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[2017] ZAGPJHC 476
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Makhanya v S (A85/2017) [2017] ZAGPJHC 476 (18 September 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A85/2017
DPP
REF NO: JPV 2008/0166
DATE:
1 SEPTEMBER 2017
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:NO
18
SEPTEMBER 2017
In
the matter between:
MAKHANYA,
VUMANI THALENTE
APPELLANT
and
THE
STATE
RESPONDENT
J
U D G M E N T
MUDAU
J
[1]
The appellant, Mr Vumani Thalente Makhanya was on 14 October 2010
convicted of one count
of robbery with aggravating circumstances and
another count of murder by this court (per Satchwell J). The
appellant was accused
2 during the trial, enjoyed legal
representation at all relevant times and sentencing proceedings.
Subsequently he was sentenced
to 21 years’ imprisonment for the
aggravated robbery and 32 years’ imprisonment on the murder
charge, the trial court
having found that substantial and compelling
circumstances exist justifying a departure from imposing the
mandatory minimum sentence
of life imprisonment as required by
section 51 (1) of Act 105 of 1997 for the murder charge.
[2]
The court also ordered that the 32 years’ imprisonment imposed
in respect of
the murder charge run concurrently with the sentence
imposed in respect of the aggravated robbery charge. The appellant
was accordingly
sentenced to an effective period of 33 years’
imprisonment. Aggrieved with this sentence, the appeal against
sentence only
is with leave of the sentencing court.
[3]
The salient facts leading to the conviction of the appellant are as
follows: On 19
March 2008 a body of a man, later established to be
that of Mr. T [....] E[....] O[....] M[....], a Nigerian national,
was found
inside his car at a disused Shell garage in Doornfontein,
Johannesburg. There was a rope tied more than once around his neck.
From
the photographs it was evident that a great deal of pressure was
exerted on the neck by the rope. The doctor who performed the
post-mortem examination on the deceased, Dr Moeng, concluded that the
death of the deceased was consistent with hanging. The cause
of death
in such circumstances was found to be loss of oxygen to the brain.
[4]
The appellant and four others were charged for the murder of the
deceased and aggravated
robbery regarding this incident. The evidence
established that the appellant and others used to wash cars at the
disused garage
where the deceased’s body was found. He was
implicated in the murder and robbery by the evidence of an
eyewitness, Mr M[....]2.
He witnessed the robbery and the killing
taking place. Mr M[....]2 placed the appellant at the scene of the
crimes on the date
and time of the incidents.
[5]
The appellant played an active role in the commission of the offences
for he grabbed
the deceased outside his vehicle. The deceased was
forced into his car. The rope was brought by one of the
co-perpetrators to those
inside, including the appellant; the
deceased thereafter was bound by his hands, legs and neck. The
appellant was also implicated
by his statement that he made to a
magistrate shortly after he was arrested in KwaZulu–Natal which
the trial court found
to be admissible in evidence after holding a
trial within a trial.
[6]
In his statement before the magistrate, the appellant implicated
himself in the robbery
of the deceased and that each of them shared
in the money stolen from the deceased during the robbery. The trial
court also found
that the appellant and his co-perpetrators who were
with him inside the vehicle with the deceased used the rope to
restrain the
deceased. The rope was tied around the deceased’s
neck more than once. The motive it seemed, the deceased being a
suspected
drug dealer, he would have with him a lot of cash inside
his car. The appellant blamed his co-perpetrators for the murder, but
did not testify in his defence.
The version of
the appellant was correctly rejected as false by the court
a
quo
. It follows that the appellant
was correctly convicted.
[7]
It is an established approach in our law that this court’s
power to interfere
with the sentence is limited as the passing of
punishment lies in the discretion of the sentencing court. A court of
appeal may
not simply substitute a sentence because it prefers it and
will only be entitled to interfere if the sentencing court materially
misdirected itself or if the disparity between its sentence and the
one which this court would have imposed had it been the trial
court
is ‘shocking’, ‘startling’ or ‘disturbingly
inappropriate’
[1]
.
[8]
In this case, the appellant’s sentencing attracted a mandatory
minimum sentence
of life imprisonment in that the murder of the
deceased was committed in the course of an aggravated robbery and
secondly, because
the offense was committed ‘by a person, group
of persons or syndicate acting in the execution or furtherance of a
common
purpose or conspiracy’.
[9]
The appellant was 22 years and seven months of age when the offences
were committed.
He had been in custody for approximately one year and
11 months when sentence was imposed. There were no records of
previous convictions
proved against him. The court also found that he
came from a deprived family background. He had not completed his
schooling. Neither
had he any trade or skill and was for that reason
not formally employed. The trial court found that the personal
circumstances
of the appellant did not contribute towards a finding
of substantial or compelling circumstances justifying the imposition
of lesser
sentences than those prescribed.
[10]
As to the crime itself, the trial court found that it was both brutal
and violent. Furthermore,
that it was brazen as it was committed in
public. The court could not find that the offences were planned, but
instead found that
the murder was committed with “reckless
intention, that is with
dolus eventualis
”. For this
reason alone, the trial court was of the view that since a planned or
premeditated intention to kill was not established,
that alone
constituted substantial and compelling circumstances in respect of
count 2, the murder charge, to impose a lesser sentence
than the
mandatory life imprisonment. In this regard, it would seem to me
respectfully, that the trial court erred as there was
no apparent
consideration of the fact that the deceased died during or after the
commission of an aggravated robbery. Counsel for
the appellant and
the respondent were inclined to agree.
[11]
After dealing with the personal circumstances of the appellant as
detailed above, the nature
of the offences committed, as well as the
interests of society, the trial court was of the view that the
offences were of a serious
nature to warrant the sentences it
imposed.
[12]
It was contended on behalf of the appellant that the trial court
erred in that there were no
reasons given for the 21 years imposed in
respect of the robbery charge, and for that reason an appropriate
sentence would have
been 25 years’ imprisonment. Whilst the
reasons for the sentence imposed in respect of the robbery charge
were not singled
out, the court expressed a view as indicated above
that this was a brazen criminal incident and correctly so in my view.
To my
mind, it is implicit in the court’s reasoning that this
was motivation for the sentence imposed. However, to ameliorate the
effective sentence, a portion of the sentence imposed in respect of
the murder charge was ordered to run concurrently with the
sentence
imposed for the robbery charge.
[13]
In this case there is no cross-appeal by the
respondent. This court therefore is not at liberty to deal
with the
question of an increased sentence without a cross-appeal.
[2]
The effective sentence of 33 years imprisonment is not equivalent to
life imprisonment.
Taking
into account all substantial considerations, the effective sentence
imposed does not provoke in me any sense of shock. I
cannot find that
the trial court has erred in not imposing a lesser effective sentence
or that the sentencing discretion was in
this regard improperly
exercised. It accordingly follows that there are no reasons for
interfering with the sentence imposed on
the appellant.
[14]
The appeal again sentence is dismissed.
MUDAU
T P
[Judge
of the High Court,
Gauteng
Local Division,
Johannesburg]
I
agree
MOKGOATLHENG
R
[Judge
of the High Court,
Gauteng
Local Division,
Johannesburg]
I
agree
DU
PLESSIS D J F
[Acting
Judge of the High Court,
Gauteng
Local Division,
Johannesburg]
Date
of Hearing: 1
September
2017
Date
of Judgment: 18
September 2017
APPEARANCES
For
the Appellant: Adv.
J Henzen-Du
Toit
Instructed
by: Legal-Aid
South Africa
Johannesburg
For
the Respondent: Adv.
W Vos
Instructed
by: Office
of the Director of Public Prosecutions
Johannesburg
[1]
See
S
v Malgas
2001
(1) SACR 469
(SCA) at 478F-G
[2]
See
S
v Nabolisa
2013
(2) SACR 221
(CC).