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2022
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[2022] ZAFSHC 258
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Ntsane v S (A12/2022) [2022] ZAFSHC 258 (13 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: A12/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
MPHO
KENNETH NTSANE
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS,
J
et
BOONZAAIER,
AJ
JUDGMENT
BY:
REINDERS,
J
RESERVED
ON:
3
OCTOBER 2022
DELIVERED
ON:
13
OCTOBER 2022.
[1]
The appellant was arraigned in the Regional Court held in Welkom on a
charge of murder
(read with the provisions of
s 51(2)
of the
Criminal
Law Amendment Act 105 of 1997
). It was alleged that on 30 November
2019 at Welkom the appellant unlawfully and intentionally killed Mr
Frans Tulani Mabaso (hereafter
referred to as “the
deceased”).
[2]
The appellant pleaded not guilty and elected to remain silent.
Admissions were made
by the appellant in terms of s 220 of the
Criminal Procedure Act 51 of 1977 (the “CPA”) which
included the report on
the medico-legal post mortem examination which
was held on 2 December 2019 in respect of the deceased.
[3]
The said report revealed two stab wounds and the cause of death to be
a stab wound
to the chest. The identity of the deceased was admitted
and likewise that the deceased had not sustained any further injuries
until
the post mortem was conducted.
[4]
During testimony at a later stage by the accused it became common
cause that he had
stabbed the deceased twice – in self-defence.
[5]
Two witnesses testified on behalf of the state. The first witness
confirmed an altercation
between the deceased and the appellant and
the witness testified that after the deceased slapped the appellant
once, the appellant
stabbed the deceased twice with a pocket knife.
The deceased walked away and collapsed at the corner of the street
where he succumbed
to his wounds. The second witness’s evidence
was not placed in dispute and he testified overhearing appellant
afterwards
telling people that he had stabbed the deceased.
[6]
The magistrate considered the evidence and came to the conclusion
that on appellant’s
version he had exceeded the bounds of
self-defence. In this respect the magistrate emphasized the first
wound as testified by the
appellant to have been directed at the
chest of the deceased and that appellant had to foresee that the
deceased could die as a
result thereof. The magistrate stressed that
appellant did not sustain a scratch in the altercation and, assuming
the appellant’s
version to be true that the deceased at the
time was disarmed, the deceased was not a threat to the appellant.
The magistrate therefore
found that the appellant exceeded the bounds
of self-defence or, put differently, appellant was not necessitated
to defend himself
by stabbing the deceased in the manner as
aforesaid. The appellant was therefore negligent in causing the death
of the deceased.
The appellant was accordingly convicted on culpable
homicide and sentenced to ten years’ imprisonment.
[7]
The magistrate granted leave to appellant to appeal both his
conviction and sentence.
[8]
In respect of the conviction it was submitted on appeal that the
magistrate erred
in convicting the appellant on the evidence of a
single witness, had erred in rejecting the version of the appellant
and that the
appellant should have been given the benefit of the
doubt and acquitted. On my reading of the magistrate’s reasons
she accepted
much of the appellant’s version – for that
reason explaining the conviction on culpable homicide instead of
murder.
Although the single witness’s version was found to be
holistically reliable, it became less important therefore as the
appellant’s
version in essence confirmed it. It follows that I
am not convinced that the magistrate erred in convicting the
appellant as she
did. The appeal against the conviction should be
dismissed.
[9]
In respect of sentence it is trite that “sentencing lies in the
discretion of
the trial court”.
See:
Nkabinde and Others v S
2017 (2) SACR 431
(SCA) at para
[51]
In
the absence of a material misdirection by the trial court, an
appellate court cannot approach the question of sentence as if
it
were the trial court and then substitute the trial court’s
sentence simply because it prefers to.
See:
S v Malgas
2001(1) SACR 469 (SCA) at para [12]
[10]
Before us it was contended that the sentence was inappropriate and
induces a sense of shock.
It was submitted that the court
over-emphasised the seriousness of the offence and did not take into
account properly or at all
the personal circumstances of the
appellant who he had at the time been awaiting trial for a period of
almost two years in custody.
At first glance I thought the sentence
at least to be harsh. However, the magistrate in her reasons for
sentence undoubtedly correctly
mentioned the seriousness of the
offence and the appellant’s previous convictions of assault and
rape. Appellant’s
record of previous convictions confirmed a
conviction of assault on the 11
th
of January 2000 and
assault with the intention to do grievous bodily harm, but more
importantly on the 22
nd
of February 2013 a conviction of
rape and a sentence of eight years’ imprisonment. This incident
occurred approximately six
years after the aforementioned conviction
on 30 November 2019. This was in my view a seriously aggravating
factor which rightly
weighed heavily with the magistrate. As
mentioned, it is trite that sentence is predominantly in the hands of
the trial court and
that the court of appeal should in general only
interfere in the event of a misdirection or the sentence imposed is
shockingly
inappropriate. None of these could be found by me and in
particular the magistrate did not misdirect herself either on the
facts
or on the law. The appeal against the imposed sentence
can therefore likewise not succeed.
[11]
The following order will issue:
The
appeal against both conviction and sentence is dismissed.
C.
REINDERS, J
I
concur.
S.
BOONZAAIER, AJ
On
behalf of the Appellant:
Adv.
P Mokoena
Instructed
by: Legal
Aid South Africa
On
behalf of the Respondent:
Adv. BG Claassens
Instructed
by: Director
of Public Prosecutions