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[2023] ZAFSHC 61
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Mkhwanazi v S (A91/2022) [2023] ZAFSHC 61 (9 March 2023)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No: A91 /2022
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
CIRCULATE
TO MAGISTRATES:NO
In
the matter between: -
MICHAEL
MPOTLA MKHWANAZI
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
DANISO
J & BOONZAAIER
AJ
JUDGMENT
BY:
BOONZAAIER, AJ
HEARD
ON:
6
MARCH 2023
DELIVERED
ON:
9 MARCH 2023
INTRODUCTION:
[1]
The Appellant, appeals against
the sentence handed down by the Regional Court Magistrate
Welkom on
4
th
March 2022.
(hereinafter called
“the court
a quo”
).
FACTUAL
BACKGROUND:
[2]
The Appellant was convicted and
sentenced as follows:
2.1
Charge 1
: Robbery with Aggravating
Circumstances- Life imprisonment
2.2
Charge 2
: Possession of firearm –
2.3
Charge 3
: Possession of
ammunition –
Both
charges 2 and 3 are taken as one for the purpose of sentence, and
Appellant is sentence to 5 (five) years direct imprisonment.
2.4
Charge 4
: Murder- Life imprisonment
2.5
Charge 5
: Contravention of
Section
49(1)(a)
of the
Immigration Act 13 of 2002
-
1
(one) year imprisonment
It
was further ordered that all the counts run concurrently.
[3]
The Appellant has an automatic right to Appeal.
3.1
The Appellant`s Appeal is
directed against the Sentence and the grounds
are as
follows:
3.1.1
The court in sentencing the Appellant to
life imprisonment is shockingly,
inappropriate
based on the following reasons:
3.1.2
As it is out of proportion to the totality
of the accepted facts in mitigation.
3.1.3
That it is excessive under the circumstances and induce a sense of
shock.
3.2
That the court erred by
not imposing a shorter term of imprisonment and that the
court
a
quo
;
3.2.1
Did not have regard to the personal
circumstances of the Appellant,
3.2.2
Gave a different sentence for the co-Accused
even though they were found to have acted in common
purpose.
3.2.3
Did not consider the element of
rehabilitation.
3.3
That the court
overemphasized the principle of punishment, namely deterrence,
retribution
over the principle of rehabilitation, the interest of
society and the seriousness of the offences.
FACTS
OF THE CASE
[4]
On the 17 November 2018 the two
Accused persons were in an open field near
Unitas School,
near the railway line. The deceased a Mr., Neil Scott Horrocks
approached Accused 1 to buy dagga he wanted a smoke.
While he was
speaking to the deceased Accused 2 arrived and asked why he was
speaking to the deceased. Accused 1 indicated that
Accused 2
(Appellant) would be able to find a dagga Rizzler for him.
The deceased offered Accused 2, R28 which he took
out of his wallet.
Accused 2 took the money and left but returned to confront the
deceased. There was no argument between them.
[5]
Accused 2 took the lead and used
the firearm, a 9mm pistol to rob and killed the deceased.
Accused 2
tied up the deceased`s hands and feet with a wire. The deceased`s bag
was searched, and a cellphone and R 300 was found
which the Accused 2
took. Accused 1 `s version was from the start that he was under
duress and only followed Accused 2 `s instructions.
They went to
number 3 -shaft near Human motors where there was a dumping site.
Accused 2 took out a blue plastic bag which contains
ammunition. He
loaded some bullets into the firearm. They went to a bush where they
put the ammunition into the bag. The firearm
and the cell phone was
handed to Accused 1 to try and switch on the deceased`s phone,
without any success.
[6]
They dug a hole and buried the firearm
in the hole. They proceeded to another dumping site where
there were
some stones. There, Accused 2 put the
cellphone and the firearm underneath the stones. Accused
2 also told
Accused 1 that he has a plan. He wanted to buy some petrol and set
the body of the deceased alight. They went to town
and split. From
there Accused 1 asked an elderly man he knows to accompany him to the
Police station where he told the Police everything.
He also
accompanied them to point out all the evidence. At that time the
police treated him as a witness, he was later added as
an Accused. He
pleaded guilty to the charges. Accused 1 and 2 are from Lesotho and
participating in Zama-Zama activities, being
illegal in the country.
Accused 2 was arrested at Steps Tavern in town for drinking in public
AD
SENTENCE:
[7]
The mitigating circumstances of
the Appellant were argued as follows:
7.1
The Appellant
was 37 years old at the time of sentence.
7.2
He was married
with two children.
7.3
The Appellant
completed standard 7.
7.4
The Appellant
did odd- jobs and earned approximately R100 – R150
per day and
with his earnings, he supported his wife and children.
7.5
He was incarcerated from 17 November 2018.
7.6
The Appellant
admitted some of his involvement in the offences.
7.7
The
Appellant`s sentence should be blended with mercy and the reformation
factor must also be considered.
7.8
The Appellant was a first offender.
[8]
The aggravating circumstances were
considered during the Judgment on the Sentence
8.1
That the offence was of a serious nature.
8.2
That the offence is prevalent.
8.3
The Appellant took the lead in the offences pertaining to counts 1, 2
3, and 4.
8.4
The Appellant was economical with the truth as to what transpired at
the scene of the crime.
LEGAL
PRINCIPLES:
[9]
ln the matter of
S
v Rabie
[1]
,
the principle regarding appeals against sentence was stated to be:
i. "In
every appeal against sentence, whether imposed by a magistrate
or Judge, the
Court
hearing the appeal –
a.
Should be guided by the principle that punishment is "pre-
eminently" a matter for the
discretion of the trial court"
and
b.
Should be careful not to erode such discretion: hence the further
principle that the sentences should only
be altered if the discretion
has not been 'Judicially and properly exercised".
ii. The
test under "b" is whether the sentence is vitiated by
irregularity or misdirection or is disturbingly
inappropriate."
[10]
ln the case of
S v
Malgas
[2]
, Marais JA
stated:
"A
court exercising appellant jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the
question of
sentences if it were the trial court and then substitute the sentence
arrived at by it simply, because it prefers it.
To do so would be to
usurp the sentencing discretion of the trial court."
The
Supreme Court of Appeal, went on to say at 478 E-H:
"Where
material misdirection by the trial court vitiates its exercise of
that discretion an appellate court is of course entitled
to consider
the question of sentence afresh. In doing so it assesses sentence as
if it were a court of first instance
and the sentence
imposed by the trial court has no relevance. As it is said, an
appellate court is at large. However even in the
absence of material
misdirection, an appellate court may yet be justified in interfering
with the sentence imposed by the trial
court. It may do so when the
disparity between the sentence of the trial court and the sentence
which the appellate court would
have imposed had it been the trial
court is so marked that it can properly be
described as "shocking",
"startling" or
"disturbingly inappropriate ". It must be emphasized that
in the latter situation the appellate
court is not at large in the
sense in which it is at large in the former. In the latter situation
it may not substitute the sentence
which it thinks appropriate merely
because it does not accord with the sentence imposed by the trial
court, or the court prefers
it to that sentence. It may do so only
where the difference is so substantial that it attracts
epithets of
the kind I have mentioned. No such limitation exists in
the former situation."
[11]
An appeal court is loath to interfere with the sentence of a trial
court. As far back as 1920, the
Appellate Division in the case of
R
v Maphumulo and Others
[3]
stated
that:
"The
infliction of punishment is pre-eminently a matter for the discretion
of the trial Court. It can better appreciate the
atmosphere of the
case and can better estimate the circumstances of the locality and
the need for a heavy or light sentence
than an appellate
tribunal. And we should be slow to interfere with its discretion."
The
exception being where there is evidence indicating that it was
activated by a material misdirection or that the sentence is
disturbingly inappropriate, or that it induces a sense of shock.
[12]
In
R
v Zulu and Others
[4]
it
was stated:
"Where
no such grounds exist, the appeal court will not interfere merely
because the appeal judges considered that they themselves
will not
have imposed the sentence."
[13]
ln
R
v S
[5]
,
the court stated with regards when a court would interfere:
"There
are well recognised grounds on which the court of appeal would
interfere with the sentence. Where the trial judge or
magistrate, as
the case may be, has misdirected himself from the law or
facts or has exercised his discretion capriciously
or upon a wrong
principle or so unreasonable as to induce a sense of shock."
[14]
There is what is known as a basic
triad
when fundamental policy with respect to sentencing
is considered. In
Zinn
v S
[6]
.
Rumpff J stated that the assessment of a sentence, the following must
be considered - namely that it is a "triad consisting
of the
crime, the offender, and the interests of society."
[15]
With this in mind, the main purpose of punishment has been described
by the appellate division as:
Firstly deterrent. Secondly
preventative. Thirdly reformative. Fourthly retributive as stated in
both
R
v Swanepoel
[7]
;
and
S v
Rabie,
supra.
[16] At
the same time the words of
Holmes
JA in S v Sparks
[8]
should not be forgotten:
"Punishment
should fit the criminal as well as the crime, be fair to the State
and to the accused and blemished with a measure
of mercy."
[17] ln
S v
Theron
[9]
,
Botha JA in referring to what an appropriate sentence is, said that
the trial judge weighs up the various factors, which
forms part of
the court's discretion as to what, under the circumstances an
appropriate sentence should be.
[18]
ln
S
v Matyityi
[10]
,
the court increased the sentence which was originally imposed by the
trial court from 25 years to life imprisonment based on the
factor
that the respondents conduct themselves, was a flagrant disregard for
the sanctity of human life or individual physical
integrity. In the
case of the court stated that the case of
Matyityi
shows
that:
"
Where people acted in a manner that was unacceptable in any
civilised society particularly one that ought to
be committed to the
protection of the rights of all persons including women",
no
mercy
should be
accepted.
[19]
In the Appellants case with regards to count 1 and
4 there is a minimum sentence applicable. The court is
expected to
impose the minimum sentence unless if there there are substantial and
compelling circumstances, warranting a deviation
since the minimum
sentence on count 2 and 3 it is up to 15 years imprisonment unless
there are substantial or compelling circumstances.
The offence is
serious, the circumstances surrounding the killing are aggravating
because the deceased was a soft target and could
not defend himself
against the firearm of Accused 2.
[20]
This court is sensitise to what was said in the
case of
S v Rabie
supra, where the court was asked to blend
its sentence with mercy as sentence is not aimed at breaking the
accused but also to
assist with rehabilitation.
[21]
The Appellant asks this court to deviate, based on
the substantial and compelling factors listed.
On
a balanced consideration of the totality of the evidence, this court
finds no substantial and compelling circumstances to deviate
from the
minimum sentence and accords with the court
a
quo
that the sentence is
proportionate
to the crime, the criminal and the legitimate needs of society.
(own emphasis)
[22]
Hence, having regard to the case law and how the
court a quo
applied the law, I can find no reason to
interfere with the trial court`s discretion on sentence.
ORDER:
[23]
The appeal with regards to sentence is dismissed.
A.S.
BOONZAAIER, A J
I
agree. It so ordered.
NS
DANISO, J
For the Appellants:
Adv. S Kruger
Instructed by
Legal Aid South
Africa
BLOEMFONTEIN
For the Respondent:
Adv.Tunzi
Instructd by
Director of Public
Prosecutions
BLOEMFONTEIN
[1]
1975
(4) SA 855
(A)
at 857 D-F
[2]
2001
(1) SACR 469
SCA
at 478 D-E
[3]
1920
AD 56
at
57
[4]
1951
(1) SA 489
(N)
496 at 497
[5]
1958
(3) SA 102
at
104
[6]
1969
(2) SA 537
(A)
540 G
[7]
1945
AD 444
at
455
[8]
1972
(3) SA (396) (A) 410 H
[9]
1986
(1) 826 (A) 896
[10]
(2011)
SACR (1) 40 (SCA) para 13