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[2023] ZAKZPHC 17
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Dlamini v S (AR208/2022) [2023] ZAKZPHC 17 (24 February 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No:
AR208/2022
In
the matter between:
SNETHEMBA
DLAMINI
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
Mossop J (Seegobin J concurring)
Heard:
24 February 2023
Delivered:
24 February 2023
ORDER
On
appeal from:
Ixopo Regional Court (sitting as court of first
instance):
1.
The appeal against the sentences imposed upon the
appellant in respect of counts 1 and 2 is refused, subject to what is
stated in
paragraph 2 below;
2.
The sentence imposed on count 2 is to run
concurrently with the sentence imposed on count 1.
JUDGMENT
Mossop
J (Seegobin J concurring):
[1]
On 25 June 2020, the appellant pleaded not guilty in the Ixopo
Regional
Court
on
a count of attempted murder (count 1) and a count of kidnapping
(count 2). On the same day, he was convicted on count 1 of assault
with intent to do grievous bodily harm and on count 2 he was
convicted of assault, both of which convictions are competent
verdicts
to the principal charges that he faced. He was sentenced to
seven years’ imprisonment on count 1 and 12 months’
imprisonment
on count 2. The sentences imposed were to run
consecutively.
[2]
Dissatisfied with these sentences, the appellant applied for leave to
appeal against them from the court a quo. He was granted leave to do
so.
[3]
The facts that led to the imposition of the two sentences that form
the
basis of this appeal are that the appellant and the complainant
on count 2, Ms L [....] J [....] (Ms J [....]), were at one stage
in
a relationship with each other. Indeed, they had had a child
together. Ms J [....] had, however, moved on with her life and
in her
evidence described the complainant on count 1, Mr C [....] J [....] 1
(Mr J [....] 1), as ‘my husband’. On the
evening of 29
November 2019, Ms J [....] went to Mr J [....] 1’s home in the
Ixopo area and found him standing at the gate
to his property. The
appellant then arrived, with a towel covering his head. He greeted
them and then instructed that they enter
Mr J [....] 1’s
dwelling. The appellant then grabbed Ms J [....]’s arm and
began pulling her, as if he was going to
take her away from the
scene. Mr J [....] 1 came to her assistance and asked the appellant
where he was taking Ms J [....]. The
response that he received was
that the appellant stabbed him with a knife. He was stabbed in his
arm, his chest and his back. He
collapsed at the scene and apparently
recovered consciousness in hospital, where he was compelled to remain
for two weeks while
his injuries were treated.
[4]
Ms J [....] tried to flee from the appellant but
had not gone very far when, as she described it in her evidence, ‘I
get stuck
on the wire’. The appellant came after her, grabbed a
hold of her and dragged her away from Mr J [....] 1’s residence
against her will. Despite Ms J [....] trying to get help from a
passing motorist, it was not forthcoming and she was compelled
to go
with the appellant. She begged him repeatedly to release her and even
offered to tell a lie later and say that it was not
the appellant
that had stabbed Mr J [....] 1. Where Ms J [....] was actually taken
to is not entirely clear. She seemed to indicate
that she ended up
near a hospital. At around daybreak she finally persuaded the
appellant to take her to another place where, as
she put it, ‘there
were other ladies’ and she was released. She found the
experience most stressful and collapsed at
work the next day and then
had to be taken to hospital, where she remained for two days.
[5]
The appellant denied that he was the person who
had attacked and stabbed Mr J [....] 1 and, essentially, claimed that
the version
of Ms J [....] and Mr J [....] 1 was a concoction
intended to falsely implicate him in the matter. He also claimed to
be in a relationship
with another woman and claimed that he was with
her on the date in question. He thus raised an alibi as a defence.
Finally, he
suggested that Ms J [....] had visited him in prison and
had apologised to him for implicating him and had offered to withdraw
the charges against him, a fact that Ms J [....] strongly refuted.
[6]
The court a quo rejected the appellant’s
alibi defence, correctly in my view, and found him guilty on the
competent verdicts
to the two charges that he initially faced.
[7]
There can be little doubt that the attack upon Mr
J [....] 1 was unnecessary and was brutal. He suffered serious
injuries that detained
him in hospital for a lengthy period. That he
was struck with murderous intent seems all too likely. The appellant
was fortunate
that he was not convicted of attempted murder. He
escaped that possibility only because the State led no expert medical
evidence
on the injuries suffered by Mr J [....] 1. That Mr J [....]
1 survived is perhaps due more to good fortune than to good planning.
Quite why these unfortunate events occurred, and what the appellant
hoped to achieve by taking Ms J [....] with him against her
will, is
difficult to comprehend.
[8]
Ms Hulley, who appears for the appellant, submits
that the court a quo misdirected itself by not considering the
cumulative effect
of the two sentences that it imposed upon the
appellant. Section 280(1) and (2) of the Criminal Procedure Act 51 of
1977 (the Act)
reads as follows:
‘
(1)
When a person is at any trial convicted of two or more offences or
when a person under sentence or undergoing sentence is convicted
of
another offence, the court may sentence him to such several
punishments for such offences or, as the case may be, to the
punishment
for such other offence, as the court is competent to
impose.
(2)
Such punishments, when consisting of imprisonment, shall commence the
one after the expiration, setting aside or remission of
the other, in
such order as the court may direct, unless the court directs that
such sentences of imprisonment shall run concurrently.’
[9]
Ms
Hulley drew our attention to the matter of
S
v Mokela
,
[1]
where the Supreme Court of Appeal stated that a failure to consider
evidence establishing that two offences
were
‘inextricably linked in terms of the locality, time,
protagonists and, importantly, the fact that they were committed
with
one common intent’ could amount to a misdirection. Such
evidence may call for the two sentences that are to be imposed
to be
ordered to run concurrently.
[10]
It
is so that the court a quo did not refer to section 280 of the Act
nor did it specifically address the cumulative effect of the
sentences that it imposed. I
t
is, however, well established that the power of an appellate court to
interfere with a sentence imposed by a lower court is limited.
In
S
v Rabie,
[2]
the Appellate Division noted that punishment is ‘pre-eminently
a matter for the discretion of the trial court’, and
that an
appeal court ‘should be careful not to erode such discretion’.
Consequently, a sentence imposed by the trial
court may only be
interfered with where it is ‘vitiated by irregularity or
misdirection or is disturbingly inappropriate’.
However, even
where a sentence is not shockingly inappropriate, an appellate court
is entitled to interfere, or at least consider,
the sentence afresh,
if there has been a material misdirection in the exercise of the
sentencing discretion. As was stated in
S
v Kgosimore,
[3]
the critical enquiry is whether there was a ‘proper and
reasonable exercise of the discretion’ by the trial court.
In
the absence of a finding to the contrary, an appeal court has no
power to interfere.
[11]
As regards the sentence on count 1, I am
unpersuaded that the sentence imposed is inappropriate. It correctly
reflects the seriousness
of the offence. The sentence on count 2 is
perhaps more severe than I would have thought to be just, given the
facts that the court
a quo found to be proved. That, however, is not
the test.
As Maya DP stated in
S v Hewitt
:
‘
It
is a trite principle of our law that the imposition of sentence is
the prerogative of the trial court. An appellate
court may
not interfere with this discretion merely because it would have
imposed a different sentence. In other words, it is not
enough to
conclude that its own choice of penalty would have
been
an
appropriate
penalty.
’
[4]
(Footnote omitted.)
[12]
It appears to me that the criteria referred
to in
Mokela
are present in the events that we are called upon to consider. The
two offences seem to be inextricably linked to each other, are
connected with regard to locality and time of occurrence and,
further, appear to have been committed with a common intent. While
I
am of the view that the sentence on count 2 is slightly robust, I
find that there is no basis for this court to interfere with
it or
with the sentence imposed on count 1. I am, however, of the view that
the court a quo did not take the cumulative effect
of the sentences
it imposed into account. In the circumstances, this court may
intervene.
[13]
In the circumstances, I would accordingly
propose the following order:
1.
The appeal against the sentences imposed upon the appellant in
respect of counts 1 and 2
is refused, subject to what is stated in
paragraph 2 below;
2.
The sentence imposed on count 2 is to run
concurrently with the sentence imposed on count 1.
MOSSOP
J
I
agree and it is so ordered.
SEEGOBIN
J
APPEARANCES
Counsel
for the appellant
: Ms A Hulley
Instructed
by:
: Legal Aid
187 Hoosen Haffejee
Street
Pietermaritzburg
Counsel
for the respondent
: Mr R Singh
Instructed
by
:
National Prosecuting Authority.
Pietermaritzburg
Date
of Hearing
: 24 February 2023
Date
of Judgment
: 24 February 2023
[1]
S v
Mokela
[2011]
ZASCA 166
;
2012 (1) SACR 431
(SCA) para 11.
[2]
S
v Rabie
1975
(4) SA 855
(A)
at 857D-E.
[3]
S
v Kgosimore
1999
(2) SACR 238
(SCA)
para 10.
[4]
S
v Hewitt
[2016]
ZASCA 100;
2017
(1) SACR 309 (SCA)
para
8.