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[2018] ZAGPJHC 32
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Matjilo v S (A250/2017) [2018] ZAGPJHC 32 (5 March 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
DATE:
05 MARCH 2018
CASE
NO: A250/2017
In
the matter between:
AUBREY
THABO MATJILA
Appellant
and
THE
STATE
Respondent
Summary
An
appeal against life imprisonment imposed
by
the Gauteng Local
Division
of the High Court for murder read
with section 51 of Act 105 of 1997. Minimum sentence of life
imprisonment not applicable where
murder was found not to have been
planned or premeditated or where the death of the victim was not
caused by the accused in committing
or attempting to commit robbery
with aggravating circumstances as defined in section 1 of the
Criminal Procedure Act, 1997 (Act
51 of 1997). Trial Court
imposing life imprisonment in the circumstances constituting a
misdirection and on appeal the court
will be at large to consider
sentence afresh upon finding that a misdirection occurred.
Order
1.
The appeal against sentence is upheld.
2.
The sentences imposed by the trial court are set aside and replaced
with the following:
(a)
In respect of
count 2 (murder) the accused is sentenced to 20 years’
imprisonment.
(b)
In respect of
count 3 (unlawful possession of a firearm) the accused is sentenced
to 3 years’ imprisonment.
(c)
In respect of
count 4 (unlawful possession of ammunition) the accused is sentenced
to 3 years’ imprisonment.
3.
The sentences are antedated to 19 November 2004 in terms of
section
282
of the
Criminal Procedure Act 51 of 1977
.
JUDGMENT
COLLIS
J (MOKGOATLHENG J and VAN DER WESTHUIZEN AJ concurring)
[1]
The appellant, Mr
Aubrey Thabo Matjila appeared
in
the Gauteng Local Division of the High Court before Justice Van
Oosten,
on the
following charges:
[1.1] Count 1: Attempted Robbery with aggravating
circumstances as defined in
section 1
of Act 51 of 1997 and read
together with section 51 of Act 105 of 1997;
[1.2]
Count 2: Murder read with section 51 of Act 105 of 1997
;
[1.3]
Count 3: Contravention of section 2 read with sections 1 and 39 of
Act 75 of 1969-Unlawful possession of an arm; and
[1.4]
Count 4: Contravention of section 36 read with sections 1 and 39 of
Act 75 of 1969-Unlawful possession of ammunition.
[2]
The appellant who was legally represented pleaded not guilty to all
the charges and gave a plea explanation.
He
was subsequently
convicted on
counts 2, 3 and 4
and
acquitted on count 1.
[3] On
the
19
th
of November 2004 he was sentenced
as
follows:
[3.1]
Count 2:
Life imprisonment.
[3.2]
Count 3 and 4: Three years’ imprisonment. The counts
having been taken together for the purposes of sentence.
[4]
The appellant applied
for leave to appeal against conviction and sentence. Van Oosten J
refused the application. The appellant subsequently
approached the
Supreme Court of Appeal in pursuance of his appeal. On 3 May 2017,
Shongwe JA and Coppin AJA refused the appellant
leave to appeal his
conviction but granted him leave to appeal the sentence of life
imprisonment imposed on him, to the Full Court
of this Division.
[5]
The genesis of the convictions and the sentences arose from events
which occurred on 26 November 2003. The appellant, armed
with a
firearm had entered the shop of the deceased and without any further
ado, jumped over the counter behind which the deceased
was standing.
The appellant pointed his firearm to the deceased without saying a
word to the deceased. The deceased pulled
the accused’s
arm aside and a fatal shot went off which struck the deceased in his
arm.
[6]
In sentencing the appellant, the trial court had found that the
accused showed no remorse and had also found that the offence
of
murder was premeditated.
[1]
Ex facie
the record it is apparent that the trial court took into account the
personal circumstances of the accused albeit scanty, the nature
and
seriousness of the offences as well as the interests of society.
[7]
For the purposes of judgement on sentence, the following personal
circumstances of the appellant appear to have been placed
on record:
[7.1] the appellant was 22
years old at the time when he was sentenced;
[7.2]
the appellant was unmarried, with no dependents;
[7.3]
he attended school in Lesotho and only reached Grade 7;
[7.4]
he was part-time employed and earned an income of between R45 to R 50
per day;
[7.5]
the appellant was a first offender;
[8]
The sum total of the mitigating factors placed before the sentencing
court were his personal circumstances, his age and there
being no
previous convictions against him.
[2]
[9] The
appellant’s attack against the sentence is effectively that the
sentence is shockingly harsh and inappropriate and
not justified in
the circumstances.
[10]
Counsel for the appellant submitted that
the
age of the appellant, his time spent in custody and him being a first
offender cumulatively constituted substantial and compelling
circumstances, justifying a deviation from the prescribed minimum
sentence and warranting the imposition of a lesser sentence.
[3]
[11]
Counsel for the respondent on the other hand had submitted that
the
youthfulness of the offender will invariably be a mitigating factor
unless it appears that the viciousness of his deeds rules
out
immaturity. The younger the offender, the clearer the evidence needs
to be about his background, education, level of intelligence
and
mental capacity in order to enable a court to determine the level of
maturity and therefore moral blameworthiness.
[4]
[12]
Counsel further
submitted that during the trial there was no evidence presented upon
which it can be inferred that the accused’s
youthfulness and
immaturity can operate as a compelling and substantial circumstance
in order to deviate from the minimum prescribed
sentence.
[13]
In determining this appeal and as a result of the trial court having
concluded that the murder was premeditated and planned
the provisions
of
Section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
needs
mentioning. It provides as follows:
“
(1)
Notwithstanding any other law, but subject to subsections (3) and
(6), a regional court or a High Court shall sentence a person
it has
convicted of an offence referred to in
Part 1
Schedule 2 to
imprisonment for life.
Murder,
when-
(a)
it was planned
or premeditated;
(b)
………………………………
..;
(c)
The death of the
victim was caused by the accused in committing or attempting to
commit or after having committed or attempted to
commit one of the
following offences:
(i)
…………………………………………
.
(ii) robbery with aggravating
circumstances as defined in section 1 of the Criminal Procedure Act,
1977 (Act 51
of 1977)
(d)
The offence was
committed by a person or group of persons or syndicate acting in the
execution or furtherance of a common purpose
or conspiracy;”
[14] The
trial court had rejected the version of the accused as improbable
when he alleged that other assailants on the day in question
had
entered the shop of the deceased and indeed that they were the people
that engaged in the shooting of the deceased. The trial
court had
found this version to be improbable having regard to the positioning
of the bullet wounds which the appellant had sustained
in his lower
abdominal area below the counter height, which could not have been
sustained whilst he was on the customer side of
the counter.
[5]
[15] Support
for this finding made by the trial court, is found in the evidence of
Mr Leon Verster, the son of the deceased, who
testified that on the
day in question, the appellant ran into his father’s shop from
the street, jumped the counter in front
of the shop and without
saying a word shoved a gun into his father’s lower chest area
and a shot went off.
[6]
[16] The
evidence of Mr. William Jarett on this aspect was that as he was
standing in front of the counter and whilst talking to
the deceased
he then noticed the appellant towards his right pointing them with a
firearm and next to the appellant was another
person.
[7]
As he then ducked below the counter he then heard a shot rang out. He
never saw this other person again.
[17] Having
regard to the judgment of the trial court it is clear that the court
made a factual finding that the appellant on the
day in question had
acted alone and that the murder was premeditated and planned.
[8]
Albeit that section 51(1) as quoted above, provides for the murder to
have been
either
planned or premeditated, the trial court had found that the murder
was
both
planned and
premeditated.
[18] This
finding so made by the trial court was not based on facts borne out
by the evidence but rather on an assumption reached
by the trial
court. During evidence-in-chief of Mr. Leon Verster the following
testimony is of relevance:
[9]
‘
Now
when he got into the shop, did he, this person, did he say
anything?---He did not say a word.
He
got on top of the counter, then what happened further?---He shoved a
gun in my dad’s lower chest area.
Court
:
He did what?---Showed the gun in my dad’s lower chest area.
Mr.
Mohlala
: You say the gun shot your
father in the chest. Where did this guy…---He shoved the gun,
shoved.
Oh,
sorry M’Lord, he shoved. Then from there what happened? ---My
dad recoiled by pushing his arm aside. A shot went off and
he shot my
dad in the arm.
Just
before that, where did this man get the gun from? ---He had it out
already.”
[19] The
trial court in reaching its decision had placed reliance on the
evidence that the appellant had entered the shop of the
deceased
carrying a firearm and nothing more. However, an evaluation of the
evidence presented before the trial court clearly demonstrates
that
the shot went off when the deceased was pushing aside the arm of the
appellant. Therefore the trial court erroneously concluded
that the
appellant entered the shop of the deceased with the singular
intention to kill the deceased (
dolus
directus
). On the objective facts the
evidence rather proves that the appellant’s actions have
resulted in the death of the deceased
(
dolus
eventualis
) and consequently a finding that
the murder was planned or premeditated could not have been made by
the court.
[20] This I
further conclude in light of the trial court’s own finding that
the appellant should be acquitted on the attempted
robbery charge
proffered against him. In my view the court correctly concluded that
the intention to rob the shop on the part of
the appellant was not
the only possible inference that can be drawn from his conduct on the
day in question.
[21] The
trial court having erroneously concluded that the murder was
premeditated and planned, could not have imposed the minimum
sentence
of life imprisonment as prescribed in Section 51(1) Part 1 Schedule
2, but should have concluded that the murder of the
deceased fell
within the ambit of Section 51(2) Part II of Schedule 2, which
carried imprisonment for a period of not less than
15 years where the
appellant was a first offender.
[22] Albeit,
that sentencing is inherently within the discretion of the trial
court, the powers of an Appeal Court to interfere
with the trial
court’s discretion in imposing sentence are limited unless the
trial court’s discretion was exercised
improperly. The
essential inquiry in an appeal against sentence is not whether the
sentence was right or wrong, but whether the
trial court exercised
its discretion properly and judicially. If the discretion was
exercised improperly, the Appeal Court will
interfere with the
sentence imposed.
[23]
It is my view that a material misdirection by the trial Court
occurred, when the trial Court sentenced the appellant to life
imprisonment when the murder was neither planned nor premeditated.
[24]
Apart from the personal circumstances of the appellant as mentioned
in paragraph 7
supra
,
this court also has to consider the nature of the offences and the
interest of society.
[25]
Murder is in my view the most serious offence as the deceased cannot
be replaced and his life cannot be substituted. Section
11 of our
Constitution protects life by providing that-
“
Everyone
has the right to life.’
As
already mentioned the murder of the deceased was not planned or
premeditated.
[26]
In imposing an appropriate sentence the interest of society also
needs to be protected. Our courts must send a strong message
that
crime will not be tolerated. The sentence to be imposed by the court
ought to be balanced without over-emphasising one part
of the triad
over another. The object of punishment, namely retribution,
rehabilitation and deterrence also ought to be balanced.
[27]
As mentioned in paragraph 10
supra
,
counsel for the appellant had strongly argued that the age of the
appellant, his time spent awaiting trial and him having been
a first
offender cumulatively constituted substantive and compelling
circumstances calling for a deviation of the imposition of
the
minimum sentence of life.
[28] In S v Mabuza and Others
2009 (2) SACR 435
(SCA)
Cachalia JA held at paragraph 23:
“
So
while youthfulness is, in the case of juveniles who have attained the
age of 18, no longer per se a substantial and compelling
factor
justifying a departure from the prescribed sentence, it often will
be, particularly when other factors are present. A court
cannot,
therefore, lawfully discharge its sentencing function by disregarding
the youthfulness of an offender in deciding on an
appropriate
sentence, especially when imposing a sentence of life imprisonment,
for in doing so it would deny the youthful offender
the human dignity
to be considered capable of redemption.’
[29]
Although the appellant is young, his youthfulness in my view, is far
outweighed by the seriousness of the offence and the interest
of
society. I have indeed borne in mind the words of Marais JA in S v
Malgas
2001 (1) SACR 469
(SCA) at 477D-E, where he says:
“
The
specified sentences were not to be departed from lightly and for
flimsy reasons which could not withstand scrutiny. Speculative
hypothesis favourable to the offender, personal doubts as to the
efficacy of the policy implicit in the amending legislation and
like
considerations were equally obviously not intended to qualify as
substantial and compelling circumstances.”
[30]
In casu
,
it is so, that the appellant is a first offender and that should
indeed count in his favour. Unfortunately for the appellant his
personal circumstances are not the only consideration. Counsel
appearing for the appellant contended that the relative youthfulness
of the appellant and his time spent in custody cumulatively
constituted substantial and compelling circumstances. No evidence was
presented before the trial court to point to the appellant’s
intelligence and mental capacity in order to have enabled the
trial
court to have determined his level of maturity and his moral
blameworthiness.
[10]
[31]
Thus, whilst under the age of 18 years is to be regarded as naturally
immature, the same does not hold true for an adult……
a
person of 20 years or more must show by acceptable evidence that he
was immature to such an extent that his immaturity can operate
as a
compelling and substantial circumstance in order to deviate from a
prescribed sentence.
[32]
The trial Court in its judgment remarked that the deceased was shot
execution style whilst he was providing a service to the
public and
that he lost his life in a brutal and senseless way. The trial Court
described his conduct as callous and showing no
respect for human
life nor any remorse.
[11]
[33]
In the present matter
this court is of the opinion that the disparity between the sentence
of the trial court and the sentence which
this court would have
imposed had it been the trial court is so marked that this court can
describe the sentence imposed as “
disturbingly
inappropriate”,
in
the absence of premeditation or planning of the murder having been
borne out by the evidence.
[34]
In the result and consequently the following order is made:
34.1
The appeal in respect of sentence is upheld.
34.2 On count 2 (
murder
) the appellant is sentenced to
imprisonment for a period of 20 years;
34.3 On counts 3 and 4 the appellant is sentenced to three years’
imprisonment taking together for the purposes of sentence.
34.4
The sentences are antedated to 19 November 2004 in terms of
section
282
of the
Criminal Procedure Act, 51 of 1977
.
__________________________
C.J COLLIS
JUDGE OF THE HIGH COURT
I agree
__________________________
R. MOKGOATHLENG
JUDGE OF THE HIGH COURT
I agree
__________________________
J.
VAN DER WESTHUIZEN
ACTING JUDGE OF THE HIGH
COURT
IT
IS SO ORDERED.
Appearances:
For
the Appellant : Adv. S. Hlazo
Instructed
by : Legal Aid
South Africa
For the
Respondent : Adv. M.L. Gcaba
Instructed by
: Director of Public Prosecutions
Pretoria
Date of Hearing : 2
February 2018
Date of Judgement :
5 March 2018
[1]
Record Volume 2 page 73
[2]
Record Volume 2 page 74
[3]
Appellant’s Heads of Argument page 4 para 18
[4]
S v Matyityi 2011(1) SACR 40 SCA [para14] / Respondent’s Heads
of Argument page 6 para 13
[5]
Volume 1 page 67 Lines 15-16
[6]
Volume 1 page 13 Lines 24 & 25 and page 14 Lines 6-10
[7]
Volume 1 page 26 Lines 12 -22
[8]
Record Volume 2 page 73 Lines 20-25
[9]
Record Volume 1 page 14 Lines 5-18
[10]
S v Matyityi 2011 (1) SACR 40 (SCA)
[11]
Record Volume 2 page 73 Lines 20 - 25