consideration all factors expected of it in
accordance with
S v Zinn
1969 (2) SA 537
(A) in that personal circumstances of the offender,
the interests of the society and the crime convicted of appear from
the record
to have been given due weight. It is also clear that the
appellant lacks remorse for the crime he was convicted of, having
protested
his innocence to the end – see
S
v Matyityi
2011 (1) SACR 40
(SCA). I do
not see any misdirection on the part of the trial court in not
finding substantial and compelling circumstances justifying
a lesser
sentence than the prescribed one.
17.
In the result I propose making the
following order:
The
appeal is dismissed.
_____________________
TV
RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
I agree and it is so
ordered.
_______________________
H MAYAT
JUDGE OF THE HIGH
COURT
FOR
THE APPELLANT : ADV EA GUARNERI
INSTRUCTED BY :
LEGAL AID SOUTH AFRICA
JOHANNESBURG
JUSTICE CENTRE
FOR
THE RESPONDENT : ADV RG MUVHULAWA
INTRUSCTED
BY : DIRECTOR OF PUBLIC
PROSECUTIONS
JOHANNESBURG
DATE
HEARD: 22 JULY 2014
JUDGMENT
DELIVERED: 23 JULY 2014