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[2022] ZAFSHC 106
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Ngwenya v S (A11/2022) [2022] ZAFSHC 106 (27 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A11/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
MAZENZELE
ISAAC NGWENYA
Appellant
And
THE
STATE
Respondent
HEARD
ON:
23
MAY 2022
CORAM:
MOLITSOANE, J et LITHEKO, AJ
JUDGEMENT
BY:
LITHEKO, AJ
DELIVERED
ON:
27 MAY 2022
INTRODUCTION
[1]
The appellant, legally represented in the Magistrates Court for the
district of Lindley,
pleaded guilty on one count of contravention of
section 17 (a) read with
sections 1
,
5
,
6
,
7
and
17
of the
Domestic
Violence Act 116 of 1998
. He was sentenced on the 22
nd
November 2020 to three years’ imprisonment. He appeals against
the sentence with leave of this Court.
BACKGROUND
[2]
In his statement in terms of
section 112
(2) of the
Criminal
Procedure Act 51 of 1977
, which the Respondent accepted and was
admitted into evidence as exhibit “A”, the appellant
admitted that:
2.1
On the 3
rd
March 2020 the complainant obtained an interim
protection order and it was confirmed on the 7
th
April
2020.
2.2
The order prohibited him from assaulting, raping, harassing,
threatening or murdering the complainant.
2.3
The order was served upon him and on the 26
th
April 2020,
while it was in force, he contravened it by threatening to harm the
complainant.
2.4
He did not have lawful excuse for his actions.
[3]
The court
a quo
convicted the appellant based on the above
admissions. There was no explanation regarding the nature of the harm
wherewith the
complainant was threatened.
THE
GROUNDS OF APPEAL
[4]
The appellant attacks the sentence on the following grounds:
4.1
The court
a quo
over-emphasised the seriousness of the
offence.
4.2
The court
a quo
over-emphasised the interests of society at
the expense of the personal circumstances of the appellant.
4.3
The court
a quo
did not give proper weight to the following
personal circumstances of the appellant:
4.3.1
That he is 40 years of age;
4.3.2
He has a 21-year-old dependent child;
4.3.3
He attended school up to Grade 7;
4.3.4
He is a self-employed electrician.
4.4
Another court might have imposed a different sentence.
4.5
The court
a quo
failed to consider the sentence of the
appellant in a balanced manner.
THE
LEGAL POSITION
[5]
Sentencing is a matter within the discretion of the trial court.
[1]
A Court of Appeal can interfere with the sentence imposed only if it
is shown that the trial court misdirected itself to such an
extent
that its decision on sentence is manifestly wrong or is so
disproportionate or shockingly inappropriate that no reasonable
court
could have imposed it.
[2]
[6]
In the case of S v Pieters
[3]
at
734 G-H the following is stated:
“
Die bepaling van
‘n spesifieke tydperk van gevanginisstraf in ‘n gegewe
geval kan nie volgens enige eksakte, objektief-geldende
maatstaf
geskied nie, en daar kan dikwels ‘n area van onsekerheid
bestaan waarbinne menings oor die gepaste terwyn van gevangenisstraf
geldeglik kan verskil”
[7]
The purposes of punishment are deterrence, prevention, rehabilitation
and retribution.
[4]
[8]
Ms Kruger, appearing for the appellant, argued that the sentence of
direct imprisonment
is shockingly inappropriate. She submitted that,
based on the personal circumstances of the appellant, the seriousness
of the offence
and the interests of the community, a wholly suspended
sentence would have been appropriate and in the interests of justice.
[9]
Mr. Komane for the Respondent argued that although the nature of the
harm wherewith
the appellant threatened the complainant was not
disclosed, it was sufficiently serious to cause her to report the
matter to authorities.
He argued that a wholly suspended sentence
would not be appropriate. He was of the view however that,
notwithstanding his initial
support for the sentence appealed
against, in the light of fact that the appellant was in custody from
the 22
nd
November 2020 until he was released on bail on
the 22
nd
June 2021 pending appeal, a reduction of the
sentence to twelve months’ imprisonment would be appropriate in
the circumstances.
[10]
Although contravention of a protection order is a serious offence,
deserving of severe punishment
as it was held in Mudau v S
[5]
,
punishment meted out ought to fit the criminal as well as the crime,
be fair to society and be blended with a measure of mercy
according
to the circumstances.
[11]
In the case of S v Dzukuda and Others, S v Tshilo
[6]
, the Constitutional Court held that the right to a fair trial
required “
a
procedure which does not prevent any factor which is relevant to the
sentencing process which could have a mitigating effect on
the
punishment to be imposed from being considered by the sentencing
court
”.
[7]
It follows that any factor which may have a mitigating effect must
necessarily be dealt with in sentencing.
[12]
The appellant made it clear to the court
a
quo
upon his first appearance that he intended to plead guilty to the
charges preferred against him. In the case of S v Matyityi
[8]
the SCA said the following regarding factors to be considered in
determining the genuineness of an accused person’s contrition:
“
It is to the
surrounding actions for the accused rather than what he says in court
that one should rather look. In order for the
remorse to be a valid
consideration, the penitence must be sincere and the accused must
take the court fully into his or her confidence.
Until and unless
that happens, the genuineness of the contrition alleged to exist
cannot be determined. After all, before court
can find that an
accused person is genuinely remorseful, it needs to have a proper
appreciation of, inter alia, what motivated
the accused to commit the
deed, what has since provoked his or her change of heart, and whether
he or she does indeed have a true
appreciation of the consequences of
those actions”.
[13]
The court
a quo
neither enquired into the
precise nature of the harm that was threatened nor established, upon
conviction, what motivated the appellant
to commit the deed and what
has since provoked his change of heart. It would have been helpful to
do so in the circumstances especially
taking into consideration the
very early stage of the proceedings at which he disclosed his
intention to admit guilt. Without the
answers to those pertinent
questions, it is difficult to appreciate the appropriateness of the
sentence imposed on the appellant.
It appears that a simple question
such as, “why did you do it”, would probably have
elicited an answer which would
have placed the court
a quo
in
a better position to properly determine the blameworthiness of the
appellant and thereby justify the sentence imposed.
[14]
A comparison of sentences imposed in cases of
contravention of
section 17(a)
of the Act is necessary to determine
the sentence that would reflect a proper consideration of the triad
of sentencing and achieve
the appropriate purposes of punishment.
[15]
In the case of S v Qhekisi
[9]
,
the accused, whose mother obtained a protection order against him
prohibiting him from assaulting, threatening, insulting or verbally
abusing her, and had a year-old previous conviction for contravening
the same order, assaulted her mother by hitting and injuring
her on
the head with a cup. He swore at her calling her by hers and her
mother’s private parts, saying she is a bitch and
he wants to
kill her, was sentenced to a maximum imprisonment term of five years.
[16]
In the case of S v Mbonde
[10]
,
the accused was convicted of contravention of a protection order in
terms of which she was prohibited from visiting the complainant’s
place. Having visited the complainant without his consent, she
insulted the complainant’s partner. She had two previous
convictions, one of
crimen
injuria
and the other of assault with intent to do grievous bodily harm which
were 4 years and 2 years old respectively. She was sentenced
to two
years’ imprisonment, half of which was suspended for three
years on conditions.
[17]
In case of S v Ndike
[11]
, the
accused, in contravention of a protection order prohibiting him from,
inter
alia
assaulting
the complainant, assaulted her by slapping her several times and
hitting her with a fist, grabbing her and kicking her.
He was
sentenced to 18 months’ imprisonment which was wholly suspended
for five years on conditions.
[18]
Considering that each case has to be dealt with on its own facts, a
cursory look at the facts
of the above cases reveal that the degree
of violence displayed by the accused and their abuse of the
complainants was more serious
that what obtains in this case.
[19]
Taking into account the personal circumstances of the appellant
stated above, the nature of the
contravention of which he was
convicted and the interests of society together with the following
factors:
19.1
That the appellant was incarcerated following his conviction
from the
22
nd
November 2020 to the 22
nd
June 2021 (a
period of nine months) when he was released on bail pending appeal,
19.2
The fact that the court
a quo
did not consider the fact that
the appellant pleaded guilty and took the court
a quo
into his
confidence from his first appearance, even before he obtained legal
representation, which in my view was one of the main
mitigating
factors which, in the circumstances of this case, had to be dealt
with,
19.3
His previous convictions were older than 14 years, and
19.3
The sentences in the cases referred to above,
I
am of the view that the court
a quo
did not properly exercise
its discretion in sentencing the appellant. The sentence induces a
sense of shock and for that reason
the appeal has to succeed.
ORDER
[18]
In the premises, I would make the following order:
1.
The appeal against sentence is upheld.
2.
The sentence imposed by the court
a quo
is set aside and it is
substituted with the following sentence:
2.1
The appellant is sentenced to 18 months’ imprisonment, half of
which is suspended
for a period of two years on condition that the
appellant is not convicted of contravention of
section 17(a)
of the
Domestic Violence Act 116 of 1998
committed during the period of
suspension.
2.2
The order in terms of
section 103
(1) of the
Firearms Control Act, 60
of 2000
is confirmed.
2.3
The above sentence is antedated to the 22
nd
November 2020.
M.S
LITHEKO, AJ
I
concur
P.E
MOLITSOANE, J
For
the Applicant: Ms S Kruger
Instructed
by:
Legal Aid South Africa
BLOEMFONTEIN
For
the First Respondent:
Adv T Komane
Instructed
by:
Office of the Director of Public Prosecutions
BLOEMFONTEIN
/bmokhoro
[1]
R v Mapumulo
1920 AD 56
at 57.
[2]
S v Bogaards
2013 (1) SACR 1
(CC) at paragraph 41.
[3]
1987
(3) SA 717 (A).
[4]
ASS Terblanche: A Guide to Sentencing in South Africa (3rd Edition)
at 171
et
seq
.
[5]
(547/13)
[2014] ZASCA 43
(31 March 2914), unreported, at paragraph
6.
[6]
2000
(4) SA 1078 (CC).
[7]
At
paragraph 12.
[8]
2011
(1) SACR 40
(SCA) at paragraph 13.
[9]
(166/2015)
[2015] ZAFSHC 182
(17 September 2015).
[10]
(CA & R251/2015,86/2015) [2015] ZAECGHC 93 (17 September 2015).
[11]
(CA & R244/2018) [2018] ZAECGHC 103 (25 September 2018).