Morake v S (62/2021) [2022] ZAFSHC 38 (8 March 2022)

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[2022] ZAFSHC 38
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Morake v S (62/2021) [2022] ZAFSHC 38 (8 March 2022)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: 62/2021
In the matter
between:
LEBOHANG LUCAS
MORAKE
Applicant
And
THE
STATE
Respondent
HEARD
ON:
This
matter was
determined on the basis
of written arguments instead of an oral hearing
as
provided for in Rule 16.5 of this court’s practice directives.
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 09H00 on 08 March 2022.
[1]
On 21 January 2022 the applicant was convicted for the murder of his
pregnant partner. He
was subsequently sentenced to 20 years’
imprisonment.
[2]
In this opposed application he seeks leave to appeal both the
conviction
and the sentence. The grounds for leave to appeal are
embodied in the notice of application for leave to appeal. I don’t
deem it
necessary to rehash them verbatim including the submissions
made by both the defence and the State except to refer to the
relevant
parts therefore for the purpose of this judgment.
AD CONVICTION
[3]
The applicant is aggrieved by the finding that the State had proven
its
case against beyond a reasonable doubt. The applicant has merely
repeated the submissions presented at the trial, namely that, none
of
the State’s witnesses saw how the deceased sustained the injuries,
the State’s case was based on circumstantial evidence which
does
not prove that he had the intention to kill the deceased. He contends
that the fact that when the State’s first witness, Mr
Jodo alerted
him to the fact that the deceased was unresponsive and in need of
medical assistance he panicked then later tried to
get her the
medical help and also apologized to the deceased’s aunt militates
against an intention to kill. Furthermore, his version
that he had
only pushed the deceased was not totally dismissed by the medical
practitioner who gave evidence for the State therefore
it cannot be
said that when the applicant pushed the deceased he foresaw that she
would sustain fatal injuries.
[4]
Without regurgitating my reasons for my findings, in my main judgment
I
alluded to the fact that the applicant’s evidence that he had
only pushed the deceased was gainsaid by the uncontested medical
evidence. According to Dr Erasmus it was highly unlikely that the
deceased would have sustained a head injury with brain swelling,
ribs
and scapula fractures and a collapsed lung just from a mere push and
what transpired before, during and after the deceased was
injured
were also factors that I found to be relevant in the determination of
whether the applicant had the intention of killing
the deceased viz.
that immediately before the accused assaulted the deceased he went
looking for her seething with anger brought
about by a suspicion that
she was cheating on him. He even insulted the deceased’s aunt when
he could not find her at home. After
he had assaulted and rendered
the deceased unconscious he refused to heed Mr Jodo’s advice to
seek medical attention for the deceased.
Contrary to his allegation
that he had ultimately sought or tried to get medical help for the
deceased, on the established evidence
the deceased was only taken to
the hospital by her family approximately 6 hours after Mr Jodo had
advised the applicant to get her
the medical attention. It is on that
basis that I held that the applicant’s version when evaluated
against the State’s accepted
version was not reasonably possibly
true, it was accordingly rejected as false.
AD SENTENCE
[5]
It was common cause in terms of section 51 (2) of the
Criminal
Law Amendment Act
105 of 1997 (“The CLAA)
the
conviction of the applicant will attract a minimum sentence of 15
years
unless there are compelling and substantial
circumstances justifying a departure from the prescribed minimum
sentence.
[6]
The applicant also challenges the finding that there were no
substantial and compelling circumstances
warranting a lesser sentence
than the prescribed one and that the sentence imposed is shockingly
disproportionate. He contends that
his personal circumstances were
ignored, at the age of 25 he is still fairly young therefore there
are good prospects of rehabilitation,
the court should have also
taken into account that he was a first offender, he was provoked,
liquor played a role in the commission of the
offence and
that it occurred during the spur of the moment.
[7]
Except to reiterate that applicant has neither accepted nor disclosed
to this court
whether he has a true appreciation of the consequences
of his actions and without any demonstration of true remorse it
cannot be
said that he is a good candidate for rehabilitation. It is
for the applicant to place before court any facts why time spent in
custody
awaiting trial should count as a mitigating factor in his
favour. The applicant failed to adduce any explanation for the
prolonged
detention despite his right to apply for bail. I’m of the
view that I have adequately dealt with all the aspects raised in
these
grounds of appeal in my main judgment. All these factors
alluded to by the applicant viewed cumulatively, do not establish
substantial
and compelling circumstances which justify a deviation
from the prescribed minimum sentence.
[8]
Having regard to my reasons for my judgment in respect of both the
conviction and sentence
I’m not persuaded that the issues raised by
the applicant in his grounds of appeal
would have reasonable prospects of success.
[9]
In the result the following order is made:
1.
The application for leave to appeal to the full
bench of this division is dismissed.
NS
DANISO, J
For
the applicant:

Mr. P. Mokoena
LEGAL AID SOUTH
AFRICA
Bloemfontein.
For the State

Ms. T.H. Sekhonyana
OFFICE OF THE
DIRECTOR OF
PUBLIC
PROSECUTIONS
Bloemfontein