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[2021] ZAGPPHC 117
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Chaza v S (A378/2019) [2021] ZAGPPHC 117 (10 February 2021)
SAFLII
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IN
THE REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURTOF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A378/2019
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES:YES/NO
REVISED
DATE:10/02/2021
BULELANI
PETRUS
CHAZA
APPELLANT
and
STATE
RESPONDENT
DATE
OF HEARING:
This matter was enrolled for hearing on
17 AUGUST
2020,
but was dealt with or determined on the basis of the
papers or record and written argument filed on behalf of the parties,
without
appearance and oral argument.
DATE
OF JUDGMENT:
This judgment was handed down electronically by
circulation to the parties’ representatives by email. The date
and time of
hand-down is deemed to be
FEBRUARY 2021
JUDGMENT
KHUMALO
J (SNYMAN AJ concurring)
Introduction
[1]
The Appellant, exercising his automatic right of appeal, following
his
conviction on a premeditated murder charge and sentence to life
imprisonment by the Regional Court, Benoni (the court a quo) on
August 2016, appeals against both his conviction and sentence. He was
simultaneously charged and convicted of illegal possession
of a
prohibited firearm and also of ammunition for which he was sentenced
by the court to a period of 5 years and 12 months imprisonment,
respectively. The sentence of twelve months imprisonment was ordered
to run concurrently with the sentence of five years imprisonment.
He
is only proceeding with the automatic appeal.
[2]
He was duly represented during the trial and pleaded not guilty to
all
the charges. On the charge of murder, that he intentionally and
unlawfully murdered one Phatheka Portia Cokotho (the deceased) on
25
September 2013 at or near Daveyton, by stabbing the deceased
repeatedly with a knife in front of four eye witnesses, he was
convicted on the admissions he made in terms of s 220 of the Criminal
Procedure Act 51 of 1977 (CPA) relating to the deceased cause
of
death, which according to the post mortem report were multiple stab
wounds, seven in total and the evidence of two of the four
eyewitnesses that were present at the scene. Two of the four
witnesses have since disappeared and did not testify during the
trial.
[3]
The salient facts were that on 25 September 2013 in the early
evening,
the deceased who was in a relationship with the Appellant
was attacked whilst walking with her friends from a tavern at […]
Street. The deceased was earlier, prior to being attacked seen
talking to her boyfriend and seemed to have been quarrelling. The
court a quo found the state to have proven the Appellant’s
guilt beyond reasonable doubt as the person who stabbed the deceased.
[4]
Although the Appellant does not deny being in a relationship
with the
deceased, he persists in his denial that he was the perpetrator that
was seen by the eye witnesses, hence the appeal.
The contention is
therefore on the identity of the perpetrator and the observations
that are alleged to have been made by the two
witnesses that
testified. The Appellant disputes that the witnesses were able to see
or had enough time to see the perpetrator
to be able to correctly
identify him. He alleges that the witnesses were influenced. The
Plaintiff also challenges the evidence
of the witnesses on the basis
that it was inconsistent, improbable and they contradicted each
other. He consequently contends that
the court a quo erred in finding
the testimony of the two eye witnesses credible and rejecting his
evidence.
[5]
Furthermore the Appellant contends that the sentence of life
imprisonment
is strikingly inappropriate as to induce a sense of
shock and another court, might well impose a lesser sentence. He
reckons the
court erred in over-emphasizing the seriousness and
prevalence of the offence, the interest of society and the deterrent
effect
of the sentence. It attached too much weight towards
retribution.
Evidence
[6]
According to Noluthando Phalwa (Noluthando), the first state witness
to
testify, she met the deceased for the first time on the day of the
incident at […] Street. Noluthando had arrived at Dungeni
in
the company of two other ladies, that is, Mbali and Nomalanga and
found the deceased sitting with Ntombana who was known to
her and a
gentleman that was unknown to her. The three were drinking alcohol.
As they were drinking and chatting the Appellant
arrived and stood at
the gate, about 5 to 6 meters from where they were sitting. The
deceased stood up and went to chat to the
Appellant. Although
Noluthando could not hear the conversation between the deceased and
the Appellant, she could recognise that
there was tension between
them. After their chat the Appellant left and the deceased came back
and joined them. All this happened
around 16h00. The deceased said
she was breaking up with the Appellant and the Appellant does not
want that so they were fighting.
The deceased then spoke to Ntombana
(who is the deceased’s relative), on the side, whilst they
continued drinking. At about
18h30 they all left and walked to
Ntombana’s place at Bhele. Whilst walking they saw the
Appellant and his friend standing
at the corner of Dungeni and
Sibisini. Ntombana pointed at the Appellant saying to the deceased
“there is your person by
the passage.” They also then
looked at the Appellant who was with another person. It looked like
the two were exchanging
clothes, sort of the jackets or hats. The
Appellant was putting on a hoodie. The Appellant then followed them
when they entered
[…] Street. Near the passage the Appellant
grabbed the deceased from the front and stabbed her several times in
front of
them without saying anything. The other three ladies then
ran away. When the Appellant started stabbing the deceased, the
latter
was holding onto Noluthando, who therefore could not run away.
The deceased then fell on the wired fence, letting go of her hand.
People started coming to the scene and the Appellant ran away. It was
dark already when all this happened but there were Apollo
street
lights 10 meters from the incident illuminating the street.
Noluthando therefore says she had a proper look at the Appellant
when
he was standing at the corner of the street. She ran to Ntombana’s
place to inform the deceased’s relatives. She
came back with
people from Ntombana’s place and found the deceased, who was no
longer talking, covered with a sheet. She
recognised the Appellant as
when he arrived at the gate the deceased had told them that she was
going to her boyfriend.
[7]
Noluthando’s testimony under cross examination was that at
Dungeni she sat with her back against the gate and did not see the
face of the person the deceased went to talk to at the gate
or take
notice of the clothes that person was wearing. She assumed that it
must be the same person. She could make out that the
deceased and the
Appellant were quarrelling as the deceased was throwing her hands in
the air with an angry facial expression whilst
talking to the
Appellant . She was not drinking. When they first saw the Appellant
and his friend at the corner they were about
10 to 12 meters away.
Appellant was putting on a hoodie and whatever else he exchanged with
the other person which is a lumber
jacket with long sleeves.
At
the time the Appellant was facing them.
The Appellant then walked
behind them when she and the others were walking up […] Street
and about to turn into […]
Street. The Appellant then stabbed
the deceased who broke into a scream.
[8]
Subsequent to the incident, the Appellant told them to change their
statements
to say that they did not see him. He also from Modderbee
prison sent one lady who stays in the same street as her, to ask her
and
the others to withdraw the case. He was reprimanded for that. The
same lady once accosted and asked her if she can send the Appellant
‘a please call me’ so that the Appellant can speak to her
directly. She refused. With regard to the stabbing, she said
the
other four ran away when the Appellant started stabbing the deceased.
They saw the initial stabbing not the entire stabbing.
It was put to
her that the Appellant’s version was that the deceased had many
boyfriends. The Appellant and the deceased
occasionally met at
drinking places and then got together. In that way they were not
boyfriend and girlfriend.
[9]
The second witness, Mbali Mkhalali (Mbali) testified in camera due to
the threats she received a month before the trial. According to Mbali
she grew up with Ntombana and had just got to know the deceased
two
months before the incident. She had heard from Ntombana that the
Appellant was the deceased’s boyfriend two weeks before
the
incident. On the day of the incident she arrived at […]Street,
with Nomalanga and Noluthando and found Ntombana, Sipho
and the
deceased there drinking wine. After the three had finished the wine
they left the place and walked to Ntombana’s
place in Bhele.
The deceased, Noluthando and Ntombana were walking ahead of them and
she was following behind with Nomalanga. They
were walking
approximately two (2) meters apart. They left Sipho at Dungeni. The
Appellant emerged from nowhere and walked passed
them to the
deceased. She then heard the deceased scream calling Ntombana’s
name. She ran to the passage to see what was
going on and found that
the deceased has fallen. She turned around and ran back to Ntombana’s
place to call Ntombana’s
mother. She however also said when she
heard the deceased scream she did not look at her she just ran away
because the deceased
fell on her side. She also said when she turned
to look at the passage she saw the Appellant pressing the deceased
against the
wall. The Appellant had walked past them to get to the
deceased. Their route to Ntombana’s place was going to pass
through
the passage. The Appellant came from […]Street. She
also explained that when they were at […] Street, the deceased
and the Appellant seem to have been fighting. At some stage she had
left the place where they were drinking to go to the shops
when she
came back the Appellant and the deceased were standing at the gate.
She does not know what started the argument or fight
but there was a
lot of noise. Ntombana looked scared and informed her that the
deceased and the Appellant were fighting. The Appellant
was alone
when he stabbed the deceased. Ntombana was said to be in Johannesburg
now.
[10]
Mbali’s testimony under cross examination was that the
Appellant came from
behind walking fast, wearing a black jacket with
pockets that had a brownish colour and a brown beanie. She did see
the Appellant's
face when he was holding the deceased against the
wall. The Appellant and the deceased had their backs against them,
facing away
from her, but she knows him as she had seen him before at
Ezidudleni, standing with other boys by the corner. The next time she
saw him was at the gate at Edumeni. She confirmed that when going to
Ntombana's place the deceased and Noluthando were walking
ahead of
them holding hands and about to enter into the passage. She and
Nomalanga were still walking behind when Ntombana and
the deceased
were almost into the passage. That is when she heard the deceased
screaming calling Noluthando’s name. She then
saw the deceased
falling on her side. She did not get into the passage she turned back
and ran away down Khakhu Street and used
the other passage to get to
Ntombana’s place. The Appellant took out a knife and stabbed
the deceased and thereafter ran
into the passage getting away. She
saw the Appellant stab the deceased once on the chest and she then
ran away. She said when she
ran to call Ntombana’s family,
Noluthando was standing on the side. When she came back with
Ntombana’s mother and sister,
a lot of people had gathered
there and the deceased was covered with a white cloth. Noluthando was
not there, she had gone home.
They got into the car that was hired to
take the deceased to the clinic. The deceased was still alive and got
silent at the clinic.
She saw the wounds on the deceased's chest,
head and ribs when they were at the clinic. They thereafter went to
the police to make
statements. She only saw Noluthando the next day.
She said what made her certain that it was the Appellant that stabbed
the deceased
was because the Appellant and the deceased were in a
relationship. It was put to her that the Appellant's version was that
the
deceased had many boyfriends.
[11]
In response to the court’s question she confirmed that she left
Edumeni to
go to the shops and encountered the deceased and the
Appellant at the gate when she came back.
[12]
Further evidence that was led was in regard to the two other charges,
the conviction and sentence of which
is not contested by the
Appellant. The state dosed its case on the murder charge.
[13]
Appellant’s version was that he had a four-year relationship
with the deceased.
She knew the first witness Noluthando as she stays
near his aunt's place. He has also seen Noluthando with the deceased
at a drinking
place prior to the incident. Noluthando was therefore
lying when she said she saw or met the deceased for the first time on
the
day of the incident. He however has never spoken to Noluthando
before. He also knew Mbali, the second witness through the deceased
from seeing both of them drinking at the tavern. He only met once and
spoke to Mbali after the deceased has passed on. Prior to
that they
have never spoken. He got to know about the incident as somebody
called Pontsho who happened to stay near the home of
the deceased’s
relative called him the next day and informed him that the deceased
has passed away. Pontsho has since passed
away. He did nothing as in
their four-year relationship they never really had a committed
relationship. The deceased was a type
of girl who would go home with
anybody that buys her alcohol. On the day of the incident he was at
the square where he operates
his business as a hawker. It is all lies
that he killed the deceased. Both witnesses have lied. The two
witnesses were influenced
by Ntombana who told them what to do and
say. He knew that because Ntombana once paid him a visit in prison.
The two state witnesses
heard of the incident from Ntombana.
[14]
The Appellant further testified under cross examination that his four
years relationship
with the deceased was a secret and all that time
he was aware that the deceased was also involved with other people.
Amongst the
deceased’s friends he was more familiar with
Ntombana, who is the deceased's relative. He knew the two state
witnesses as
they stay at Maxhoseni where his aunt stays. He would
sometimes see them when he is at his aunt’s place but has never
had
a conversation with them. He did not know if Noluthando and the
deceased knew each other prior to her death and he also could not
dispute that Noluthando was seeing the deceased for the first time
that day. With regard to Mbali, besides seeing her near his
aunt’s
place he once saw her at Basotwini section. He greeted Mbali and had
a chat with the deceased. This happened a long
time ago before Portia
passed away.
[15]
He argued that Noluthando said she did not see the face of the person
at the gate
but heard from Ntombana that the deceased has gone to see
her boyfriend. She however took the person to be the deceased's
boyfriend.
He alleged that what made Mbali not to look at him when
she was testifying is because she was shameful of her lies. Ntombana
visited
him when he was in prison to apologise and these were
Ntombana’s friends that were lying. Appellant also argued that
Mbali
and Noluthando testified about the same incident but
contradicted each other as to whether he had company at the time when
they
saw him at the corner. He denied killing the deceased. He said
on the day in question he was at the Square and left around 17h00
to
go home. He heard of the deceased’s death the next day. The
last time he saw the deceased was on a holiday, the 24
th
of September 2013, a day before she was murdered. The deceased was
with Ntombana and some other males drinking at a tavern.He did
not
talk to the deceased but they greeted each other because they were in
a secret relationship and she was with other people.
Their secret
relationship meant she can go with him home after she has bought her
a few beers. If she is with somebody, he will
not bother her and she
will also not bother him if he is with his partner. Similarly,
Ntombana will approach him when he has money
and he will give
Ntombana money to do her hair or to buy takkies and when he feels
that he wants to partake In any sexual activity
he will calI Ntombana
and they will do it. Ntombana did not appreciate it when he stopped
giving her money, so they ended up not
being in good terms. Ntombana
once told him that one day he will be sorry for that. He thought what
she meant was that one day
when he has nobody to go home with, she
will turn him down. Ntombana also visited him at Modderbee prison
where she specifically
reminded him of what she said and what she
meant by it that she will one day lend him in trouble. He said the
deceased was involved
with many people around the location with whom
she had sex, he therefore never followed up on the information he got
that the deceased
had passed away as he did not care.
[16]
The Defendant closed its case.
[17]
On the evaluation of the evidence the court a quo found that
Noluthando’s testimony
was presented logically and in a
satisfactory manner and had no inherent improbabilities or
contradictions. She was also honest
on what she heard and observed
happening between the deceased and the person who was said to be her
boyfriend at the gate, including
not being able to confirm certain
things, but circumstantially. The court concluded that in view of
what happened prior to the
stabbing and how the stabbing took place
it cannot be said that Noluthando was not able to identify the
perpetrator. The Appellant
was pointed out to her in the street to be
the boyfriend of the deceased’s person when there was
sufficient light and time
to look at him. The Appellant then right in
front of her, stabbed the deceased whose hand Noluthando was holding
at the time.
[18]
The court a quo took note of the second witness Mbali’s
vulnerability when
testifying, however found her evidence to have
been given in an understandable manner and that she earnestly
answered all questions
put to her although sometimes not with
sufficient detail. Mainly Mbali saw the Appellant at the gate
with the deceased therefore
not questionable that Appellant was the
boyfriend that was standing at the gate having a quarrel with the
deceased, even though
he disputes having seen the deceased or any of
them that day. The court looked at the fact that Mbali also saw the
Appellant when
he suddenly appeared and walked past them and when she
looked at the screaming deceased who was being stabbed by the
Appellant.
The court understood that she did not see the other person
who was observed by Noluthando as she was walking a few meters behind
Noluthando Ntombana and the deceased, and seemingly less aware of
what was happening at that corner. The court a quo accepted that
contradictions on such instances do happen however did not render the
evidence unreliable. According to it, it only shows that
due to their
positions the witnesses can observe things differently and at
different stages. Proving that the testimony was un
adulterated and
authentic. It referred to the discrepancy about what the Appellant
was wearing and their reporting to Ntombana’s
relatives,
pointing out that each might have observed same scene at different
times.
[19]
The court compared the version of the state witnesses with
Appellant’s bare
denial that he was there that day and his
attempt to trivialise the relationship he had with the deceased. His
allegations of being
framed and the strange reason he gave why he
would be framed by a person who herself did not attend court and was
probably not
aware of the proceedings was found to be baseless. The
matter was to have proceeded 3 years ago but the Appellant was on the
run
from then until 2016 when he was arrested on a different case.
The witness was always available during the court appearances in
2013
and was reported not found in 2016 even though Noluthando indicated
where she can be found. The court a quo also found that
the Appellant
was not truthful to the court about when he last saw the deceased.
His version that he last saw her a day before
the incident, when he
has also said he saw her about a week before the incident accompanied
by Noluthando or seen her with Mbali
were found to be untruthful. He
also could not rule out that Noluthando and the deceased met for the
first time on the day of the
incident.
[20]
Mbali’s evidence that the Appellant was seen earlier on at the
tavern having an argument
with the deceased confirms that the
Appellant had a tiff with the deceased prior to her being stabbed.
The evidence therefore rebuffs
the attempt by the Appellant to
pretend that he was not aware of the incident and had a secret
relationship with the deceased.
They also indicated that to have
become aware of a person following them after they left the tavern.
He was wearing a hoodie whilst
Mbali was of the opinion that it was a
beanie. The fact remains that the Appellant was wearing something
that covered his head.
They were able to see clearly his face when he
started stabbing the deceased as there were street lights 10 meters
from where the
incident occurred.
[21]
The court a quo took an account of all that evidence together with
all the other
evidence available in this matter and found the state
to have discharged its onus to prove its case beyond reasonable
doubt. The
Appellant’s version, a bare denial who was the only
one to testify on his behalf was rejected as false and not reasonably
possibly true.
[22]
In an appeal, the approach as explained by Jones J in
S v Leve
2011 (1) 87 (ECG) at 90 is that:
“
The
trial court's findings to facts and credibility are presumed correct,
because the trial court and not the court of appeal has
had the
advantage of seeing and hearing the witnesses and is in the best
position to determine where the truth lies. See well known
cases
of
R v Dhlumayo & Another
1948
(2) SA 677
(A) at 705 and the passages which follow
S
v Hadebe
and
Others
SACR
641 SCA at 641at 645 and
S
v Francis
1991
(1)
SACR 198
(A) at 204Cc-f. This principle is no less applicable to
cases that involve the application of the cautionary rule. If the
trial
judge does not misdirect himself on the facts in relation to
the application of the cautionary rule, but, instead, demonstrably
subjects the evidence to careful scrutiny, a court of appeal will not
readily depart from his conclusions.
[23]
Indeed, the Appeal Court’s power to interfere with the
discretion of the trial court
is circumscribed, as confirmed in
S
v Mabena
2012 (2) SACR 287
(GNP) that:
The
power of an appeal court to interfere on fact with the findings of
the court below is limited. Interference in this regard is
only
permissible where the findings of the court below are vitiated by
misdirection or are patently wrong. I find no basis for
interference
in the present case….”
[24]
ln
S v Pistorius
2014 (2) SACR 314
(SCA) at [30] Bosielo J for
the court articulated the approach as follows:
“
It
is a time-honoured principle that once a trial court has made
credibility findings an appeal court should be deferential and
slow
to Interfere therewith unless it is convinced on a conspectus of the
evidence that the trial court was clearly wrong”
See
also
S v Artman
&
Another
1968 (3) SA 339
(A} at
341C.
[25]
It would therefore be in exceptional cases that an appeal court will
be entitled to interfere
with the trial court’s valuation of
the oral testimony of witnesses. Therefore in order to succeed, the
Appellant will have
to convince the Appeal Court that the trial court
was wrong in accepting the evidence of the state's witnesses and
rejecting his
version, in so far as it was in conflict with that of
the state, as being reasonably possibly true, hence a reasonable
doubt will
not suffice to justify interference with such findings;
see
R v Dhlumayo and Another
1948 (2) SA 677
(A) at 705-706;
5
v Francis
1991(1) SACR 198 (A) at 204c-e;
S v Monyane and
Others
2008 (1) SACR 543
(SCA) at para [15].
[26]
Equally it is accepted that incorrect identification is always a
dangerous possibility
and can result in serious cases of injustice.
The courts are therefore implored to approach the evidence of
identification with
caution to limit unintended outcomes that would
result in the failure of justice. In that regard
S v Mthethwa
1972
(3) SA 766
(A) is instructive, the following approach at 768A being
set forth:
“
Because
of the fallibility of human observation, evidence of identification
is approached by the courts with some caution. It is
not enough for
the identifying witness to be honest:
the
reliability of his observation
must
also be tested.
This
depends on various factors, such as
lighting,
visibility,
and
eyesight;
the
proximity of the witness; his opportunity for observation, both as to
time and situation;
the
extent
of his
prior
knowledge
of
the
accused;
the mobility of the scene;
corroboration;
suggestibility; the accused's face, voice, build, gait and dress; the
result of identification parades, if any; and
of course, the evidence
by or on behalf of the accused. The list is not exhaustive. These
factors, or such of them as are applicable
in a particular case, are
not individually decisive, but must be weighed one against the other,
in the light of the totality of
the evidence, and the probabilities.”
(my emphasis)
[27]
The court a quo did exactly that, it weighed all the existing
factors, one against the
other, taking into account the evidence as a
whole as already illustrated above. The Respondent in its heads had
correctly argued
that it is not the duty of this court to re-evaluate
the evidence afresh as if sitting as a trial judge, but to decide if
patently
wrong findings and or misdirection by the magistrate led to
a failure of justice. It was further argued that the Appellant’s
heads of argument failed to explain why the court a quo's findings
and evaluations are to be found to have been patently wrong
or give a
valid reason why this court can or may interfere with the presumption
of the correct factual and credibility findings,
see Prinsloo &
Others
[28]
It is therefore clear that honesty, sincerity and subjective
assurance are not enough;
see
Charzen and Another v S
[2006] 2
All SA 371
(SCA) par [11]. There must in addition, be certainty
beyond reasonable doubt that the identification is reliable.
Confidence in
the first report of a witness shortly after the
observation by the witness carries more weight than the witness’
confidence
in court, often several months later, after the witness’
observations have been confirmed by conversation with other
witnesses;
see Hiemstra’s
Criminal Procedure
, issue 11,
May 1998 on 3-8. The courts are therefore in certain circumstances to
guard against time lapse.
[29]
In
casu,
the court a quo was on the lookout for this
possibility and carefully weighed the total evidence guided by the
precautionary measures
identified in
Mthethwa.
It must also be
recognized that according to the state witnesses, the first incident
at […]Street happened at around 4 o’clock
and Mbali
passed the Appellant and the deceased at the gate, coming back from
the shops. The main incident, that is the stabbing
of the deceased,
took place early in the evening, and there was an Apollo light
illuminating the Street 10 meters away. The Appellant
stabbed the
deceased right in front of the witnesses’ eyes. He had also
confirmed that the two witnesses were known to him
prior the incident
and that he was also well known to Ntombana the deceased’s
relative. There is therefore a miniscular chance
of wrong identity.
[30]
The issue of whether there was a dissimilar reference to what the
Appellant
was wearing over his head, a beanie or a hoodie, in the
conspectus of the evidence, is not a material aspect. The similar
material
fact is that Appellant was wearing something over his head.
It is likewise probable that Mbali did not see the other person who
was standing at the corner with the Appellant as she indicated that
she was walking a few meters behind Noluthando, Ntombana and
the
deceased. It was therefore possible that she did not hear when
Ntombana was pointing out the Appellant to the deceased. Therefore
did not see the exchange of clothes as well. It also could not be
ruled out that they both reported to Ntombana’s relatives
who
did turn out at the incident and found the deceased covered with a
sheet. Given the totality of the evidence weighed, and the
lengthy
assessment conducted by the court a quo, we could not find any
misdirection with the factual evaluation. The court a quo
sufficiently motivated for its findings in the judgment. The
allegations that the court a quo was misdirected therefore has no
merit.
[31]
The Appellant has also failed to convince the Court that the trial
court was
wrong in rejecting his version of being framed as being
reasonably possibly true. The version did not make any sense, hence a
reasonable
doubt will not suffice to justify interference with the
court a quo's finding. The appeal on the conviction must accordingly
fail.
On
sentence.
[32]
Furthermore the Appellant contends in his heads of argument that the
sentence of life imprisonment
is shockingly disproportionate to the
crime that the Appellant was found guilty of. He further alleges that
the court erred in
over-emphasizing the seriousness of the offence,
the interest of society, the deterrent effect of the sentence
attaching too much
weight towards retribution and the public opinion
regarding sentences in general and prevalence.
[33]
In sentencing what is pertinent is the application of the broad “Zinn
of triad”
principle named after the matter of
S v Zinn
1969
(2) SA 537
at 540, which require that, when making sentencing
determinations, three general guides are to be considered: the
gravity of the
offence, the personal circumstances of the offender,
and public interest which are to be considered equally and not with
one heavily
relied upon over the others.
[34]
It is however trite that sentencing is within the trial court's
province as its primary
function and the appeal court can only
interfere where it is satisfied that the trial court failed to
exercise the discretion judicially.
The test is an enquiry if the
sentence is shockingly inappropriate or of such a nature that no
reasonable man ought to have imposed
such a sentence or that the
sentence is totally out of proportion to the gravity or magnitude of
the offence or that the sentence
is grossly excessive, taking into
consideration the circumstances and hence whether the judicial
officer misdirected himself.
S v Blignaut
2008 (1) SACR 78
(SCA) 82b-d;
S v Malgas
2002 (1) SA 1222
(SCA);
S v Johaar
and Another
2010 (1) SACR 23
(SCA) at 27;
5 v Truyns
2012
(1) SACR 79
(SCA.
[35]
Since the Appellant alleges disproportionality of the sentence to the
offence
in contesting the sentence imposed, it becomes important to
deal with the concept of proportionality and or appropriateness in
relation to sentence and the offence. With regard to the offence, the
first leg of the triad, there is a constitutional requirement
that
the punishment imposed, including when it is set by statute, must not
be disproportionate to the offence, which is to be ascertained
by
looking at the applicable aggravating and extenuating circumstances.
In
S vs Dodo
CCT
1/01)
[2001] ZACC 16
;
2001 (3) SA 382
(CC)
2001 (5) BCLR 423
(CC) (5 April 2001) Ackermann J held as
follows on the Constitutional context of the concept:
“
The
concept of proportionality goes to the heart of the inquiry as to
whether punishment is cruel, inhuman or degrading, particularly
where, as here, it is almost exclusively the length of time for which
an offender is sentenced that is in issue. This was recognised
in
S
v Makwonyane
.
Section 12(1)(a) guarantees, amongst others, the right “not to
be deprived of freedom ... without just cause”. The
“
cause”
justifying
penal incarceration and thus the deprivation of the offender’s
freedom, is the
offence
committed. 'Offence',
as
used throughout
in
the
present context, consists of all factors relevant to the nature and
seriousness of the criminal act itself, as well
as
all relevant personal and other circumstances relating to the
offender which could have a bearing on the seriousness of the offence
and the culpability of the
offender.
In
order to justify the deprivation of an offender's freedom it must be
shown that it is reasonably necessary to curb the offence
and punish
the offender. Thus the length of punishment must be proportionate to
the offence. (my emphasis).
See
also
S v Makwanyane
and Another
[1995] ZACC 3
;
1995 (6) BCLR
665
(CC);
1995 (3) SA 391
(CC) paras 94, 197 and 352-6, that confirms
that one such vital determining factor is the severity of the crime.
[36]
The Appellant had a fight with the deceased who was trying to break
up with
him. He was therefore very incensed, that being evident in
the number of times he stabbed the deceased. He had time to think and
took calculated moves in killing the deceased. He knew the deceased
and her friends were eventually going to leave Edumeni. When
they
left and were walking, he was seen in preparation to strike changing
clothes with another person and wearing a hoodie to try
and hide
himself. He then followed the deceased and her friends, singled out
the defenceless deceased and stabbed her seven times
to make sure she
dies. His brutal and calculated action being an aspect that the court
a quo correctly and extensively dealt with.
[37]
The offence
in casu
happened early in the evening in front of
several witnesses. The Appellant was so brazen enough not to even
care that the deceased
is in the company of other people. He showed
total disregard of the dignity or respect for the deceased, her
friends or the community
he lives in. He exhibited a lack of
restrain, complete arrogance and contempt; see S
v. Khandulu and
Another
1991(127/90)
[1991] ZASCA 15
at 33. The witnesses were as
a result shocked and scared such that they all ran away except for
Noluthando, who could not do so
as the deceased was holding her hand.
[38]
In the circumstances the seriousness of the offence, viciousness in
which
it was committed, the situation under which it was committed,
brazenly in the glare of the public and the deceased’s friends
against a defenceless victim, the type of the offender that committed
the offence (who has a history of violent crimes that is
rape and
robbery for which he was incarcerated a number of times), his lack of
remorse and premeditation, in magnification trumps
whatever other
personal considerations there might be for the Appellant; see
S
v
[2008] ZASCA 87
;
[2008] 4 All SA 396
(SCA) ;
2009 (1) SACR 552
(SCA);
2012
(6) SA 353
(SCA)
[39]
The prevalence of cruel murders committed against defenceless and
vulnerable victims validates
the protection of society by imposing
sentences that would curb the commission of such offences. Indeed,
previous short term incarcerations
failed to deter or rehabilitate
the Appellant as noted by the court a quo. The Appellant has been
proven to be a very dangerous
person who callously murdered the
deceased.
[40]
It therefore cannot be said that the sentence was shockingly
inappropriate or disproportionate
to the offence he committed. The
sentence in essence does bear relation to the gravity of the offence.
The dignity of both the
offender and the deceased equally protected,
any sentence less than life imprisonment would be offensive to any
sense of justice
and disturbingly inappropriate, falling fowl to the
warnings that were issued in
S v Malgas
(117/2000)
[2001]
ZASCA 30
;
[2001] 3 All SA 220
(A) (19 March 2001) at [25] that:
“
B
Courts are required to approach the imposition of sentence conscious
that the legislature has ordained life imprisonment (or the
particular prescribed period of imprisonment) as the sentence that
should
ordinarily
and in
the absence of weighty justification be imposed for the listed crimes
in the specified circumstances.
C
Unless there are, and can be seen to be, truly convincing reasons for
a different response, the crimes in question are therefore
required
to elicit a severe, standardised and consistent response from the
courts.
D
The specified sentences are not to be departed from lightly and for
flimsy reasons. Speculative hypotheses favourable to the offender,
undue sympathy, aversion to imprisoning first offenders, personal
doubts as to the efficacy of t policy underlying the legislation,
and
marginal differences in personal circumstances or degrees of
participation between co-offenders are to be excluded.
E
The legislature has however deliberately left it to the courts to
decide whether the circumstances of any particular case call
for a
departure from the prescribed sentence. While the emphasis has
shifted to the objective gravity of the type of crime and
the need
for effective sanctions against it, this does not mean that all other
considerations are to be ignored.
F
All factors (other than those set out in D above) traditionally taken
into account in sentencing (whether or not they diminish
moral guilt)
thus continue to play a role; none is excluded at the outset from
consideration in the sentencing process.
G
The ultimate impact of all the circumstances relevant to sentencing
must be measured against the composite yardstick (“substantial
and compelling”) and must be such as cumulatively justify a
departure from the standardised response that the legislature
has
ordained.”
[41]
The Appellant has failed to prove any misdirection by the court a quo
in imposing the sentence
of life imprisonment for his premediated
murder of the deceased.
[42]
In the circumstances I therefore make the following order:
1.
The Appeal against conviction and sentence is dismissed.
NV
KHUMALO J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
I
concur
FMM
SNYMAN
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
For
the Appellant:
RIAAN DU PLESSIS
Instructed
by:
LEGAL AID SOUTH
AFRICA
email:
riaandup@legal-aid.co.za
Ref:
X8370794200
For
the Respondent: ADV PCB LUYT
Instructed
by:
The Director
of Public Prosecutions
Appeal
section; Gauteng: Pretoria
Email:
pcbluyt@npa.gov.za