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[2021] ZAGPPHC 140
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Mahlangu v S (A196/2020) [2021] ZAGPPHC 140 (18 March 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
MATTER
HEARD VIRTUALLY
CASE NO: A196/2020
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the
matter between:
MOSES
MAHLANGU
APPELANT
And
THE
STATE
RESPONDENT
JUDGMENT
MALI J:
INTRODUCTION
[1]
The
appellant was charged in Benoni Regional Court (“
trial
court”
)
with two counts of murder committed on 19 November 2019. He was
legally represented. On 26 June 2020 the appellant pleaded
guilty to
all charges and the statement in terms of section 112 of the Criminal
Procedure Act 51 of 1977 (“the act”)
was admitted
accordingly.
[2]
The
trial court imposed a sentence of life imprisonment in respect of
count one which the court referred to as premeditated murder.
The
trial court referred to count two as (“
dolus
eventualis”
).
In respect of count two a sentence of imprisonment for a period of 15
years was imposed and a period of 10 years was ordered
to run
concurrently with the sentence of life imprisonment. The appeal
concerns the sentence imposed on count one that of
life imprisonment.
FACTS
[3]
Brief
summary of facts is that on the day of committing the murders the
appellant was with both deceased. The deceased persons were
biological sisters and the deceased in count one was his girlfriend.
A quarrel ensued between the appellant and deceased in count
one.
Ultimately he strangled and stabbed both deceased to death.
ISSUE
[4]
The
issue as presented by the appellant’s Counsel in the heads of
arguments is as follows:
4.1
Whether
the Regional Court found that the murder in count 1 was premeditated
and therefore invoked
sec 51(1)
of the
Criminal Law Amendment Act 105
of 1997
;
4.2
Correctly
imposed the minimum sentence of life imprisonment and not finding
that it was disproportionate to the circumstances of
the case and
that there were no substantial and compelling circumstances.
LAW
[5]
In
considering an appropriate sentence on appeal the court must exercise
caution not to erode the discretionary powers of the trial
court
[1]
.
It is trite that the power of an appeal court to interfere with
sentence is limited.
[6]
Section 51 of the
Minimum Sentencing Act (“
minimum
sentences act”
)
sets out minimum sentences applicable to certain offences.
Section 51(1) provides:
[7]
“
Notwithstanding
any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person
it has convicted of an
offence referred to in Part I of Schedule 2 to imprisonment for
life.”
[8]
Part I of Schedule 2
includes reference to murder. Section 51(2)(b) provides for minimum
sentences for a range of offences referred
to in Part III of Schedule
2. The minimum sentence for a conviction of murder under Part
III of Schedule 2 varies from
years 20 years to
imprisonment for life, depending on whether the convicted person has
committed previous offences.
[9]
Section 51(2) further
provides that “the maximum term of imprisonment that a
regional
court
may
impose in terms of [subsection 2] shall not exceed the minimum term
of imprisonment that it must impose in terms of [subsection
2] by
more than five years”.
[10]
Flowing
from the above; it is mandatory for the trial court to appraise the
accused before pleading of the attendant sentences to
be imposed in
the event the accused is found guilty. The warning takes into account
that the accused is expected to address the
court on whether there
are substantial and compelling circumstances which would make the
court to deviate from the minimum sentences
prescribed above.
AD SENTENCE
[11]
On
behalf of the appellant the court is persuaded to accept that the
charge sheet is defective in that, it does not contain reference
to
section 51(1) or 51 (2) of the Minimum Sentences. Another
complaint about the charge sheet is that it does not contain
the
allegation that the state will rely on premeditated murder as
contemplated in Part 1 of Schedule 2 of the minimum sentences
act.
[12]
The
concept of a planned or premeditated murder is not statutorily
defined. We were not referred to, and nor was I able to find,
any
authoritative pronouncement in our case law concerning this concept.
By and large it would seem that the question of whether
a murder was
planned or premeditated has been dealt with by the court on a
casuistic basis. The Concise Oxford English Dictionary 10
ed, revised, gives the meaning of premeditated as to “think out
or plan beforehand” whilst “to plan” is
given as
meaning “to decide on, arrange in advance, make preparations
for an anticipated event or time”. Clearly the
concept suggests
a deliberate weighing-up of the proposed criminal conduct as opposed
to the commission of the crime on the spur
of the moment or in
unexpected circumstances. There is, however, a broad continuum
between the two poles of a murder committed
in the heat of the moment
and a murder which may have been conceived and planned over months or
even years before its execution.
In my view 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”.’
[2]
[13]
On
behalf of the respondent it was conceded that the charge sheet does
not refer to the above sections. “
I
am of the view that the pronouncement of the act had to be mentioned
in the charge sheet or at the outset of the trial would be
elevating
form over substance…..and it is only after a diligent
examination of the facts that it can be decided whether
an accused
had a fair trial or not.”
[3]
[14]
From
the above the appeal court is enjoined to look at the circumstances
and the facts of the case and examine those accordingly.
We now turn
to examine the circumstances of the charge in the present case.
[15]
At
Annexure E of the charge sheet the following bears:
“
Court
Explains:
(1). Legal Aid/Legal
Representation
…
..
(2). Bail Right:-
Schedule 6 Onus
(3). Part I and II OF
Act 105 of 1997- Prescribed Sentences: -
3.1 years (1
st
Offender); 20 years (2
nd
Offender); 25 years (3
rd
Offender)
3.2 Imprisonment for
Life
[16]
Secondly
Mr Mangena who appeared on behalf of the appellant in the trial court
is recorded at page 1 of the charge sheet as
follows:
“ …
.I
did apprise the accused person of Part 1 and Part 2 of Act 105 of
1997 on 9 January 2020”
[17]
We
are also persuaded to follow the Constitutional Court (
the
CC”
decision in Ndlovu v S below.
“
It
is trite that Magistrates’ Courts are creatures of statute and
have no jurisdiction beyond that granted by the Magistrates’
Courts Act and other relevant statutes.”
[4]
[18]
The
CC held that the Magistrate was aware that the charge was “rape
read with the provisions of [s]section 51(2)” and
specifically
found Mr Ndlovu “guilty as charged”. This wording
simply does not permit an interpretation that
the Magistrate in fact
convicted Mr Ndlovu of rape contemplated in section 51(1).
[19]
We
cannot accept the appellant’s contention because the
misdirection by the trial court in Ndlovu is patently dealt with
by the CC. The issue raised is that Mr Ndlovu was never charged with
51(1) he was charged with 51(2), therefore it was not open
to the
trial court to impose a life sentence envisaged in 51 (1).
[20]
In
the present case, despite the lack of reference to 51 (1) in the
charge sheet, the imperative is that the appellant was warned
accordingly. The trial court pronounced itself clearly as to why the
appellant was found guilty of same. There is nothing more
required
from the trial court.
[21]
The
further complaint is the disproportionality of sentence because the
trial court did not consider the substantial and compelling
circumstances. It is on record that the trial court took into
consideration everything.
[5]
[22]
The
only problem with the trial court’s pronouncement on sentence
in count two is what I call mathematics (“maths”).
There
is no legal basis for the trial court’s maths that a period of
5 years should be served separately from life sentence.
In simple
terms it is not conceivable to separate 5 years of life from one’s
life. The maths is a misdirection. Furthermore,
the law is trite that
any sentence imposed with life sentence should run concurrently.
[23]
In
conclusion we are satisfied that the magistrate did not misdirect
himself in imposing life sentence in respect of count one.
[24]
In
the circumstance the following order shall ensue;
ORDER
1.
The
appeal is dismissed.
2.
The
sentence imposed in count 2 is to run concurrently with the sentence
imposed in count 1.
N. P. MALI
JUDGE OF THE HIGH
COURT
I agree
D.
PICK
ACTING
JUDGE OF THE HIGH COURT
IT
IS SO ORDERED.
APPEARANCES
FOR
THE APPELANT:
Adv Masete (Ms)
For
THE RESPONDENT
Adv Krause ( Mr).
[1]
S
v Pillay
1977 (4) SA 531
(A) at 535 E-F
[2]
S
v Pillay CCD 48/17 KZN
[3]
Sv
Tshoga
2016
ZSCA 205 para 22
[4]
Ndlovu
v S (CCT174/16) [2017] ZACC 19; 2017 (10) BCLR 1286 (CC); 2017 (2)
SACR 305 (CC) (15 June 2017)
-
para 41
[5]
Page
23 line 20-24 and page 24 line 1-9.