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Pieterse v S (A332/2016) [2017] ZAGPJHC 103 (22 March 2017)

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Criminal Law
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Brief Summary

Appeal — Sentence — Appeal against sentence for murder — Appellant convicted of murder and sentenced to 19 years’ imprisonment — Leave granted to appeal against sentence only, conviction not challenged — Court found no inherent jurisdiction to reassess conviction — Sentence deemed excessive as act was impulsive rather than premeditated, considering appellant's age and immaturity — Sentence of 19 years substituted with 10 years’ imprisonment.

Comprehensive Summary

Summary of Judgment


Introduction


This was an appeal to the Gauteng Local Division, Johannesburg, against sentence imposed following a conviction for murder in the magistrates’ court. The appellant was Phehello Jacob Pieterse, and the respondent was the State.


The appellant had been convicted of murder on the basis that he stabbed the deceased once in the neck. The magistrates’ court imposed a sentence of 19 years’ imprisonment. Leave to appeal against the conviction had been refused, but leave to appeal against the sentence was granted on petition to the High Court.


Although the appeal was formally directed at sentence, two preliminary points were raised that touched on the conviction, namely whether the appellant had been properly warned of the applicability of the prescribed minimum sentence regime, and whether the appeal court could intervene on conviction notwithstanding that leave to appeal against conviction had been refused. The central subject-matter of the dispute was therefore the appropriateness of the sentence imposed for murder under the prescribed minimum sentencing framework, together with the limits of an appeal court’s competence where the appeal is confined to sentence.


Material Facts


The killing occurred on 18 February 2012 at a tavern where alcohol had been consumed. It was common cause that the deceased was stabbed once in the neck and died as a result of that wound.


The prosecution case (as accepted by the trial court and treated as reliable by the appeal court) rested primarily on the testimony of Joseph Tsweni, who was in the tavern drinking and playing pool. He testified that he saw the appellant and a companion, Moithene Olifant, seated at a table. The deceased entered the tavern and stood near the doorway/juke box area. Tsweni’s account was that Olifant gave the appellant a knife, the appellant then went to where the deceased was standing near the doorway, and stabbed the deceased once in the neck. The deceased ran outside, mortally wounded. Thereafter a mob entered the tavern and assaulted Olifant outside, laying him beside the deceased.


The appellant’s account shifted materially over time and was internally inconsistent. At one stage he maintained that Olifant, not he, stabbed the deceased outside the tavern, and that Olifant returned into the tavern with a knife and informed him that he had stabbed the deceased. Later (after an extended adjournment in the taking of his evidence), the appellant stated that he saw the stabbing occur just outside the doorway, while he was behind Olifant, and that he ran away. He also eventually conceded that Olifant handed him a knife after the stabbing and asked him to hide it. The appeal court described the appellant as a “terrible witness” whose account was rightly rejected.


A further item that formed part of the evidentiary picture (and which the appeal court addressed insofar as it might affect the safety of the conviction) was the written statement of Nomwe Gama, tendered by consent at the instance of the defence because the declarant had died before testifying. She stated that she saw a group of men arguing next to the tavern, saw one man stab the deceased (her cousin), and saw the assailant run into the tavern, after which a mob entered and attacked “the suspect”. The statement did not identify the assailant.


The procedural history relevant to sentencing included that the appellant was 20 years old at the time of the offence, had been arrested the day after the incident, and spent approximately two years in custody awaiting trial. The appellant had been employed as a painter and supported his mother and three siblings.


Legal Issues


The court was required to determine, in substance, whether the magistrates’ court committed a misdirection in imposing sentence and whether the sentence of 19 years’ imprisonment was appropriate in light of the prescribed minimum sentence framework.


A preliminary legal issue arose concerning procedure and jurisdiction: whether an appeal court hearing an appeal on sentence only could, by invoking an “inherent jurisdiction” to prevent injustice, interfere with or re-open the conviction where leave to appeal against conviction had not been granted. This was primarily a question of law and procedural competence, rather than a re-determination of factual guilt.


On sentence, the dispute concerned the application of sentencing principles to the facts, including whether the murder was correctly treated as planned or premeditated, what inferences could properly be drawn from the nature of the wound, the form of intention proved, and whether substantial and compelling circumstances justified a sentence below the prescribed minimum.


Court’s Reasoning


The court first addressed the preliminary point concerning the warning about the prescribed minimum sentencing provisions. The appellant’s counsel contended that it was unclear whether a proper warning had been given, relying on the absence from the record of the relevant portion of the transcript. The court noted, however, that the magistrate’s judgment recorded that such a warning had been given and understood, and that a document in the record (annexure “D”, dated 21 February 2012) likewise recorded that the warning was administered. The appellant had also been legally represented throughout. In the absence of sworn evidence contradicting the record, the court regarded the suggestion that no warning had been given as unsustainable, and held there was no genuine risk that the interests of justice were undermined by the missing transcript segment.


The court then considered the attempt to impugn the conviction despite the appeal being confined to sentence. While acknowledging that courts have an inherent power to regulate their own processes and prevent injustice, the court held that this power could not be expanded into a competence to decide issues not properly before the court. It endorsed the approach in State v Van der Merwe 2009 (1) SACR 673 (C), which held that an appeal court may not interfere with a suspect conviction when that question is not before it. The court reasoned that access to an appeal court in relation to conviction and sentence from a magistrates’ court is regulated by statute, namely the procedures in sections 309(1), 309B, and 309C of the Criminal Procedure Act 51 of 1977. Because the statutory scheme comprehensively regulates the route to appellate reconsideration, there is no room or need to invoke inherent power to bypass that scheme. The court also referenced State v Sefatsa 1989 (1) SA 821 (AD) at 834E in support of the principled limits on resort to inherent power where legislation governs procedure. On the facts, however, the court was not persuaded that any failure of justice was apparent in relation to the conviction in any event, and therefore saw no need to defer the sentence appeal to facilitate further attempts to obtain leave on conviction.


Turning to sentence, the court held that the magistrate’s sentencing reasons were sparse and that the magistrate’s conclusion of premeditation rested essentially on the fact that the appellant was handed a knife and walked to the deceased to stab him. The appeal court accepted that this aspect could be considered, but held that, without more, the inference of premeditation was an exaggeration of what could reasonably be inferred from the totality of the circumstances. The court emphasised the context: the stabbing occurred in a tavern setting where alcohol had been consumed and the episode was more consistent with an impulsive act in the heat of the moment than with a planned killing.


The court also rejected the magistrate’s attempt to infer aggravating features from the wound on the basis that the knife penetrated the lung and therefore the stabbing was “hard”. The appeal court found that no evidence had been led to justify drawing conclusions about the force used from the medical outcome described, and observed that the neck is inherently a vulnerable area. Accordingly, the inference drawn by the magistrate from the wound was regarded as unjustified on the facts placed before the court.


In assessing the nature of the murder and the mens rea for sentencing purposes, the court stated that, in these circumstances, the murder was not “planned or premeditated” and that dolus directus had not been explored. On the evidence as it stood, the court concluded that no more than a reckless assault was established and that the intention proved was dolus eventualis. The court treated the contrary finding as a misdirection.


The court then addressed whether there were substantial and compelling circumstances to justify a sentence below the prescribed minimum. It took as the appropriate point of departure the 15-year minimum sentence, while recognising that the appellant’s two years in custody awaiting trial was a weighty factor because of the harshness of such detention. The court also placed significant weight on the appellant’s age of 20 at the time of the offence, holding that although he was no longer a youth, his immaturity should not be ignored. The court considered it relevant that he had held employment and supported his mother and siblings, which it treated as pointing away from an entrenched or “feral” criminal character.


Although intoxication was mentioned as a possible influence in the circumstances of the offence, the court held that the role of alcohol or drugs had not been explored at trial and therefore could not be relied upon at the appeal stage for sentencing; the court further indicated that, in any event, policy considerations limit the extent to which intoxication may mitigate culpability. Weighing all factors together, the court held that substantial circumstances existed to impose less than the prescribed minimum and considered 10 years’ imprisonment to be appropriate.


Outcome and Relief


The appeal against sentence was upheld. The sentence of 19 years’ imprisonment was set aside and replaced with a sentence of 10 years’ imprisonment, backdated to run from 5 February 2014.


No costs order was made.


Cases Cited


State v Van der Merwe 2009 (1) SACR 673 (C)


State v Sefatsa 1989 (1) SA 821 (AD)


Legislation Cited


Criminal Procedure Act 51 of 1977 (sections 309(1), 309B, 309C)


General Law Amendment Act 105 of 1997 (section 51, read with Part II of Schedule 2)


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that, where leave to appeal against conviction has been refused and the appeal is before the court on sentence only, the appeal court cannot invoke an inherent jurisdiction to interfere with the conviction outside the statutory appeal procedures regulating access to appellate adjudication.


On sentence, the court held that the magistrate misdirected himself by treating the murder as planned or premeditated on insufficient grounds, and by drawing unwarranted inferences from the nature of the wound. The court further held that the intention established on the evidence was no more than dolus eventualis, and that substantial and compelling circumstances existed, including the appellant’s relative immaturity at age 20 and the period spent in pre-trial custody, justifying a sentence below the prescribed minimum. The sentence was accordingly reduced to 10 years’ imprisonment.


LEGAL PRINCIPLES


The judgment applied the principle that statutory procedures governing appeals—in particular those in the Criminal Procedure Act regulating when and how conviction and sentence may be brought on appeal—are paramount, and that a court’s inherent powers to regulate process and prevent injustice cannot be used to circumvent or displace that legislated scheme.


It further applied the principle that findings of premeditation must be grounded in reasonable inferences drawn from the full factual context, and that a mere opportunity to reflect (such as receiving a knife and walking a short distance) does not, without more, justify characterising a murder as planned or premeditated, particularly in circumstances suggestive of impulsive violence.


The judgment also applied the principle that sentencing inferences drawn from medical consequences of a wound require an evidentiary foundation; absent evidence, conclusions about the force used or the offender’s intention based on the nature of the wound may constitute misdirection.


Finally, the judgment applied the principle that, within the prescribed minimum sentence framework, a court may impose a lesser sentence where substantial and compelling circumstances are present, and that factors such as the harshness of lengthy pre-trial detention and the offender’s relative immaturity (even at age 20) can be significant in that assessment, provided they are weighed against the seriousness of the offence and the overall circumstances.

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[2017] ZAGPJHC 103
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Pieterse v S (A332/2016) [2017] ZAGPJHC 103 (22 March 2017)

REPUBLIC
OF SOUTH AFRICA
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES
CASE
NO: A332/2016
In
the matter between:
PIETERSE,
PHEHELLO JACOB
APPELLANT
and
THE STATE
RESPONDENT
DRAFT JUDGMENT
Headnote
Appeal
against sentence for murder – leave granted on petition to this
court, leave on the conviction having been refused
Argument
advanced that correctness of conviction ought to doubted and appeal
court should exercise its inherent jurisdiction to
correct that
alleged error
Held:
on the facts no apparent error, however in any event it was well
established that no such inherent jurisdiction existed and
the
correct procedure in such circumstances was to seek leave from the
next highest court in judicial hierarchy – the law
restated
As
to sentence, the finding that the appellant’s act was
premeditated because he was handed a knife and walked over to the

decease to stab him was without more an exaggeration of the
reasonable inferences to drawn from the totality of circumstances –

stabling taking place in a tavern where alcohol had been consumed,
action more consistent with impulsive conduct
Moreover,
the inference drawn that the single stab in the neck was ‘hard’
and reflected on the form of the intention
not justified on the fasts
adduced
Appellant
20 at time of offence – although no longer a youth, immaturity
not to be ignored
Held:
Sentence of 19 years held to be inappropriate – sentence of ten
years substituted.
SUTHERLAND
J
INTRODUCTION:
[1]
The appellant, Phehello Pieterse was convicted of murder. He was
found to have stabbed the deceased once in the neck. He was
sentenced
to 19 years’ imprisonment. On petition, he was granted leave to
appeal against the sentence.
THE
CONVICTION
[2]
Two preliminary points were, nevertheless, raised in the appeal
concerning the conviction
per se
.
[3]
First, in counsel’s heads of argument, it was contended that it
was unclear whether the appellant had been properly warned
of the
implications of section 51 of the General Law Amendment Act 105 of
1997, read with part II of schedule 2, that he was at
risk of
imprisonment upon conviction of a minimum prescribed sentence of 15
years. This contention was based on the absence of
that part of the
transcription during which such a warning would have been given.
However, the judgment of the magistrate mentions
in the narrative of
the trial that such warning was given and understood. Moreover,
annexure ‘D’ in the record is a
document dated 21
February 2012 in which the presiding magistrate records that the
warning was given. In addition, the appellant
was represented
throughout the proceedings. In the absence of sworn evidence by the
appellant or his legal representative that
a warning was not
administered, that the judgment falsely states that it was, and that
annexure ‘D’ evidences a falsehood,
it seems to me that
an argument that no warning was given could not be sustained.
The argument advanced on appeal is
less than that; the proposition is
that it is merely unclear. In the context of what evidence that there
is of such a warning having
been given, the probabilities of it
having not been given are nil. We are satisfied that despite the
absence of a transcript recording
the actual exchange, which is
indeed regrettable, there is no genuine likelihood of it having not
been given and therefore no real
risk of the interests of justice
being undermined.  The point was not persisted with in argument.
[4]
The second argument related to whether the conviction was safe. In
this regard, the appeal court was invited to exercise its
inherent
jurisdiction to determine whether justice had failed. The court has
indeed an inherent power to prevent injustice and
to regulate its own
process. This scope of this power must however not be exaggerated.
There is much to be said for an appeal court
seized of an appeal on
sentence only to satisfy itself that the conviction is safe, but that
approach, which might be more properly
located within the realm of
judicial ethics, rather than be understood as an example of a
procedural duty, strictly construed,
cannot be elided into a power to
intervene without more. No court can pronounce on an issue not before
it. The invitation extended
to the court in this matter is not novel,
and as in the past, is unsubstantiated by any authorities to support
the proposition.
The very issue was raised in
State v Van der
Merwe
2009 (1) SACR 673
(C).
Tt was there held by a full bench
that it was not open to an appeal court to interfere with a suspect
conviction when that question
was not before it. The only way in
which the question of either conviction or sentence imposed by a
magistrates’ court can
come before an appeal court is upon
leave being granted, or if leave is refused, on petition to the high
court exercising appeal
jurisdiction, and if leave is refused by that
court, on petition to the Supreme Court of appeal. Logically, the
constitutional
Court must have the last word. This finding in Van der
Merwe is premised on the paramountcy in these matters of procedures
prescribed
in sections 309(1), 309 B, and 309C of the
Criminal
Procedure Act 51 of 1977
, which regulate access to an appeal court.
As the whole of the procedure to access an appeal court on the
question of conviction
and of sentence is regulated by the statute,
there is no room for nor any need to invoke the courts inherent power
in such matters.
(see too:
State v Sefatsa
1989 (1) SA 821
(AD) at
834E
) The proper approach is to defer the hearing on the appeal
against sentence to afford the appellant an opportunity to obtain
leave
from the appropriate court in the hierarchy.
[5]
The case advanced on behalf of the appellant is based on two points.
First, a major conflict in the evidence about where and
how the
stabbing of the deceased occurred, and second, whether the
appellant’s version that it was not he, but his companion,

Olifant that stabbed the deceased was properly disbelieved.
[6]
The killing occurred on 18 February 2012. Initially the appellant was
charged as accused no 2 with Moithene Olifant. Olifant
was in
hospital during the early remands; it emerged in evidence that he had
been attacked by a mob in retaliation for the attack
on the deceased.
The two accused were in custody. It appears that the trial may have
started on 26 February 2013, a year after
the incident, or if not so,
it began on 4 April 2013.
[7]
The charges against Olifant were withdrawn at some stage prior to
evidence being led. The J15 form states ‘5 February
2014’
but that date must be wrong as the trial was completed on that date,
and Olifant was not on trial.  The appellant
was in custody for
the whole duration of the trial having been arrested the day after
the incident.
[8]
Only two people testified. The evidence marshalled by the state
relied on the testimony of Joseph Tsweni. He was at a tavern,

drinking and playing pool. The appellant had recently become known to
him as they worked at the same place. He saw the appellant
and
Olifant, who he had known a long time, seated at a table. At about
18h00 to 19h00, the deceased entered the tavern and was
at the juke
box.  He saw Olifant give the appellant a knife (an allegation
mentioned first in cross examination and omitted
from his police
statement) and then get up from the table and walk to the doorway
where the deceased was standing. He then stabbed
him once in the
neck, after which the appellant returned to where he and Olifant were
seated. The deceased, mortally wounded ran
outside. Shortly
thereafter a mob entered the tavern and hauled Olifant outside where
he was laid beside the prone deceased and
assaulted.
[9]
Why did this happen? Tsweni infers that this incident was set in
motion by Olifant, earlier on, suggesting to the deceased’s

girlfriend that they have sex. The deceased was angered by this.
Tsweni claims to have witnessed Olifant speak to the girlfriend
in
the deceased’s presence. Later in his evidence he said Olifant
and one ‘Zigs’ who was with Olifant and the
appellant at
some stages, was outside when the deceased entered the tavern.
[10]
The appellant’s version was that the affair began when Zigs,
not Olifant, spoke to the girlfriend of the deceased.  This
was
about 19h00. An argument ensued. The appellant and Olifant intervened
to stop it escalating. Later, the deceased came into
the tavern and
called Olifant. They went outside.  The next thing to occur was
a commotion from outside. The appellant saw
Olifant re-enter the
tavern, knife in hand. Olifant said he stabled the deceased.
Tsweni, who was inside the tavern during
these events, then went
outside and never returned. The appellant’s further evidence is
incoherent. He says he went off to
the market to buy cigarettes (when
in the sequence of events is unclear) could not find any and when he
returned to the tavern,
a mob was pelting it with stones. He also
relates being seen at the market by the deceased’s friends and
chased. To add to
the confusion, he relates how the tavern owner
expelled Olifant and him because of the stone throwing.  He
refers to a fight
at about 20h00, but what component of the events he
means is obscure; the fight was between Zigs and the deceased (does
this mean
the initial altercation?) and it happened before he went
for cigarettes. On his return to the tavern he related the pursuit by
the deceased’s friends to Olifant. Upon hearing this account,
Olifant said he would stab the deceased (who, ostensibly, was
not
with the ‘friends’ in the pursuit of the appellant).
[11]
The taking of the appellant’s evidence commenced on 18
September and was resumed on 3 February 2014, three and a half
months
later. Upon resumption, he now said he saw the stabbing occur just
outside of the doorway of the tavern. He was behind Olifant
when he
did so, and he then ran away. The cross examination took place on 3
February 2014. His account did not improve. It was
now said the stone
throwing happened before the stabbing and was somehow a precipitating
cause of the stabbing. He was tackled
on his evidence about being
told by Olifant that he had stabbed the deceased which did not accord
with his more recent account
of seeing it. Bizzarely, he said that he
did not know who was stabbed and Olilfant had to inform him, because
of the absence of
light at the doorway. He now conceded that Olifant
handed him a knife, but that was afterwards and Olifant asked him to
hide it.
It was when they both tried to run off, the mob caught
Olifant. He now also denied returning to the tavern, but also says be
changed
his clothing and then returned, in the expectation he would
not be recognised.
[12]
The upshot is that the appellant was terrible witness, and his
account was rightly rejected. The sole rationale offered for
Tsweni
falsely implicating him was that Tsweni is an old friend of Olifant
and was protecting him. That is a danger that needed
to be assessed.
However, on a holistic conspectus of the evidence was correctly not
taken as displacing the account given.
[13]
An exceptional additional event occurred in the trial. The statement
of Nomwe Gama, who had died before being able to render
her evidence
was handed in by consent at the instance of the defence. The
statement was attested on 18 February 2012 at 23h23,
ie hours after
the killing. She said she was a vendor in the vicinity of the tavern.
She saw a group of men arguing next to the
tavern. She saw one man
take out a knife and stab the deceased, her cousin.  The
assailant ran into the tavern. She sounded
the alarm, and a mob went
into and attacked ‘the suspect’. She concerned herself
with rendering aid to the deceased,
and relates no more about the
critical events.
[14]
Can this untested testimony influence the outcome of the case? The
incident is said to have happened next to the tavern. This
does not
mean that the evidence that it happened at the doorway is
contradicted. She does not identify the ‘suspect’
and it
is not an inference that can be made from her statement that she
could have identified anyone. Noone from the crowd of men,
apparently
in proximity to the argument, testified. The targeting of Olifant who
must have been the ‘suspect’ she cryptically
alludes to
is explained, on the probabilities, by the encounter with the
girlfriend. In this respect, the appellant’s evidence
is
contradicted that it was zigs who affronted her or the deceased.
[15]
In our view, the conclusions reached by the court
a quo
on the
conviction are not seriously in doubt.  No failure of justice is
apparent. Accordingly, no need arises to defer the
hearing on the
sentence or to facilitate a further attempt to obtain leave against
the conviction.
THE
SENTENCE
[16]
The judgment on sentence says very little.
[17]
The magistrate considered the question of premeditation. This was
premised on the notion that he was handed a knife and went
over to
the deceased to stab. That is an aspect correctly addressed. However,
there was no plan to kill the deceased, rather the
episode is yet one
more wholly stupid, irresponsible act by a young man over a
triviality.  The act was not a reflex action,
but it seems to me
to be plainly an impulsive act carried out in the heat of the moment.
[18]
The remarks of the magistrate that seek to draw inferences from the
wound that was inflicted are unpersuasive. The knife penetrated
the
lung. The notion that this means it was a ‘hard’ stabbing
or that anything is to be inferred from a ‘hard’

stabbing’ is obscure. No evidence was led to suggest that a
stab in the neck which penetrates the lung implies any particular

force. The neck is, self-evidently, a vulnerable spot.
[19]
In such circumstances, the murder was not ‘planned or
premediated’. Indeed, whether there was
dolus directus
by the appellant was not explored at all.  The evidence such as
it is, in our view, establishes no more than a reckless assault
and
the intention thus proven is
dolus evenualis
. Accordingly, the
finding is a misdirection.
[20]
As regards factors which might serve as substantial or compelling
reasons not to apply the prescribed sentence regime, the
appellant’s
age, ie 20 years, at the time of the commission of the offence is
mentioned. He spent two years in custody awaiting
trial. He had been
working as a painter.
[21]
Absent entirely is an assessment of the role of intoxication in the
whole affair.  That liquor or drugs may have been
an influence
is not improbable, but for sound policy reasons that cannot be
allowed to diminish culpability. The question of intoxication
was
raised in the appeal. In my view, the role that liquor played, if at
all, having not been explored in the trial, cannot be
now relied on
for sentencing purposes, even if policy reasons did not temper the
weight to be attached thereto.
[22]
The appropriate point of departure, is the 15 year minimum sentence,
making allowance for the two years in custody awaiting
trial. That
experience is notoriously harsh. Moreover, the immaturity of a 20
year-old must be seriously weighed. This 20 year-old
had held down a
job.  He supported a mother and three siblings. This factor
points way from a feral character. Weighed together,
I am of the view
that substantial circumstances exist to impose a sentence less than
the prescribed minimum.
[23]
In my view a term of 10 years is appropriate.
THE
ORDER
1.
The appeal
against sentence is upheld.
2.
The
sentence of 19 years is set aside and substituted with a term of 10
years imprisonment, calculated from the date of the sentence,
5
February 2014.
_______________________
Sutherland
J
Judge
of the High Court,
Gauteng
Local Division, Johannesburg
I
agree.
______________________
Shangisa
AJ
Acting
Judge of the High Court,
Gauteng
Local Division, Johannesburg
Hearing:
16 March 2017
Delivered:
22 March 2017
For
the Appellant:
Adv
L Van Niekerk,
Instructed
by Legal aid South Africa.
For
The State:
Adv
B Serepo.

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