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[2010] ZAWCHC 457
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Gongotha v S (A300/2008) [2010] ZAWCHC 457 (3 September 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
: A300/2008
DATE:
3 SEPTEMBER 2010
In
the matter between:
BONGINKOSI
GONGOTHA
…........................................................
1
st
Appellant
SIBONISILE
MQIGWANA
…..........................................................
2
nd
Appellant
and
THE
STATE
…...................................................................................
Respondent
JUDGMENT
BINNS-WARD.
J:
In
this matter the appellants were convicted in the regional court on
one count of murder, in that on 2 July 2006 at or near Khayelitsha,
they murdered Eric Mziwabanto Nzemla by shooting him with a firearm
and on the same date and place attempted to murder Lendiwe
Magenyesa
by shooting her with a firearm. They were also convicted under the
Firearms Control Act 60 of 2000
with possessing a firearm without a
licence, permit or authorisation issued in terms of the act. On the
count of murder, the court
a
quo
found
that there were no substantial and compelling circumstances entitling
it to deviate from the prescribed minimum sentence of
life
imprisonment; and they were, therefore, on that count sentenced to
life imprisonment. In respect of the count of attempted
murder, a
sentence of ten years imprisonment was imposed on both appellants. In
respect of the charge under the
Firearms Control Act, they
were each
year sentenced to five years imprisonment. The sentences on the
counts of attempted murder and of the contravention of
the
Firearms
Control Act, were
directed to run concurrently with the sentence of
life imprisonment.
By reason of the
provisions of section 309 of the Criminal Procedure Act, in
particular the first proviso to section 309(1)(a) of
that act, the
appellants enjoyed a right of appeal to this court without the need
to obtain leave from the trial court for that
purpose. Section 309(2)
of the Criminal Procedure Act provides:
"An appeal under
this section shall be noted and be prosecuted within the period and
in the manner prescribed by the rules
of court, provided that the
magistrate against whose decision or order the appeal is to be noted,
or of he or she is unavailable,
any other magistrate of the court
concerned, may, on application and on good cause shown, extend such
period."
In this matter it is
clear from the record that both the trial magistrate and the
appellants' counsel at trial were aware of their
right to appeal, but
it is evident on the record that there was some confusion as to how
matters in that regard should be taken
forward. That confusion no
doubt arose from the fact that the relevant rule of court, being Rule
67 of the Magistrate's Court Rules,
was not appropriately amended to
give effect to the statutory amendments until sub-Rule 5A was
introduced in terms of General Notice
517 of 2009, which was
published only on 8 May 2009.
In the circumstances it
seems appropriate to treat the document filed of record and drawn,
according to its teno^ as^ an application
for leave to appeal, as a
notice of appeal in terms of the regulations as eventually
promulgated. The grounds of appeal set out
in that document make it
apparent that the appeal is directed only against the sentences
imposed; and in particular only against
the life sentence handed down
in respect of the murder count. Those grounds are that the magistrate
did not give due consideration
to the fact that the applicants were
first time offenders, that the applicants were only 19 years old at
the time, still attending
school at the time of committing the
offence, that the magistrate erred in over-emphasising the interest
of the community and the
seriousness of the crime.
It is alleged that the
magistrate did not give due consideration to the element of mercy to
be afforded to the applicants and gave
the element of retribution too
much weight and consideration. It averred that the term of
imprisonment adduced a sense of shock
and that too much emphasis was
placed on retribution and deterrence. Those provisions appear to
pertain only in respect of appellant
number 2, but no doubt
essentially the same assertions were urged in respect of appellant
number 1.
Now,
as Mr
Theron
pointed
out in his oral argument today, it is a trite principle that a court
of appeal will not interfere with the sentence imposed
by a trial
court, unless there has been some material misdirection or vitiating
error by the trial court in the exercise of its
sentencing
jurisdiction. In the current matter, and I do not intend to set out
the facts in detail, the magistrate's court judgment
does that
adequately, the appellants made themselves guilty in respect of the
murder count of one of the more heinous instances
of that offence.
For no disclosed reason, in the middle of the night, they intruded
into the domestic privacy of the deceased and
the complainant on
count 2, by breaking down the door to their house and then, having
gained entry into the house, breaking down
the door into the bedroom
in which both of them were at that stage, and opening fire on the
deceased. In the region of seven bullets
appear to have been fired at
the deceased, with, unsurprisingly, fatal consequences.
The evidence shows that
the deceased was known to the appellants, although it gives no
indication that they would have had any basis
to act against him in
this entirely unacceptable manner. The evidence also shows that the
appellants were known to the complainant
on the count of attempted
murder, and the evidence indicates that it is clear that it is only
fortuitous that the complainant on
the attempted murder count,
survived this incident. It is obvious that the assault on her, also
by firing at her with the firearm,
was undertaken with the deliberate
intention of killing her, no doubt to try to facilitate that no
identifying evidence would be
available against the appellants
thereafter.
The magistrate took into
account the appellants' personal circumstances. She was conscious of
their relative youth, but she was
also rightly conscious that that
factor, as well as the fact that they had no reported previous
convictions, could not be seen
in isolation and had to be adjudged
against the circumstances of the offence and the interests of the
community. It does not need
repeating how ravaged this country is by
serious and violent crime and the current matter is an incident of
one of the worst kinds
of perpetration of that type of crime.
As
Mr Justice Nugent, Judge of Appeal, remarked in his recent judgment
in
S
v Vilakazi
2009(1)
SACR 552 (SCA), in instances of particular serious crime, for which
the provisions of the minimum sentence legislation appear
to be
particularly directed, the personal circumstances of the appellant,
while not irrelevant, weigh less in the scales. And that
effectively
is what the trial court found. In the circumstances I am of the view
that no basis for a finding of misdirection by
the trial court exists
and I would, therefore, dismiss the appeal against the sentence of
life imprisonment on the part of both
appellants.
KRUGER.
AJ
:
I agree.
KRUGER.
AJ
BINNS-WARD,
J:
And
it is so ordered
BINNS-WARD,
J