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[2019] ZALMPPHC 11
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Mulaudzi v S (AA05/2018) [2019] ZALMPPHC 11 (28 February 2019)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO THE JUDGES: YES/
NO
(3)
REVISED.
CASE NO: AA 05 / 2018
In
the matter between:
SILAS
SILENCE MULAUDZI
APPELLANT
and
THE STATE
RESPONDENT
JUDGMENT
SIKHWARI,
AJ
[1]
The appellant was arraigned in the Circuit Court of the Limpopo
Division of the High Court sitting at Lephalale
before Nair AJ.
Appellant was convicted on count 1, being the murder of Nkele Meriam
Sedie (“the deceased”) read with
the provisions of
section 51(1) of
Criminal Law Amendment Act 105 of 1997
, count 2 of
malicious injury to property and count 3 of assault. He was sentenced
to life imprisonment in count 1. Counts 2 and
3 were taken as one for
purposes of sentence and appellant was sentenced to 12 months
imprisonment. Appellant is approaching this
court, with leave of the
court
a quo
on appeal against the sentence only.
[2]
The evidence of the State regarding the murder of the deceased in
count 1 is that on 23 April 2017 the body
of the deceased was
discovered by Matlakala Mita Sedie (“Matlakala”), the
deceased’s sister, at the premises
of the appellant. Matlakala
became suspicious of the deceased’s whereabouts when the
deceased was not at home in the morning
of 23 April 2017. She
searched for the deceased all over but could not find her. Matlakala
went to the house of the appellant because
she knew that the
appellant had a love relationship with the deceased. On arrival,
Matlakala was discovered the deceased’s
body lying on the floor
in a pool of blood.
[3]
The version of the appellant on the murder charge is that the
deceased found him with another woman, his girlfriend,
whose name is
Eva. The deceased started to fight the other woman and went to an
extent of stabbing the appellant behind his head
with an unknown
object. The two women started fighting and he ran away and left the
deceased fighting with Eva. He denied having
killed or threatened to
kill the deceased at some stage. The appellant’s version was
correctly rejected by the court
a quo
and he was accordingly
found guilty of murder.
[4]
The conviction on counts 2 and 3 arise from an incident on 22 April
2017 wherein the appellant smashed and
damaged the motor vehicle
windscreen of one Mr Philemon Sithole whom he also assaulted I the
process. This as when the appellant
found he deceased in Mr Sithole’s
motor vehicle and apparently suspected the two of being in love. The
next day, on 23 April
2017 Mr Sithole, a police officer, learnt that
the appellant was arrested and charged for the murder of the
deceased.
[5]
There is no evidence relating to the manner and circumstances under
which the deceased went to the house of
the appellant. Evidence of
Matlakala who testified for the State is that the relationship
between the deceased and the appellant
was already terminated,
however the appellant would usually fight the deceased if he saw her
at the taverns. There is no evidence
as to why on 22 April 2017 the
deceased went to the house of the appellant. More importantly, there
is no evidence as to what had
triggered the fight or what were the
circumstances which led to the murder when they were in the house of
the appellant.
[6] It
is the duty of the State to prove the guilt of the accused person
beyond reasonable doubt. In the circumstances,
there are no basis to
make a finding that the murder of the deceased was premediated or
pre-planned. The presented circumstantial
evidence is not enough to
sustain the conclusion in favour of the State regarding the
pre-planning of the murder of the deceased
herein.
[7]
According
to the cardinal rules stated in
R
v Blom
1939 AD 202
,
the enquiry should be whether the
court
a quo
,
on the evidence before it, could reasonably have concluded that the
murder was indeed premeditated. This enquiry involves the
determination of the two cardinal rules of logic; being:
Firstly
,
the inference must be consistent with all proven facts. If it is not,
that inference cannot be drawn.
Secondly
,
the proved facts should be such that they exclude every reasonable
inference except that it was the appellant who was the perpetrator.
[8] In
the present case, the proven facts do not indicate premeditation of
the murder of the deceased. Consequently,
this court is entitled to
interfere with the sentence of life imprisonment in respect of count
1 of murder. The appellant must
be sentenced in terms of
Section
51(2)
read with 51(3) of Act 105 of 1997
[9]
The provisions of
Section 51(3)
(a)
of the
Criminal Law
Amendment Act 105 of 1997
are that:
“
(3) (a) If any
court referred to in subsection (1) or (2) is satisfied
that substantial and
compelling circumstances exists which justify the imposition of a
lesser sentence than the sentence prescribed
in those subsections, it
shall enter those circumstances on the record of the proceedings and
may thereupon impose such lesser
sentence.”
[10] A proper
reading of this section does not preclude the sentencing court from
imposing a heavier sentence than the prescribed
minimum so long as
the sentencing court can record its basis for doing so in going above
the prescribed minimum sentence.
[11] In the case
of
Mathebula & Another v State
2012 (1) SACR 374
(SCA)
,
at para [11], Bosielo JA stated that:
“
the proper
approach to be adopted by a sentencing court which contemplates to
impose sentences higher than the prescribed minimum
sentence seems to
me to be the one adumbrated by Wallis J in
S
v Mbatha
2009
(2) SACR 623
(KZP) para 20 where he stated:
‘
On that approach
there is as much a necessity for the court in its judgment on
sentence to identify on the record the aggravating
circumstances that
take the case out of the ordinary, as there is for it in the converse
situation to identify those substantial
and compelling circumstances
that warrant the imposition of a lesser sentence than the prescribed
minimum and explain why they
render a particular case one where a
departure from the prescribed sentence is justified. The factors that
render the accused more
morally blameworthy must be clearly
articulated’.”
[12] This approach
was followed by Makgoka JA in the case of
Kekana v State
(37/2018)
[2018] ZASCA 148
(31 October 2018)
at para [11]
where he stated that:
“…
the
appellant’s main complaint was that the trial court had
misdirected itself by, without giving reasons therefor, imposing
a
sentence of 20 years’ imprisonment on each murder count,
instead of the prescribed 15 years. This, he argued, was at odds
with
what this court held in
S
v Mathebula & Another
[
2011]
ZASCA 165
;
2012 (1) SACR 374
(SCA) para 11
.
There, this court held that a sentencing court should identify the
circumstances that impel it to impose a sentence higher than
the
prescribed minimum sentence, and explain why a departure from the
prescribed sentence is justified.”
[13] The manner in
which the deceased was killed in cold blood by administering multiple
incised penetrating wounds to the
neck on no less than 8 times around
the neck was very cruel and gruesome. The deceased was harmless and
defenceless. The appellant
attacked her without any form of
provocation. In his own evidence, he was no longer in love with her.
He was in love with one Eva
but he still persuaded her to come to his
house. Appellant acted in violation of protection order issued by the
court to protect
the deceased from violent attacks by the appellant.
Appellant has tendered no apology to deceased’s family. There
is no sign
of remorse on the part of the appellant. He abused the
trust which the deceased had on him when she agreed to go to his
house.
These factors, considered cumulatively, justify the imposition
of a sentence which is higher than the prescribed minimum sentence
of
15 years for murder under
Section 51(2)
of the
Criminal Law Amendment
Act 105 of 1997
.
[14] The further
aspect of the appeal on sentence which is worth considering is the
concurrent operation of the sentences
imposed by the court
a quo
.
There is no hard and fast rule as to whether sentences should be
concurrent or consecutive. The sentencing court should be more
concerned about the cumulative effect of the sentence. The practical
objective should be to impose an overall sentence which is
proportionate to the offence, offender and community. The sentencing
court should have regard to the nature of the offences where
there is
a close connection in time, place and intention with regard to the
offences involved; and then the counts be taken as
one for purposes
of sentencing or the sentences be ordered to run concurrently.
[15] In
Moswathupa
v State
2012 (1) SACR 259
(SCA)
at para 8, Theron JA (as she
then was) stated that:
“…
It is
trite that punishment should fit the criminal as well as the crime,
be fair to the accused and to society, and be blended
with a measure
of mercy. In
S
v V
1972 (3) SA 611
(A) at 615D-E
,
Holmes JA emphasised that ‘the element of mercy, a hallmark of
civilized and enlightened administration, should not be overlooked’.
Holmes JA added that mercy was an element of justice and referred
with approval to
S
v Harrison
1970 (3) SA 684
(A)
at 686A, where the learned judge has said that, ‘[j]ustice must
be done; but mercy, not a sledge-hammer, is its concomitant’.
Where multiple offences need to be punished, the court has to seek an
appropriate sentence for all offences taken together. When
dealing
with multiple offences a court must not lose sight of the fact that
the aggregate penalty must not be unduly severe.”
[16] There is a
close connection with regard to the crimes all the three counts on
which the appellant was convicted. The
circumstances which led to the
murder of the deceased seem to have flown from the rage which the
appellant had when he saw the
deceased in Sithole’s motor
vehicle. He attacked Sithole, damaged the windscreen of Sithole’s
motor vehicle, and later
the deceased was found murdered in apparent
crime of passion. The appellant is a man who could not contain his
jealousy or could
not come to terms with his break-up with the
deceased. Consequently, it is our view that the sentence(s) in counts
2 and 3 should
run concurrently with the sentence in count 1 of
murder.
[17] The court of
appeal’s powers to interfere with the sentence imposed by the
trial court are limited unless the sentence
is disturbingly
inappropriate or vitiated by irregularities or misdirection. In the
case of
S v Rabie
1975 (4) SA 855(A)
at page 857D-F
,
Holmes JA stated that:
“
1.
In every appeal against sentence, whether imposed by a magistrate or
judge, the court hearing the appeal:-
(a)
should be
guided by the principle that punishment is “pre-eminently a
matter for the discretion of the trial court”;
and
(b)
should be
careful not to erode such discretion: hence the further principle
that sentence should only be altered if the discretion
has not been
“judicially or properly exercised”.
“
2.
The test under (b) is whether the sentence is vitiated by
irregularity or misdirection or disturbingly
inappropriate.”
[18] Sentencing
falls within the discretion of the trial court. In sentencing the
appellant herein for count 1 of murder,
the count
a quo
correctly found that there were no substantial and compelling
circumstances to persuade it to deviate from the prescribed minimum
sentences in terms of the relevant provisions of
Section 51(3)
of Act
105 of 1997, as amended.
[19] In the case
of
S v Malgas
2001 (1) SACR 469
(SCA
)
at
481J–482A
, the Supreme Court of Appeal stated that:
“
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 are to the efficacy of the policy underlying the legislation,
and marginal differences in personal circumstances or degrees of
participation between co-offenders are to be excluded”
.
In the
Malgas
matter the SCA set aside the sentence of life imprisonment and
replaced it with 25 years imprisonment
[20]
In the premises, I propose to make the following order:
1.
That the
appeal against sentence in count 1 of murder is upheld and the
sentence of life imprisonment is set aside and replaced
with the
following:
“
The accused is
sentenced to 20 years imprisonment.”
2.
That the
appeal against sentence(s) in count 2 of malicious injury to property
and count 3 of assault is dismissed.
3.
That the
sentences in counts 2 and 3 shall run concurrently with the sentence
in count 1.
4.
That the
sentences so imposed are antedated to 2 August 2018, being the date
on which the appellant was sentenced by the court
a
quo
.
MS
SIKHWARI
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
I
agree.
MG
PHATUDI
ACTING DEPUTY JUDGE
PRESIDENT OF THE HIGH COURT OF SOUTH AFRICA, LIMPOPO DIVISION,
POLOKWANE
I agree, and it is so
ordered.
EM
MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
APPELLANT’S
COUNSEL: Mr DJ
Nonyane
INSTRUCTED
BY:
Justice
Centre, Polokwane
RESPONDENT’S
COUNSEL: Adv JJ Kotze
INSTRUCTED
BY:
National Prosecuting Authority,
Polokwane
DATE
OF HEARING:
15 February
2019
DATE
OF JUDGMENT:
28 February 2019