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[2021] ZAKZPHC 76
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Mkhize v S (AR227/2020) [2021] ZAKZPHC 76 (12 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR227/2020
In
the matter between:
MBONGISENI
MKHIZE APPELLANT
and
THE
STATE RESPONDENT
JUDGMENT
Delivered
on 12 February 2021
Mossop
AJ (Seegobin J concurring):
[1] The
appellant and a co-accused were charged with the offence of murder in
that it was alleged that they unlawfully
and intentionally killed one
Malibongwe Mkhize, a male person. In seeking their conviction, the
State gave notice that the provisions
of section 51(1) of the
Criminal Procedure Act 51 of 1977 (henceforth ‘
the
Act
’) was of application in that
the accused allegedly acted together in common purpose.
[2] After
a trial in the Greytown Regional Court, both the appellant and his
co-accused were convicted of the offence
of murder. The appellant was
sentenced to life imprisonment and his co-accused was sentenced to 5
years imprisonment in terms of
the provisions of section 276(1)(i) of
the Act.
[2] This
appeal is before us by virtue of the appellant’s statutory
right to an appeal in terms of the provisions
of section 309 of the
Act. There is no appeal from the appellant’s co-accused.
[3] The
events that transpired in this matter occurred in the general area of
Msinga, within the province of KwaZulu-Natal.
This is notoriously an
area that has in the past been plagued by so-called ‘
faction
fights
’. Reference to such past
faction fights in the general area was repeatedly made during the
course of the evidence that was
led in the court
a
quo
although there was nothing arising
out of that evidence to indicate that the events with which we are
concerned were anything to
do with a faction fight.
[4] On
18 March 2018, two groups of young men came together at a shop known
as Malembe shop, in the Mathengwenya
area at Umhlangani. A group of
young males were inside the shop when they were approached by a young
man from the Mathengwenya
area who indicated that other young men
from his area required the group of young men in the shop to come out
and to fight them.
The group exited the shop to find out what was
going on. It transpired that the young men from the Mathengwenya area
wanted one
of their number, named Lungisani, to fight with a young
man, known as Lungani, who formed part of the group who were in the
shop.
[5] The
two opposing groups of young men then stood and observed the
commencement of the fight between Lungisani
and Lungani. As the fight
progressed, it became apparent that Lungisani was going to be
defeated by Lungani. Lungisani began crying
out for help as his
physical defeat loomed. Initially, he received no assistance.
Suddenly, however, the appellant’s co-accused
grabbed the
deceased, who was not a participant in the ongoing fight but merely a
spectator, from behind and pinned the deceased’s
arms to his
side. The appellant then stabbed the deceased in the chest whilst the
deceased was powerless to defend himself. A post-mortem
later
revealed that the stab wound penetrated the left ventricle of the
deceased’s heart and caused his demise.
[6] All
the witnesses to testify for the State at the trial identified the
appellant and his co-accused as the
two individuals who were
responsible for the death of the deceased. Specifically, the
appellant was identified as the person who
performed the stabbing and
his co-accused was identified as the person who held the deceased to
allow the stabbing to occur. The
Learned Regional Magistrate
considered the evidence of the State witnesses and, in my view,
correctly found them to be reliable
and consistent in their evidence.
Moreover, they were certain in their identification of the appellant
as the deceased’s
assailant.
[7] The
appellant and his co-accused were not nearly as impressive in their
testimony as the State witnesses were.
Indeed, the appellant
presented two versions to the court regarding the events in question.
In the first version, he denied doing
the stabbing. It was thus put
to the first state witness, Mzwandile Mkhize, by the appellant’s
legal representative that:
‘
Other
than the accused 1 will deny the fact that at any stage he did stab
the deceased.’
[8] Again,
when the third State witness, Sipho Sithole, testified, the following
was put to him by the appellant’s
legal representative:
‘
Accused
1 will deny that he, at any stage, stabbed the deceased?’
[9] This
first version differed markedly from the second version advanced by
the appellant and which was offered
up when he testified in chief.
When he did so, he admitted that he had stabbed the deceased. In
response to clarifying questions
put by the court, the following was
stated:
‘
COURT:
Are you now saying that you did stab the deceased? --- Yes, he got
stabbed.
Did you stab the
deceased? --- Yes.
[10] The
effect of this admission was to eradicate any doubt that may have
existed as to who the person was that
plunged the knife into the
chest of the deceased. As a consequence, the evidence of the
witnesses who were adamant that the appellant
was the stabber, but
who were told that the appellant would deny that he was that person,
was rendered reliable.
[11] It
follows that there can be no doubt that the appellant was the person
who caused the death of the deceased.
What was his explanation for
doing this? He made reference to an alleged argument between the
deceased, one Thabiso and himself.
This argument apparently devolved
into a physical confrontation and, ultimately, the stabbing of the
deceased. But the fact of
this separate conflict was never put to any
of the witnesses who testified for the State, it being revealed only
in the appellant’s
evidence-in-chief. According to the
appellant, the deceased was allegedly armed with a knife that he let
slip and it fell to the
ground and which was retrieved by the
appellant. He then used that knife to stab the deceased. His sole
explanation for stabbing
the deceased was that ‘
I
was emotional
’. There was no
suggestion that the appellant acted in self defence.
[12] The
Learned Regional Magistrate in the court
a
quo
was, in my opinion, correct in
convicting the appellant of murder.
[13] The
question of sentence must be considered. The offence was without
doubt one of the utmost gravity. A young
human life was lost through
the conduct of the appellant and his co-accused. No sentence that can
be imposed upon the appellant
can reverse the consequences of his and
his co-accused’s actions.
[14] There
are, however, a number of factors that redound to the benefit of the
appellant:
(a)
he
was a young man, aged 19, who until the time of the murder was still
a scholar;
(b)
he
had no previous convictions;
(c)
contrary
to what the State submitted in its heads of argument, the appellant
did display some remorse for his conduct. He sought
forgiveness for
his actions in his evidence-in-chief. I temper my comments in this
regard by acknowledging that this happened only
after the State had
led its evidence that unquestionably identified the appellant’s
involvement in the murder. The appellant
may well have seen the
writing on the wall and may have been trying to create a better
impression of himself;
(d)
the
events that unfolded do not seem to have been planned or
orchestrated, other than the fight between Lungiseni and Lungani.
Emotions clearly ran high as the appellant’s combatant appeared
to face defeat. Indeed, the appellant’s excessively
emotional
state was his only explanation for why he did what he did.
[15] It
is so that a court of appeal will only interfere with the sentence of
a lower court if the sentence imposed
is shockingly inappropriate or
the court has misdirected itself.
It
must be borne in mind, even when it is the prescribed punishment,
that a sentence of life imprisonment is the most extreme sentencing
option available under our law. As the Supreme Court of Appeal has
stated:
‘
Custodial
sentences are not merely numbers. And familiarity with the sentence
of life imprisonment must never blunt one to the fact
that its
consequences are profound
’
[1]
[16] In
my view, it is important when considering the appropriateness of the
sentence imposed upon the appellant
not to start with the mindset
that the sentence that he received is
a
priori
a just sentence. All the circumstances of the case must be
identified, considered and evaluated and then it should be considered
whether the sentence is disproportionate to the crime, the offence
and the legitimate needs of the community. That will require
the
court to consider what a just sentence would be in all the
circumstances of the case. If a just sentence falls materially below
the prescribed sentence there will be substantial and compelling
circumstances to depart from the prescribed sentence.
[2]
[17] After
considering all the circumstances of the matter, in my view the
Learned Regional Magistrate failed to
attach sufficient weight to the
age of the appellant and the fact that the murder was not evilly
plotted in advance but happened
spontaneously in response to
unplanned and developing circumstances. In my view therefore the
sentence imposed is not a just sentence
in the circumstances of the
matter. This court is therefore at liberty to intervene.
[18] It
is beyond question that
the appellant must
be harshly punished for his conduct, but in my view, he need not be
broken to the extent that a second life is
wasted arising out of
these unfortunate circumstances.
Fyodor
Dostoyevsky once said that to live without hope is to cease to live.
The appellant should be left
with some vestige of hope for his future.
In my view, this may best be achieved by varying the sentence of the
appellant.
In my view, a
sentence of 15 years imprisonment would meet the needs of the matter.
Order
[19] I
accordingly propose that:
(a)
the
appeal on conviction be refused; and
(b)
the
appeal against sentence be allowed and that the sentence be altered
to one of imprisonment for 15 years.
MOSSOP
AJ
I
agree:
SEEGOBIN
J
APPEARANCES
Date
of Hearing: 12
February 2021
Date of
Judgment: 12
February 2021
Counsel for Plaintiff:
Instructed by:
Counsel for Defendant:
Instructed by:
[1]
S
v Vilakazi
2009 (1) SACR 552
(SCA) at
para
21.
[2]
S
v GK
2013 (2) SACR 505
(WCC) at para 14.