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[2021] ZAKZPHC 23
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Sithole v S (AR 362/18) [2021] ZAKZPHC 23 (6 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Appeal
No: AR 362/18
Magistrate’s
Case No: RC 33/15
In
the matter between
MBONGENI
SITHOLE THE
APPELLANT
and
THE
STATE THE
RESPONDENT
Dealt with in term of s
19(
a
) of the
Superior Courts Act 10 of 2013
without a hearing.
This judgment was handed down electronically by circulation to the
parties’ representatives by email.
The date and time for
hand-down is deemed to be 10:00 am on ____________
ORDER
On
appeal from Pietermaritzburg Magistrate Court.
(a) The
appeal against sentence is upheld.
(b) The
sentence of the court a quo is set aside and substituted with the
following sentence:
“
(i) Count
1: the accused is sentenced to twelve (12) months imprisonment.
(ii) Count
2: the accused is sentence to three (3) years imprisonment.
(iii) Count
3: the accused is sentenced to three (3) years imprisonment.
(iv) Count
4: the accused is sentenced to three (3) years imprisonment.
(v) In
terms of the provisions of
section 280
of the
Criminal Procedure Act
51 of 1977
it is ordered that the sentence in count 1 will run
concurrently with the sentence in count 2.
(vi) The
sentence is antedated to 29 October 2016.
JUDGMENT
Mogwera
AJ
[1]
The
appellant was convicted in the Pietermaritzburg Regional Court on a
charge of using a motor vehicle without the owner’s
consent in
contravention of the provisions of section 66(2) of the National
Traffic Act,
[1]
and three (3)
counts of culpable homicide resulting from negligent driving of a
motor vehicle. He was sentenced to twelve (12)
months imprisonment in
respect of the first conviction and five (5) years imprisonment in
respect of each of the other three counts.
The trial court made an
order that the sentence in count one should run concurrently with the
sentences in counts 2, 3 and 4. The
appellant impugns the sentences
imposed.
[2] A
brief background of the evidence which was adduced in the trial which
resulted in the conviction and theses
sentences will suffice. The
appellant was employed as a gardener and a general worker by Mr
Neelan Chetty for a period of approximately
one year. On 22 December
2012 Mr Chetty and his family left for Johannesburg on holiday. The
appellant was paid his salary and
his yearly bonus and he was given
the gate remote so he could gain access to the premises in order for
him to feed the pets. The
house was locked and secured before the
family’s departure. Mr Chetty gave the appellant a lift to his
home in Cedara, as
the appellant was carrying a box with a gift which
Mr Chetty had bought for his birthday which was on the following day.
[3] On
the following day at around 10H00 Mrs Chetty received a phone call
from the police at Hilton Police Station
and she was informed that
her motor vehicle, a Peugeot with registration letters and numbers
NYZ 141 GP (the vehicle), had been
involved in a collision. After
receiving this information Mr Chetty travelled back to
Pietermaritzburg, leaving his family behind
in Johannesburg. Upon his
arrival at Hilton Police Station he was shown photographs and he
identified the wreck depicted therein
as being that of the vehicle
which belonged to his wife. There he was informed that the appellant
had been driving the vehicle
at the time of the collision. He later
learned from his domestic worker that the appellant had taken the
spare keys for the vehicle,
when he had to wash it, at some stage
prior to the family leaving for Johannesburg. He did not give the
keys to him, neither did
he authorise him to use the vehicle.
[4] Mr
Bongani Derrick Zuma (Mr Zuma) was one of the passengers in the
vehicle which was driven by the appellant
at the time when it was
involved in a collision. His evidence shed light on what happened on
that fateful day. On the morning of
the 23 December 2012 he was with
Sandile Shoba and Nhlanhla Zuma, at the latter’s home drinking
beer when the appellant arrived.
He requested them to accompany him
to Howick-West to see one Sizwe. They were later joined by one Khiti
Mohlakwane and they all
proceeded to Howick-West in the vehicle which
was being driven by the appellant. When they did not find Sizwe at
his work place
they proceeded to a nearby bottle store and purchased
alcohol. They consumed some of it there, and the appellant suggested
that
they should proceed to Mathandubisi area.
[5] Upon
their arrival there they proceeded to a tavern where they continued
to consume alcohol which they had
brought with them. When they had
finished that alcohol they bought some more, and they proceeded to
consume it. At some stage the
appellant left them there and went away
in the vehicle. The appellant later returned with a certain gentlemen
and they joined his
friends and continued to drink alcohol. The
appellant again left with that man and returned after a short while.
It was then decided
by the appellant that they should go back to
Howick-West to look for Sizwe. They again did not find him. They
bought some more
beer, and they decided to drive back to Cedara.
[6] It
was while they were travelling along the N3, en route to Cedara that
the collision occurred. Mr Zuma testified
that the appellant was
driving at an excessive speed, following a certain motor vehicle on
the left lane. As the appellant got
very close to that vehicle,
instead of slowing down he decided to change lanes and in the process
of doing so he lost control of
the vehicle. It then hit the silver
barrier on the extreme right side of the road and it capsized. The
damages to the vehicle were
quite extensive, it was a complete wreck.
The other three friends who were passengers in the vehicle lost their
lives as a result
of the collision. Only the appellant and Mr Zuma
survived to tell the story.
[7] The
evidence of the other two witnesses, the police officers who attended
the scene of the collision is undisputed,
and it is therefore not
necessary to refer to it for the purposes of this judgment.
[8] The
appellant’s version of the events of that day is that he was
given permission to use the vehicle
by Mr Chetty, who had given him
the vehicle keys and the remote for the gate to the premises. He was
driving the vehicle when he
met his friends who were carrying alcohol
with them. They boarded the vehicle and he travelled with them to buy
some groceries.
It was when he was driving back to Cedara to drop off
the groceries and deliver his friends when the collision occurred. He
disputed
that he had consumed alcohol on that day. He also denied
that he was driving at an excessive speed. He testified that he was
driving
behind a truck with a trailer carrying horses and there was
another vehicle driving on the fast lane. That vehicle then moved to
his side and drove in front of his vehicle. It was at that stage that
Nhlanhla, who was seated next to him, grabbed the steering
wheel,
which caused the vehicle to swerve and hit the barrier. This version
was rejected by the trial court as being not reasonably
possibly
true, and rightly so.
[9] The
sentence imposed by the trial court is said to be so severe that it
induces a sense of shock. It has also
been submitted that the learned
magistrate ought to have requested pre-sentence reports given the
personal circumstances of the
appellant, in particular the fact that
he is a young first offender and he stated in mitigation of sentence
that he is receiving
a disability grant as he had sustained an injury
to the head and two broken legs at the time of the collision.
[10]
It
is necessary to briefly restate the well-known approach to be adopted
by the court of appeal when dealing with the question of
sentence.
Punishment is pre-eminently the prerogative of the trial court. The
court exercising appellate jurisdiction cannot, in
the absence of
material misdirection by the trial court, simply substitute the
sentence imposed with the one it believes would
have been more
appropriate, and in that way usurp the sentencing discretion of the
trial court. Interference with a sentence would
only be justified
where such discretion has not been properly exercised, the sentence
is vitiated by irregularity or material misdirection,
where the
sentence is shocking and disproportionate,
[2]
or where there is a startling or disturbing disparity between the
trial court's sentence and that which the appellate court would
have
imposed.
[3]
[11]
It
is trite that, in determining an appropriate sentence, the trial
court has to further be guided by the principles which constitute
the
triad — the crime, the offender and the interests of
society.
[4]
These are to be
considered in conjunction with the main purposes being deterrence,
prevention, rehabilitation and retribution.
The role of mercy in
sentencing is widely recognised in our criminal justice system and it
has been said that one way of showing
mercy to the accused was
through ordering that sentences imposed should run concurrently
[5]
,
as was done in this case.
[12] The
appellant’s personal circumstances which were alluded to in
mitigation of sentence were that he
is young and that he is a first
offender. He was also injured during the incident and he was getting
a disability grant at the
time of his incarceration. It was also
indicated that the fact that he was intoxicated at the time and that
the persons whose deaths
he caused were his friends should be viewed
as mitigating factors. It has been submitted before this court that
due to these circumstances
the trial court ought to have requested
for pre-sentence reports, regardless of his attorney’s failure
to do so.
[13] Where
the offender is an adult, as in this case, there is no obligation on
the court to obtain pre-sentence
reports, unless there are some
exceptional circumstances which necessitates that the reports be
obtained. In this case, the appellant
was represented by a competent
attorney throughout his trial, and the issue of a pre-sentence report
was never raised. I do not
agree with the submission that there are
circumstances which “cried out for pre-sentence reports to be
obtained in this case.”
There was sufficient evidence placed
before the trial court to enable it to properly exercise its
sentencing discretion. The trial
court was aware of, and took into
consideration the fact that he was injured in the incident which
resulted in him having some
disability.
[14] The
serious consequences which resulted from this incident cannot be
overstressed. The evidence which was
adduced in this trial reveals
that the appellant was in a position of trust, which he abused when
he used the vehicle of his employer
without his knowledge and
permission. He then drove the said vehicle while he was under the
influence of alcohol on a public road
which is notoriously busy. He
drove at an excessive speed while having passengers in the vehicle,
which resulted in him having
to swerve into the fast lane in order to
avoid colliding with a vehicle in front of his. In engaging in that
manoeuvre he lost
control of the vehicle which was speeding at the
time and hit the barrier which caused the vehicle to capsize, causing
the death
of three people and the vehicle to be written off. His
culpability is seriously aggravated by these factors.
[15]
In
line with giving due regard to the needs of society or public
interest, it is also imperative that
rights
of victims need to be taken into account.
[6]
It is generally accepted that as much as the interests of the
offender have to be taken into account, recognition must also be
given to the rights of victims and they need to ‘be treated
with respect by the criminal justice system’, in accordance
with the principles of restorative justice.
[7]
It is because of this that our law makes provision for victims of
crime to make representations when a decision regarding release
of
the offender on parole has to be made.
[8]
There are many victims who were adversely affected by the
consequences of this crime. Mrs Chetty lost her prized possession,
but
the most significant loss was that of three lives. These were all
young men who still had many years ahead of them. Undoubtedly
their
families must have been devastated by this incident.
[16]
Ordinarily
it is desirable in a case where an offender is convicted of offences
that are inextricably linked in terms of time and
location that the
cumulative effect of the sentences imposed be considered.
[9]
However, the sentencing court must also pay due regard to the
offender`s blameworthiness in determining the effective sentence
to
be imposed so as to ensure that such effective sentence is not
inappropriate. It needs to be borne in mind that
although
no greater moral blameworthiness arises from the fact that a
negligent act caused death, punishment for such act should
still
factor in the sanctity of human life.
[10]
To
do otherwise could lead to an undue ‘
focus
on the well-being of the accused at the expense of the other aims of
sentencing and the interests of the community [which
tends] to
distort the process and to produce, in all likelihood, a warped
sentence’.
[11]
[17]
In
his contention that the sentence imposed in this matter is severe,
counsel for the appellant has referred us to
S
v Nyathi
,
[12]
where the Supreme Court of Appeal (SCA) confirmed the effective
sentence of three years imprisonment imposed by the trial court
where
the appellant had overtaken another vehicle on a blind rise and
thereby caused a collision which resulted in the death of
six people.
Reference was also made to
S
v Humphreys
[13]
were the SCA
sentenced the appellant to eight years imprisonment where he had
decided to overtake a number of stationery vehicles at a railway
crossing, ignoring various warning signs in his attempt to steer the
minibus through the crossing while he was fully aware that
a train
was approaching. His conduct led to the death of ten children and
left four with serious injuries.
[18]
While
reference to prior decided cases on sentence can be a useful and to
assist a court in determining an appropriate sentence,
it should be
borne in mind, in the final analysis, that each case must be decided
on its own merit since no two cases are the same.
In my view, the
facts of this case are rather similar to those in
S
v Maarohanye
[14]
and the degree of moral blameworthiness of the offenders in the two
matters is also comparable. In
Maarohanye
the
two accused who were drag racing on a public road near a school while
under the influence of hard drugs caused a serious collision
in which
four school children were killed and two were left with brain
injuries. The effective sentence of eight years’ imprisonment
was imposed. The appellant in this case was also speeding on a busy
freeway whilst under the influence of intoxicating liquor when
the
collision which claimed the lives of three of his friends occurred.
Furthermore, in
S
v Mapipa,
[15]
the fact that the appellant was under the influence of alcohol when
the vehicle he was driving collided with and killed a motor
cyclist
was an aggravating factor. He was sentenced to four years’
imprisonment which was confirmed on appeal.
[19]
The
fact that the appellant was injured during the incident is
unfortunate. He is, however, the author of his own misfortune. His
decision to drive at an excessive speed was a conscious assumption of
risk on his part.
In
S
v
Samuels
the SCA stated that it is imperative for sentencing courts to
differentiate between offenders who ought to be removed from society
and those who, although deserving of punishment, should not be so
removed.
[16]
[20] Given
all the aggravating factors in this matter as well as the comparable
cases I have referred to, it is
undoubtedly evident that the finding
of the trial court that a sentence of imprisonment is warranted, is
justified. However, it
is the cumulative effect of the sentences
which were imposed by the trial court which make them grossly
inappropriate, especially
given that they
are
inextricably linked in terms of time and location, and they resulted
from a single act or conduct.
This warrants interference by
this court.
[21] I
therefore make the following order:
(a) The
appeal against sentence is upheld.
(b) The
sentence of the court a quo is set aside and substituted with the
following sentence:
“
(i) Count
1: the accused is sentenced to twelve (12) months imprisonment.
(ii) Count
2: the accused is sentence to three (3) years imprisonment.
(iii) Count
3: the accused is sentenced to three (3) years imprisonment.
(iv) Count
4: the accused is sentenced to three (3) years imprisonment.
(v) In
terms of the provisions of
section 280
of the
Criminal Procedure Act
51 of 1977
it is ordered that the sentence in count 1 will run
concurrently with the sentence in count 2.
(vi) The
sentence is antedated to 29 October 2016.”
MOGWERA
AJ
K PILLAY J
Appearances
Counsel
for Appellant : L Barnard
Instructed
by :
Sipho Ngubane Attorneys, Pietermaritzburg
Counsel
for Respondent : I P Cooke
Instructed
by :
Deputy- Director of Public Prosecutions, Pietermaritzburg
[1]
National Road Traffic Act 93 of 1996
.
[2]
S v
Rabie
1975 (4) SA 855
(A) at 857
;
S v Petkar
1998 (3) SA 571
(A) at 574
;
S v Malgas
2001 (1) SACR 469
(SCA),
Director
of Public Prosecutions, KwaZulu-Natal v P
2006(1)
SACR 243 (SCA).
[3]
S v
Birkenfield
2000(1) SACR 325 (SCA) para 8;
S
v Hewitt
2017 (1) SACR 309
(SCA) para 8
[4]
S v
Zinn
1969 (2) SA 537
(A) at 540 G.
[5]
S v
Senatsi
2006 (2) SACR 291
SCA para 6.
[6]
S v
Nxumalo
[2018] ZAKZD 48 (22 October 2018).
[7]
S v
Matyityi
2011 (1) SACR 40
(A) para16
[8]
Section 299A
Criminal Procedure Act 51 of 1977
.
[9]
S
v Schrich
2004
(1) SACR 360
(C) at 370 b-c;
S
v Mokela
2012 (1) SACR 431(SCA)
par 11.
[10]
R v
Barnado
1960 (3) 1960 (3) 552 (A) at 557 D-E;
S
v Nxumalo
1982
(3) SA 856 (SCA).
[11]
S
v Lister
1993
(2) SACR 228
(A) at 232h – i.
[12]
S v
Nyathi
2005 (2) SACR 273 (SCA).
[13]
S v
Humphreys
2013 (2) SACR 1 (SCA).
[14]
S
v Maarohanye
2015
(2) SA 73
(GJ).
[15]
S
v Mapipa
2010
(1) SACR 151 (ECG)
[16]
S
v Samuels
2011
(1) SACR 9
(SCA) para 10.