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[2013] ZASCA 192
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Magano v S (849/12) [2013] ZASCA 192 (29 November 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 849/12
Not reportable
In
the matter between:
Vincent Olebogang
Magano
…………………………………..
Appellant
and
The
State
………………………………………………………
Respondent
Neutral
citation
: Magano
v S (849/12)[10\3] ZASCA
192 (19 November 2013)
Coram
:
MAYA, TSHIQI, MAJIEDT, WALLIS and PILLAY JJA.
Heard
:
12 November 2013
Delivered
:
29 November 2013
Summary:
Criminal law - sentence
ORDER
On appeal from:
North West High Court
(Khumalo J sitting as court of first instance):
The appeal is upheld and the sentence of life
imprisonment imposed on the appellant is set aside and replaced by a
sentence of 20
years imprisonment, antedated to 26 May 1999.
JUDGMENT
WALLIS JA (MAYA, TSHIQI, MAJIEDT
and PILLAY JJA concurring)
[1]
On
1 February 1999 Mr Magano shot and killed Ms Refilwe Selau after she
had terminated their relationship of three years standing,
a
relationship that he had expected would lead to marriage later that
year. The shooting took place in his motor car whilst it
was parked
at Victoria Hospital in the district of Molopo. Immediately after the
shooting he drove away towards a place called
Signal Hill. Whilst en
route he stopped the car and in a bid to commit suicide turned the
gun on himself. After several unsuccessful
attempts to shoot himself
through the temple, he shot himself in the forehead. This caused him
to pass out, but he survived with
significant injuries.
[2]
Mr
Magano was charged with the murder of Ms Selau in the former
Bophuthatswana Provincial Division of the High Court (now the North
West High Court). The trial was heard by Khumalo J. Mr Magano pleaded
guilty and was convicted. Khumalo J found that there were
no
substantial and compelling circumstances justifying a departure from
the minimum sentence prescribed under
s 51(1)
of the
Criminal
Procedure Amendment Act 105 of 1997
, and sentenced him to life
imprisonment. It is unnecessary to trace the various steps taken by
Mr Magano over the intervening years
to challenge both his conviction
and sentence. What is before us in this appeal is an appeal against
sentence alone, leave having
been granted by Sithole AJ.
[3]
As
already mentioned Khumalo J dealt with the case on the footing that
the provisions of the minimum sentencing legislation applied.
Although the record is incomplete and we do not have a copy of the
indictment before us we were informed by counsel for the State
that
it did not refer to
s 51(1)
and that Mr Magano was at no stage warned
that the legislation might be invoked against him when it came to
sentence. In a series
of judgments of this and other courts
subsequent to his trial it has been held that such a warning, either
by way of a reference
to the section in the indictment or by some
other means, such as an explanation by the presiding judicial
officer, is required
before the provisions of the minimum sentencing
legislation may be invoked against an accused. There was accordingly
an irregularity
in the learned judge invoking those provisions in
this case. For that reason alone the sentence he imposed must be set
aside and
replaced.
[4]
The
facts placed before the trial court were restricted to the contents
of Mr Magano’s plea explanation and some evidence
from his
brother. From that it emerged that the relationship between him and
Ms Selau had been experiencing problems that came
to a head on the
day she was killed. Apparently she had told Mr Magano that the
relationship was over and he tried to dissuade
her from taking that
step. According to him she turned her back on him and tried to run
away. As she did so she tripped and fell
and injured her hand. Mr
Magano’s brother amplified upon this and said that he heard
screaming and that Ms Selau fled into
the house in considerable
distress. She was bleeding from her hand and holding her left hand
with her right hand. She alleged that
Mr Magano had assaulted her
that day and that she had broken off the relationship because he
assaulted her on a regular basis.
While she was saying this, the
appellant was crying.
[5]
After the intervention of the
appellant’s uncle, the two brothers and their mother took Ms
Selau to Victoria Hospital for
treatment for her injuries. Apparently
her arm was broken and was placed in a cast. When they emerged from
the hospital Mr Magano
got into the car and opened the rear door to
let Ms Selau in. Once she had got in he locked the car doors,
produced a gun from
the cubbyhole and proceeded to shoot and kill Ms
Selau. While he did this, his mother and brother were trying to get
into the car.
He then drove off. What followed was the unsuccessful
suicide attempt.
[6]
The killing of Ms Selau was, as the
trial judge found, a very serious crime involving, as all too many
such cases do, the unlawful
use of firearms. He rightly said that Mr
Magano had taken the life of this young woman for the simple reason
that she had jilted
him. Whilst the termination of their relationship
may have caused him some distress, compounded by the fact that he was
upset at
the time because he had been told by the school principal at
his place of employment that he was to be redeployed elsewhere, it
provides no excuse and little mitigation for his offence. I agree
with the trial judge that it was a cowardly act to trap this
young
woman in his car and then shoot her five times.
[7]
There
are a few factors that count in Mr Magano’s favour. He was
relatively young, a first offender and in stable employment.
He is
obviously not without intelligence. Those are all factors that point
in favour of possible rehabilitation. In addition he
professed
remorse and his plea was accepted on the footing that this remorse
was genuine. That too points towards a reasonable
possibility of
rehabilitation. Whilst his injuries were self-inflicted, they have
left him with serious handicaps. These are all
matters to be taken
into account in assessing an appropriate sentence.
[8]
A
lengthy prison sentence was necessary and inevitable in this case. I
do not think that it is necessary to impose life imprisonment
although, if the minimum sentencing legislation had been applicable,
it would have been difficult to fault the trial judge’s
decision in that regard. In my view a sentence of 20 years
imprisonment is appropriate in this case. Accordingly the appeal is
upheld and the sentence of life imprisonment is set aside and
replaced by a sentence of 20 years imprisonment, antedated to 26
May
1999.
M J D WALLIS
JUDGE OF APPEAL
Appearances
For
appellant: P I SHAPIRO
Instructed
by:
S Shapiro Attorneys, Johannesburg
For respondent: Ms A Mogoeng
Instructed by:
National
Director of Public Prosecutions, Bloemfontein.