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[2022] ZAKZPHC 33
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Dlomo v S (459/2014) [2022] ZAKZPHC 33; 2023 (1) SACR 314 (KZP) (5 August 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case No: 459/2014
In the matter between:
THOKOZANI LUNGISANI
DLOMO
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
On
appeal from:
KwaZulu-Natal Division of
the High Court, Pietermaritzburg (Ngwenya AJ sitting as court of
first instance):
1.
The appeal against sentence succeeds.
2.
The sentence of life imprisonment is set aside and is replaced with a
sentence
of 22 years’ imprisonment, which is antedated in terms
of section 282 of Act 51 of 1977 to the date of sentence, namely 17
May 2012.
JUDGMENT
MOSSOP J: (POYO-DLWATI
ADJP and MLOTSHWA AJ concurring)
[1]
Section 51(1) of the Criminal Law Amendment Act
105 of 1997 (the Act) provides that a high court sentencing a person
convicted of
an offence mentioned in Part 1 of the second schedule to
that Act shall impose a sentence of life imprisonment. The appellant
in
this matter was alleged to have committed an act of planned or
premeditated murder, and after a trial before Ngwenya AJ, was
convicted
of that murder. Planned or premeditated murder is an act
identified in Part 1 of the second schedule to the Act, and the
appellant
was consequently sentenced to life imprisonment, the court
a quo not being satisfied that there were any substantial or
compelling
circumstances as contemplated in section 51(3)
(a)
of the Act to justify a departure from the minimum sentence
prescribed.
[2]
Subsequent to his conviction and sentence, the
appellant applied for leave to appeal and was granted the right to
appeal only against
his sentence to a full bench of this division.
When the appeal was argued, Ms Gates appeared for the appellant and
Mr Mthembu appeared
for the State. Both are thanked for their helpful
submissions.
[3]
In a supplemented notice of appeal, the
appellant sought leave to reopen his case and adduce further
evidence. However, when the
appeal was called, Ms Gates informed the
court that such application had been abandoned for reasons that need
not be dealt with.
[4]
The basis upon which it was alleged that the
murder was premeditated is simply stated. The deceased in this
matter, Mr Phumanezwi
Mathe (the deceased), was apparently believed
by the appellant to have been the person responsible for murdering
the appellant’s
brother in 2006, some five years before the
deceased ultimately met his fate at the hands of the appellant. The
State’s case
was that this prior act by the deceased led the
appellant to avenge the death of his brother. The murder was
accordingly premeditated
and fell within the purview of Part 1 of the
second schedule to the Act, and the appellant was consequently
subject to the prescribed
minimum sentence of life imprisonment. The
appellant denied that he was guilty of the murder.
[5]
The act of murder for which the appellant was
convicted occurred at a bottle store, in the rural setting of
Makhabeni, in the district
of Kranskop. The evidence revealed that
the deceased was outside the bottle store with another person, a Mr
Hlongwane (Mr Hlongwane),
on the afternoon of 8 April 2011 when the
appellant drove up in his white Volkswagen Jetta motor vehicle. The
deceased and Mr Hlongwane
walked towards the motor vehicle, from
which the appellant alighted. The appellant called the deceased by
his clan name, ‘Mkhabela’,
pointed a firearm at him and
fired a shot. The deceased turned and fled but was pursued by the
appellant who ruthlessly and mercilessly
cut him down in a fusillade
of shots. The post mortem examination revealed that there were five
shots to the deceased’s head,
and at least six shots to other
parts of his body, some to the deceased’s back.
[6]
Other than Mr Hlongwane, who unfortunately
passed away before the appellant’s trial commenced, there were
two other witnesses
to the shooting: a Mr Mathe and a Mr Mzolo, the
latter being the proprietor of the bottle store. Both of them had
known the appellant
for a number of years, with Mr Mathe having known
the appellant since childhood. Both of them also knew the appellant’s
motor
vehicle. There can accordingly be no doubt regarding the
identity of the person who shot the deceased.
[7]
This appeal turns on the meaning of the words
‘planned’ or ‘premeditated’. If the murder
was planned or
premeditated, the appeal must perish. The cold-blooded
brutality of the deceased’s death would demand the most severe
sentence.
If it was not planned or premeditated, then section 51(1)
of the Act would not apply. Section 51(2)
(a)
of the Act would then apply with a minimum sentence of 15 years’
imprisonment being prescribed.
[8]
A
finding of premeditation requires the employment of inferential
reasoning. The court has to consider the facts of the case and
then
deduce from those facts whether the commission of the offence was
premeditated or not. This is partly as a consequence, as
was noted in
S
v Raath
,
[1]
of the legislature not having defined the meaning of ‘planned’
or ‘premeditated’.
[9]
The precise wording of Part 1 of the second
schedule to the Act relevant to this matter reads as follows:
‘
Murder,
when-
(a)
it was planned or premeditated;’
It
is upon this meaning that the State relies. The wording is brief, and
would appear to be clear in its meaning, yet it has generated
some
dissensus when it has previously been considered.
[10]
In
S
v PM
,
[2]
the court considered the meaning of the words ‘planned’
and ‘premeditated’ and came to the conclusion that
they
mean different things. ‘Premeditated’ was found to mean:
‘…
something
done deliberately after rationally considering the timing or method
of so doing, calculated to increase the likelihood
of success, or to
evade detection or apprehension.’
‘
Planned’
was found to mean a reference to:
‘…
a
scheme, design or method of acting, doing, proceeding or making,
which is developed in advance as a process, calculated to optimally
achieve a goal.’
[11]
In
S
v Jordaan
,
[3]
the court found the reasoning in
PM
to be unconvincing regarding these two words, and found that the
element of ‘rational consideration’ referred to by
the
court in
PM
in its definition of ‘premeditation’ was equally inherent
in any exercise of planning. In an appeal from the judgment
in
PM
,
[4]
the Supreme Court of Appeal found it unnecessary to determine whether
the phrase ‘planned or premeditated’ denotes
a single
concept or course of action. The position adopted by the Supreme
Court of Appeal was that the circumstances under which
a particular
crime was committed, and the facts peculiar to that case, would
determine whether the offence was planned or premeditated.
That would
seem to indicate that the Supreme Court of Appeal did not find a
difference in meaning between the two words.
[12]
In
Raath
,
[5]
a matter decided before
PM
,
no distinction in meaning was drawn
between
these two words and they were considered to describe the same type of
conduct. A planned or premeditated murder was found
to be a concept
that embraced a deliberate weighing-up of the proposed criminal
conduct, as opposed to committing the crime on
the spur of the
moment.
[13]
The ordinary dictionary meaning of the word
‘premeditated’ is:
‘
to
think out and plan an action, especially a crime, beforehand.’
[6]
It
will readily be discerned that the word ‘plan’ appears in
the definition.
[14]
In my view, the distinction drawn by the court
in
PM
between these two words is artificial and is strained, and I
consequently favour the approach in
Raath
and in
Jordaan
to the approach in
PM
.
[15]
The only factor that could have indicated that
there was a premeditated course of conduct embarked upon by the
appellant is the
alleged murder of the appellant’s brother. It
provides the motive for his subsequent conduct. The State indicated
in its
summary of substantial facts that accompanied the indictment
that:
‘
2.
During March 2006 the accused’s brother was assaulted and
passed away. The deceased
was arrested for the murder of the
accused’s brother but later released.
3.
The accused believed that the deceased had killed his brother. He
decided to
kill the
deceased
in order to avenge the death of his brother.’
[16]
The State witness, Mr Mathe, referred to the
death of the appellant’s brother in his evidence in chief, and
stated the following
when questioned by the State advocate:
‘
Can
you think of any incident that occurred that you know of that could
have led the accused to act as he did? --- Before
there was an
incident that occurred but we thought about it as something that was
water under the bridge, M’Lord.
In
relation to the shooting of your father’s brother how long
before did it happen? --- It was for more than some years, M’Lord,
since that incident had occurred.’
[17]
Mr Mathe was indeed correct that the incident
to which he referred had occurred a number of years prior to the
shooting of the deceased.
Approximately five years had passed and it
is perhaps understandable that the incident was regarded by some
members of the community
as ancient history. The other direct witness
to the events, Mr Mzolo, also mentioned the death of the appellant’s
brother
and mentioned that it had occurred ‘a couple of years
ago’.
[18]
That was the sum total of the evidence led by
the State on the issue of premeditation.
[19]
In
Raath
,
the court held that:
‘
.
. .
only
an examination of all the circumstances surrounding any particular
murder, including not least the accused's state of mind,
will allow
one to arrive at a conclusion as to whether a particular murder is
“planned or premeditated”. In such an
evaluation
the period of time between the accused forming the intent to
commit the murder and carrying out this intention
is obviously of
cardinal importance but, equally, does not at some arbitrary point,
provide a ready-made answer to the question
of whether the murder was
“planned or premeditated”.
’
[7]
[20]
There was no evidence in the court a quo at all
about the appellant’s state of mind. This is, perhaps, not
surprising in the
light of his plea of not guilty. The appellant
testified in his defence. Under cross-examination, he was asked
whether he was angry
that the deceased had killed his brother but was
subsequently released. He replied, phlegmatically, that
‘
M’Lord,
I would say nothing angered me that much because I trusted in God and
said that God gave and God took, so what I thought
about fixing, was
the matter of children that were left behind.’
[21]
The appellant further testified that he had
left Durban at 09h00 on the day that the deceased was murdered. He
was returning to
his family home, briefly, to deliver some money
which was to be utilised to rent a truck that was to transport some
cows which
formed part of an ilobolo dowry. He went on to state that:
‘…
I
am also a person that does not usually go home, I go home when there
is a reason, like for instance when I bring pesticides for
cows and
goats and stuff.’
[22]
When he was briefly cross-examined by the
State, he answered in the following fashion:
‘
Yes,
I put it to you that you wanted revenge for the death of your
brother. --- M’Lord, no, I was not going to leave a person
that
stays in Durban, with me and go and hurt somebody who lives in my
ancestral home, while I live in Durban, when they both did
the same
thing, that was to murder my brother, M’Lord.’
[23]
The appellant called the evidence of his mother
who confirmed that he returned home occasionally. He also called the
evidence of
Mr Mthobisi Mtolo, who confirmed that the appellant
worked, as did he, as a vendor in Berea in Durban.
[24]
None of this evidence was seriously challenged
by the State. It must accordingly be accepted that the appellant was
ordinarily resident
in Durban but that from time to time he returned
home, often briefly. There was no direct evidence of planning or
premeditation
or evidence of when the appellant decided to kill the
deceased. It is by no means certain, in the absence of any evidence
to that
effect, that on 8 April 2011 the appellant had planned to
return home and kill the deceased. There was no evidence to establish
that the appellant knew that the deceased was at that rural area,
and, more specifically, that the deceased was to be found at
the
bottle store. No evidence was led as to why, after a period of five
years, the appellant had decided that 8 April 2011 was
the day on
which he would kill the deceased. There was also no evidence of the
circumstances under which the appellant acquired
the firearm that he
used to kill the deceased.
[25]
Ultimately,
the court a quo determined that the appellant had falsely denied that
he was the gunman. That decision cannot be faulted.
The lengthy
period between the death of his brother and the murder of the
deceased provided ample time for the appellant to have
formulated a
plan to kill the deceased. But there is no evidence that he actually
did so. It is possible that he may have constructed
such a plan and
bided his time for five years until the correct moment presented
itself to give effect to his intention. On the
other hand, there may
have been no such plan, but he may have held a grudge that festered
within him until it finally exploded
in a paroxysm of violence on 8
April 2011. If the latter is what occurred, then Mr Mthembu contended
that this also demonstrated
premeditation. During argument he
referred the court to
Kekana
v S
[8]
where the court stated:
‘
In
my view it is not necessary that the appellant should have thought or
planned his action a long period of time in advance before
carrying
out his plan. Time is not the only consideration because even a few
minutes are enough to carry out a premeditated action.’
It
was argued that the period of time between the appellant arriving at
the bottle store, and him seeing the deceased, was sufficient
time
for him to formulate a plan and put it in to action. He thus acted in
a premeditated fashion, so the argument went.
[26]
There are some indications that the murder of
the deceased was a targeted murder, which invites the inference that
it was premeditated.
The deceased was in the presence of Mr Hlongwane
at the time that he was murdered. A volley of shots was fired that
day, but Mr
Hlongwane was not struck by any of them: all appear to
have been directed at the deceased.
[27]
However, on a conspectus of all the evidence,
it seems more probable to me that the appellant returned home and had
a chance encounter
with the deceased at the bottle store. The
invitation by the State to conclude that the death of the appellant’s
brother
five years before inevitably made the murder of the deceased
a premeditated murder, is an invitation that I regret I must, in all
the circumstances of the matter, decline. There is, in my view,
insufficient evidence to establish that the murder of the deceased
was a planned or premeditated. There are too many variables that
would need to align to make it a premeditated murder. I do not
accept
that the time between the appellant seeing the deceased at the bottle
store and the moment that he shot him constitutes
evidence of
premeditation. If that were the case, virtually all murders would be
premeditated. The mere fact that the appellant
had a firearm in
itself does not establish premeditation. I conclude therefore that
the State did not establish beyond reasonable
doubt that the murder
was planned or premeditated.
[28]
It follows that the question of sentence must
be considered afresh. At trial, all that could be said for the
appellant was said.
At the end of the day, the deceased met a cruel
death at the hands of a remorseless killer. In the circumstances, a
sentence of
22 years’ imprisonment would meet the needs of the
matter.
[29]
I accordingly grant the following order:
1.
The appeal against sentence succeeds.
2.
The sentence of life imprisonment is set aside
and is replaced with a sentence of 22 years’ imprisonment,
which is antedated
in terms of section 282 of Act 51 of 1977 to the
date of sentence, namely 17 May 2012.
MOSSOP
J
APPEARANCES
Counsel for the
appellant
Ms J Gates
Instructed
by:
Pietermaritzburg Justice Centre
20
Otto Street
Pietermaritzburg
Counsel for the
respondent Mr
M E Mthembu
Instructed
by
Director of Public Prosecutions,
Pietermaritzburg
Date of Hearing
:
22 July 2022
Date of Judgment
: 5
August 2022
[1]
S v
Raath
2009 (2) SACR 46
(C) para 16.
[2]
S v PM
2014 (2) SACR 481
(GP) para 36.
[3]
S v
Jordaan and others
2018 (1) SACR 522
(WCC) para 127.
[4]
Montsho
v S
[2015] ZASCA 187.
[5]
S v
Raath
2009 (2) SAC 46 (C) para 16.
[6]
Oxford
South African Concise Dictionary
2
ed (2016).
[7]
S
v Raath
supra
para 16.
[8]
Kekana
v S
[2014] ZASCA 158
para 13.