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[2016] ZAGPJHC 52
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Hlongwane v S (A277/2015) [2016] ZAGPJHC 52 (10 March 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: A277/2015
DATE: 10 MARCH 2016
In the matter between:
HLONGWANE, NTSIKELELO
ALFRED
.....................................................................
APPELLANT
Versus
THE
STATE
....................................................................................................................
RESPONDENT
J U D G M E N T
TWALA AJ
[1] On 11 July 2014 the appellant was
convicted of murder by the Magistrate Court sitting in Roodepoort and
was on the 21 August
2014 sentenced to fifteen (15) years
imprisonment in terms of Section 51 of the Criminal Law Amendment
Act, Act 105 of 1997 (the
CLAA). He was further declared unfit to
possess a firearm in terms of Section 108 of the Firearms Control
Act, Act 60 of 2000.
He was legally represented and now appeals
against the sentence only pursuant to the leave to appeal granted by
the court a quo.
[2] It is common cause that the
deceased and the appellant had a love relationship as a result
whereof two (2) children were born.
The love relationship between
the appellant and the deceased is described by the mother of the
deceased as a rocky one. Although
the appellant had free access to
the house where the deceased lived with her mother and her children,
he did not live there permanently
with the deceased. At some point
the deceased was arrested in Randburg and the appellant did not go to
the police station to assist
her. It is Mr Msizi Mtumba (MTUMBA), the
first witness, who went to the police station to assist the decease.
[3] It appears from the record that
Mtumba and the deceased had a love relationship. The deceased had
already parted ways with the
appellant and had moved on with her
life. On the day in question the deceased had requested Mtumba to
take her to the school of
her children as she was called in by the
school. When Mtumba arrived at the home of the deceased, she was
alone and they decided
to have sex. Whilst they were busy with
foreplay, Mtumba heard a noise coming from the window. The window
pane was broken and they
used a plastic to close it. Mtumba heard
someone removing the plastic and pulling the curtain through the
broken window pane. He
jumped off the bed and saw the appellant
pointing a gun at them through the broken window pane. He ran away
and hid in the ceiling
in another room. He heard gun shots and he was
hit in the foot. He called for help from his children and reported to
the mother
of the deceased that the appellant had shot at them. At
the time he did not know if the deceased was shot or whether she was
alive
or not. He only realised that the deceased had died when he
came back to the house after he went to the police station to report
the incident. He knows the appellant by sight as he saw him when he,
Mtumba, visited the deceased in Florida.
[4] The appellant’s version was
that the deceased was his wife since he paid lobola for her. They
have two children born of
the relationship. He was living with the
deceased at a backroom in the same yard where this incident occurred.
On the day in question
he left the house to fetch seats of his
vehicle. When he came back he could not find the keys to the house
where they normally
leave them. He knocked on the door but there was
no answer. When he was about to leave the yard, he heard the deceased
screaming
from the main house. He approached the room where the
screams came from, removed the plastic on the window and moved the
curtain.
He saw a naked man on top of the deceased and he thought he
was raping her. He pulled out his licensed firearm and fired a shot
at them. He then left and reported the incident to the Roodepoort
police. He did not render any assistance to deceased after he
fired
the shot in the room nor did he bother to check if anyone was hit by
his shot.
[5] The personal circumstances of the
appellant were placed before the court by a Social Worker who
compiled a pre-sentencing report.
She testified that the appellant
is 44 years old, has two (2) children. The eldest child is 15 years
old and is presently living
with the appellant and the young one is
living with the mother of the deceased. He has another child with his
current girlfriend.
He is the eldest child in a family of 8 and has
passed standard 6 at school. He is a taxi operator and earns between
R7000 and
R10 000 per month. His girlfriend works for a construction
company and earns a sum of R5000 per month. He looks after his
younger
sister who is mentally retarded. He suffers from a kidney
condition for which he requires prescription medicine.
[6] It is trite that sentencing is a
matter pre-eminently in the discretion of the trial court. The appeal
court may only interfere
with the sentence imposed by the trial court
only if the court a quo did not exercise its discretion reasonably or
if the sentence
is shockingly inappropriate. In this regard see the
case of S vs Matlala
2003 (1) SACR 80
(SCA).
[7] The question that needs to be
answered in the present case is whether the court a quo has taken
into account all the relevant
personal circumstances of the accused.
In the case of Zinn vs State
1969 (2) SA 537
(A) the court stated
that:
“What has to be considered is
the triad consisting of the crime, the offender and the interests of
society.
[8] In S vs Malgas
2001 (1) SACR 469
(SCA) the court stated the following:
“Section 51 of the CLAA has
limited but not eliminated the courts’ discretion in imposing
sentence in respect of offences
referred to in Part 1 of Schedule 2.
Courts are required to approach the imposition of sentence conscious
that the legislature
has ordained life imprisonment or the particular
prescribed period of imprisonment as the sentence that should
ordinarily and in
the absence of weighty justification be imposed for
the listed crimes in the specified circumstances”.
The court continued to state that:
“Unless there are, and can be
seen to be, truly convincing reasons for a different response, the
crimes in question are therefore
required to elicit a severe,
standardised and consistent response from the courts. The specified
sentences are not to be departed
from lightly and for flimsy reasons.
All factors traditionally taken into account in sentencing (whether
or not they diminish moral
guilt) thus continue to play a role; none
is excluded at the outset from consideration in the sentencing
process”.
[9] The unchallenged evidence of the
pathologist is that the deceased suffered a seven millimetre
penetrating laceration surrounded
by colour abrasion one centimetre
below the left eye. The wound was surrounded by tattooing which
extended for seven centimetres
medial to wound, three centimetres
superior to the wound, 4.5 centimetres lateral to the wound and for
4.5 centimetres inferior
to the wound. This gives one an idea of the
distance from which the shot was fired. It is what is called a near
shot within one
arm’s length and with an average gun using
average ammunition. One would estimate the distance as between 30 to
60 centimetres.
[10] It is on record that the appellant
did not enter the house after firing a shot at the people in the
house to find out if any
of them was injured. He knew that he shot
the deceased in the face for he was only 30 to 60 centimetres away
from her.
The court stated the following in the
Obisi’s case supra:
“…the nature of the crime,
the brazenness, the callousness and the brutality of the appellant’s
conduct show
that he attaches no value to other people’s lives,
or physical integrity, or to their dignity”.
[11] Counsel for the appellant argues
that the appellant is a breadwinner and has two children with the
deceased and one with his
girlfriend. The court a quo has failed to
take into account the interest of the children when sentencing the
appellant. The interests
of the minor children are of paramount
importance in any matter that affects them.
[12] In the case of S vs M (CCT 53/06)
[2007] ZACC 18
;
2008 (3) SA 232
(CC) the court stated the following:
“The question to be asked is,
what are the duties of the sentencing court in the light of Section
28 of the Constitution of
the Republic of South Africa and any
relevant statutory provisions when the person being sentenced is the
primary care giver of
the minor children”.
[13] In the present case the question
that needs to be answered first is whether the appellant is the
primary care giver of the
minor children of the deceased or that of
his girlfriend.
[14] It is on record that the deceased
lived with her children in her mother’s house and the appellant
would only visit them
there. On the day the deceased was killed, she
had an arrangement with Mtumba to accompany her to the school of her
children. If
the appellant had any interests of the children at
heart, it would have been him attending to the school of his children
with the
deceased. It cannot be said now that after he killed the
mother of his children, that qualifies him as a primary care giver of
the minor children since he is the surviving parent.
[15] The death of the mother of the
minor children in this case was caused by the deceased callously. As
a result the minor children
of the deceased have suffered loss of
maternal and emotional support. It is on record that the siblings are
now separated, the
15 year old girl lives with the father and the
younger one with its maternal grandmother. The appellant has
disrupted the lives
of these children and unfortunately he cannot
therefore use their plight for his benefit.
[16] It is my view therefore, that this
case is distinguishable from the case of S vs M supra in that the
appellant is not a primary
care giver of the minor children and
therefore the interests of the minor children cannot be taken as a
factor that is substantial
and compelling the court to deviate from
imposing the minimum sentence as prescribed by section 51 of the
CLAA.
[17] I agree with the court a quo that
the appellant did not show any remorse in this case. He maintained
throughout the trial that
he thought the deceased was being raped by
Mtumba and wanted to protect her. Only when he was interviewed by the
social worker
did he admit that he shot the deceased because he was
angry and felt rejected by the deceased.
[18] In the case of S vs Banda
1991 (2)
SACR 325
(B) the court stated the following:
“The court fulfils an important
function in applying the law in the community. It has the duty to
maintain law and order.
The court operates in society and its
decisions have an impact on individuals in the ordinary circumstances
of daily life. It covers
all possible ground. There is no space in
life it does not include. The court must also by its decisions, and
imposition of sentence
promote respect for the law, and in doing so
must reflect the seriousness of the offence, and provide just
punishment for the offender
while taking into account the personal
circumstances of the offender. The feelings and requirements of the
community, the protection
of society against the accused and other
potential offenders must be considered as well as the maintenance of
peace and tranquility
in the land needs to be taken into account”.
[19] The society calls for protection
of women and children because of their vulnerability. There are
campaigns by different groups
in the society for the protection of
women especially from the people they know and trust. A lot of money
is spent in such campaigns.
The courts are enjoined to deal
decisively with people like the appellant who brazenly kill the women
they claim to love.
[20] I agree with the court a quo that
there are no compelling and substantial circumstances in this case
that compelled the court
to deviate from sentencing the appellant to
a period of fifteen (15) years as prescribed by the section 51 of the
Criminal Law
Amendment Act.
[21] It is therefore my view, that the
court a quo did not misdirect itself and that the sentence imposed is
appropriate in the
circumstances.
[22] In the circumstances, I propose
the following order:
The appeal is dismissed.
TWALA
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
I agree and it is so ordered,
HEATON - NICHOLLS J
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Counsel for the Appellant : ADV.
M.D. BALOYI
Instructed by : MOKGOBI ATTORNEYS
INC
Tel : 011 760 6169
Counsel for the Respondent : ADV. J
STEYN
Instructed by :DIRECTOR OF PUBLIC
PROSECUTIONS
Tel : 011 220 4069
Date of Hearing : 8 MARCH 2016
Date of Judgment : 10 MARCH 2016