• Law Reports
  • Mahlangu v S (A24/18) [2019] ZAGPPHC 11 (31 …

Mahlangu v S (A24/18) [2019] ZAGPPHC 11 (31 January 2019)

80 Reportability
Criminal Law
View PDF SAFLII Source
Share WhatsApp LinkedIn X Email

Brief Summary

Criminal Law — Sentencing — Appeal against sentence — Appellant convicted of attempted murder and sentenced to 10 years imprisonment — Appellant contending sentence was shockingly harsh and trial court misdirected itself — Court finding that trial court considered relevant factors including seriousness of the offences and public interest — Appeal dismissed, sentence upheld as appropriate given the violent nature of the crimes and the use of a firearm.

Comprehensive Summary

Summary of Judgment


1. Introduction


The matter concerned an appeal against sentence in the High Court of South Africa, Gauteng Division, Pretoria. The appellant, Samuel Andries Mahlangu, appealed against sentences imposed by the Regional Court, Kwa-Thema, after he had been convicted on two counts of attempted murder.


The respondent was the State. Leave to appeal against sentence was granted by the trial court (the court a quo), and the appeal was directed only at whether the effective term of imprisonment imposed was lawfully and appropriately exercised within the sentencing discretion.


The general subject-matter of the dispute was the appropriateness of the custodial sentence for attempted murder committed with a firearm, and whether the appellate court was entitled to interfere on the basis of misdirection or a shocking disparity between the sentence imposed and a sentence the appellate court considered appropriate.


2. Material Facts


The appellant was convicted of attempted murder arising from a shooting incident that occurred after an encounter at a tavern in Kwa-Thema. The evidence accepted by the court reflected that the appellant used a firearm during the incident and fired multiple shots, resulting in serious injury to one complainant and shots being fired in close proximity to another.


In relation to count 1, the complainant (Thabang) sustained multiple gunshot-related injuries. The medical evidence recorded that the injuries were serious and, according to the treating doctor, could have resulted in death if emergency surgical intervention had not occurred. The sentencing court (and on appeal, the High Court) treated the injuries and the use of a firearm as materially aggravating features.


In relation to count 2, the complainant (Fanie) was shot at in circumstances where shots were fired between his legs. The fact of firearm use and the risk posed to the complainants were treated as aggravating, particularly in the context of violent crime prevalence.


The appellant’s personal circumstances were placed before the court. He was 52 years old, unmarried, and a father of three children. A further material consideration addressed on appeal was the appellant’s contention that the period spent in custody should be considered in mitigation; the appeal judgment accepted that pre-sentence incarceration is, in principle, a relevant consideration even though it appeared not to have been placed before the trial court in the same way.


The appellant had a previous conviction for unlawful possession of a firearm, but the appeal court noted that a period of approximately nine years had elapsed since that conviction and treated it as not directly relevant to the present offences, while still regarding the broader conduct of firing shots as aggravating in the circumstances.


As to matters of dispute, the appellant contested aspects of the shooting and denied responsibility for the complainants’ injuries, but the appeal concerned sentence after conviction and proceeded on the basis of the convictions as they stood. The appeal court additionally recorded that there was no indication of remorse on the record, and treated this as relevant to prospects of rehabilitation.


3. Legal Issues


The central legal question was whether the High Court was entitled to interfere with the sentence imposed by the Regional Court, given that sentencing is primarily within the discretion of the trial court. This required determining whether there had been a material misdirection in the exercise of the sentencing discretion, or whether the sentence was so severe that it produced a “shocking”, “startling”, or “disturbingly inappropriate” disparity when measured against an appropriate sentence.


A further issue concerned the proper weighting of sentencing factors, including the seriousness of violent firearm-related offending, the interests of society, the personal circumstances of the offender, and the extent to which rehabilitation remained realistic in the absence of remorse.


The dispute primarily involved the application of established sentencing principles to the facts and an appellate value judgment on proportionality, rather than a pure question of law or a re-determination of factual guilt.


4. Court’s Reasoning


The court approached the appeal on the basis that an appellate court’s power to interfere with sentence is limited, because sentence falls within the discretion of the trial court. It applied the standard articulated in S v Malgas 2001 (1) SACR 469 (SCA), namely that a court of appeal may not substitute a sentence merely because it would have preferred a different one, and may interfere only where there has been a material misdirection or the disparity is shocking or disturbingly inappropriate.


On the seriousness of the offences, the court emphasised that the appellant had been convicted of serious violent crimes committed with a firearm, and noted that such offences are prevalent and socially destructive. The court treated the use of a firearm, multiple shots fired, and the near-fatal injuries to Thabang as substantial aggravating features. In addressing how sentencing policy should respond to violent crime, the court relied on S v Mhlakaza 1997 (1) SACR 515 (SCA) for the proposition that sentencing must serve the public interest (rather than public opinion), and that in the context of high levels of serious violence it may be appropriate for retribution and deterrence to carry particular weight.


The court nevertheless assessed the appellant’s personal circumstances and the mitigation advanced. It accepted, with reference to S v Mahlanga and Others 2012 (2) SACR 373 (GJS), that pre-trial incarceration can constitute a significant hardship and is a factor that should be weighed along with all others. Although the record suggested this factor was not placed before the trial court, the appeal court indicated it was prepared to take it into account, at least to the extent that it demonstrated the appellant had already experienced the punitive impact of imprisonment.


In evaluating rehabilitation, the court noted that there was no indication of remorse from the appellant during the trial proceedings. It therefore endorsed the trial court’s conclusion that the appellant was not a suitable candidate for rehabilitation on the facts as presented.


Despite these aggravating features and the limited prospects of rehabilitation, the court ultimately exercised an evaluative judgment on proportionality. Having considered the triad of factors (the offender’s personal circumstances, the nature and seriousness of the offences, and the interests of society), the court concluded that the effective sentence of 10 years’ imprisonment was shockingly disproportionate to the offences as sentenced in the circumstances of this case. On that basis, the court held that the trial court had misdirected itself in the sentencing outcome, thereby justifying appellate interference under the Malgas standard.


5. Outcome and Relief


The appeal against sentence was upheld. The High Court set aside the sentence imposed by the Regional Court and substituted it with a lesser custodial sentence.


For count 1, the appellant was sentenced to 7 (seven) years’ imprisonment. For count 2, the appellant was sentenced to 5 (five) years’ imprisonment, with the sentence on count 2 ordered to run concurrently with the sentence on count 1, resulting in an effective sentence of 7 years’ imprisonment.


In terms of section 282 of the Criminal Procedure Act 51 of 1977, the substituted sentence was antedated to 15 November 2017. The judgment as provided did not record a separate or additional costs order.


Cases Cited


S v Malgas 2001 (1) SACR 469 (SCA)


S v Mhlakaza 1997 (1) SACR 515 (SCA)


S v Mahlanga and Others 2012 (2) SACR 373 (GJS)


Legislation Cited


Criminal Procedure Act 51 of 1977, section 282


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The High Court held that, applying the appellate standard for interference with sentence, the effective sentence of 10 years’ imprisonment imposed for two counts of attempted murder was shockingly disproportionate in the circumstances and reflected a misdirection warranting appellate intervention. The court substituted the sentence with an effective term of 7 years’ imprisonment, ordered partial concurrency, and antedated the substituted sentence to 15 November 2017 under section 282 of the Criminal Procedure Act 51 of 1977.


LEGAL PRINCIPLES


An appellate court may interfere with a sentence imposed by a trial court only where the trial court committed a material misdirection in the exercise of its sentencing discretion, or where the disparity between the sentence imposed and the sentence the appellate court considers appropriate is so marked that it is “shocking”, “startling”, or “disturbingly inappropriate”.


Sentencing must serve the public interest rather than simply reflect public opinion. In the context of serious and prevalent violent crime, sentencing may legitimately place greater emphasis on deterrence and retribution, although sentence must remain proportionate and fair in light of all relevant circumstances.


Time spent in custody prior to sentence may constitute a material mitigating consideration because pre-sentence incarceration is a significant hardship; it should be weighed together with all other relevant sentencing factors.


A lack of demonstrated remorse may be treated as diminishing the offender’s prospects of rehabilitation, and may accordingly influence the appropriate sentencing emphasis.

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 11
|

|

Mahlangu v S (A24/18) [2019] ZAGPPHC 11 (31 January 2019)

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A24/18
31/1/2019
In the matter between:
SAMUEL ANDRIES MAHLANGU
Appellant
and
THE
STATE
Respondent
JUDGMENT
MALANGENI, AJ:
[1]
The appellant was convicted in the
Regional Court, Kwa-Them a on two counts of attempted murder and
sentenced to 10 and 5 years
imprisonment respectively. The sentence
in count 2 was ordered to run concurrently with the sentence in count
1. Effectively he
was sentenced to 10 years imprisonment. He appeals
against the sentence with leave having been granted by the court a
quo.
[2]
The appellant challenges the sentence on
the basis that the trial court misdirected itself in sentencing him
to 10 years imprisonment.
It was argued on hi$ behalf that the
sentence imposed by the trial court is shockingly harsh and
inappropriate having regard to
comparable case laws. It was pointed
out that the trial court over-emphasised the seriousness of the
offence; the effect thereof
on the complainants and the interest of
the society. It failed to take into account the prospects of
rehabilitation. It was further
submitted that the trial court also
erred in taking into account the aggravating factors which were not
presented to the court
through evidence by the state.
[3]
Against the appeal, the respondent made
the following submissions:
3.1       That
the trial court took into account the main purposes of punishment
being retribution,
deterrence and rehabilitation.
3·.2     It
considered all the factors with regard to sentence and that the
sentence imposed was appropriate
under the circumstances. The
offences the appellant was convicted of, were serious in that a
firearm was used in the commission
thereof and the offence is rife in
the region. The appellant shot the complainant in count 1, Thabang,
until he ran out of bullets.
He shot Fanie the complainant in count 2
between his legs and did not care where the bullet landed.
The evidence
[4]
Four state witnesses, namely, Thabang
Jonas Mokoni (Thabang), Fanie Mkau (Fanie), Duduzi Lemana (Mduduza),
and Dr Lobo, testified
in support of the state's case and the
appellant also testified but he did not call any witnesses. Thabang
testified that on 2
September 2012 at 23:00 he went with Mduduza to a
tavern in Kwa-Thema. On arrival at the tavern they found Fanie and
the appellantarguing
outside. Because he knew Fanie, he reprimanded
him and invited him inside the tavern for a beer. He had known the
appellant for
four years at the time. He, Fanie and Mduduza went
inside the tavern where they bought beers, sat down and drank them. A
short
while later, the appellant approached them, speaking the
language that is spoken in jail. He told the appellant to move away
and
the appellant said they should go outside. He went out of the
tavern with the appellant. While outside, the appellant said he
should
repeat what he had said while they were inside the tavern. He
then slapped the appellant with an open hand and returned to the
tavern. The appellant said he would cut his tail on that day. He,
Fanie and Mduduza continued drinking inside the tavern. At
approximately
01:00, they left the tavern. Fanie and one Cosas were
walking in front and he walked behind them in the company of Mduduza.
As
they were walking, they heard three shots of a firearm.
Immediately thereafter. the appellant emerged saying this is the dog
I
have been looking for. He started shooting. He shot him on his
collarbone, his left arm above the wrist and also on his right thigh.

He realised that running away would be dangerous and decided to
approach the appellant. As he approached him, the appellant continued

shooting. The appellant was at the time in the company of one Chipa
and an unknown male. Chipa and the unknown male kicked him
and he
fell. The appellant shot him on his ribcage. He also pointed him with
a firearm on his forehead. He tried three times to
shoot but the
firearm did not shoot. He then left. Before the appellant left, he
pulled him by his leg and told him that he was
not going to die.
[5]
Where the incident took place, there was
an Apollo light on the street and he could see all that transpired.
[6]
Under cross-examination he denied that
he was an aggressor and that the appellant fired warning shots. He
denied the appellant's
version. He testified that he did not observe
what happened between Fanie and the appellant as he was walking
behind Fanie.
[7]
Fanie testified that he was outside the
tavern arguing with the appellant when Thabang came and asked him to
join him for a drink
inside the tavern. He went with him inside the
tavern. He corroborated the evidence of Thabang that while they were
inside the
tavern, the appellant approached them and Thabang went out
with the appellant.
Thabang returned into the tavern and he heard
the appellant saying he will cut Thabang's tail. He corroborated
Thabang's evidence
regarding how they left the tavern at
approximately 01:00 am, the way they were walking and what happened
at Kuzoijo Street as
they were walking, how the appellant appeared
with one Chipa. He testified that the appellant cocked the firearm
and asked what
they had been saying. He then fired two shots to the
ground in between his legs. He was walking with Cosas in front of
Thabang
and Mduduza. Cosas asked the appellant why he was firing the
shots. The appellant fired one shot at Cosas's feet. He left them and

said he was looking for another dog. He then heard other shots being
fired. He had seen Thabang from a distance wrestling with
the
appellant and heard two further shots. The appellant was the only
person who was seen having a firearm on the night in question.
Cosas
has since passed on. At the time of the incidents, he had been
knowing the appellant for a long time. He looked upon him
as a
brother.
[8]
Under cross-examination he testified
that when the appellant fired the shots at him, he was a metre away
from him. The firearm was
not aimed at his upper body but on his
feet. He denied the appellant's version that he attempted to kill
him.
[9]
Mduduza corroborated Thabang's evidence
that he was with him when they went to the tavern where they found
Fanie and the appellant
arguing and that Fanie then joined them
inside the tavern and they had some drinks together. While they were
busy having drinks
inside the tavern, the appellant called Thabang
outside. Thabang went outside and later rejoined them. He also
corroborated both
Fanie and Thabang's evidence regarding how they
left the tavern, how they were walking and what happened at Kuzoijo
Street and
how it came about that he had to take Thabang to the
hospital. He was seeing the appellant for the first time that night.
When
the shots were fired, he had gone to hid himself. He could see
what was happening to Thabang as there was an Apollo light that
illuminated the street. He did not count the shots that were fired.
He denied the appellant's evidence that only one shot was fired.
He
was adamant that three shots were fired while he was standing with
Thabang and another shot went off when the appellant and
Thabang were
wrestling over the firearm.
[10]
Dr Lobo also testified. His qualifications were placed on record. He
was working at Pholosong
hospital at the time of the incident. He
completed the J88 medical report form pertaining to Thabang. He saw
him on 3 September
2012 at approximately 02:25. Thabang was brought
to the hospital by the police and he had a history of having been
shot. He was
in pain on admission at the hospital. When he examined
him, he found a soft wound on the back of his neck.

He had an entrance wound with an exit wound on the abdomen which was
painful. On the right thigh, he had a 3 cm laceration like
a circle.
On the left forearm he had another laceration. A catheter was put on
his genitals draining blood. His urine was mixed
with blood.
According to him the injuries that Thabang sustained could have
caused his death if he was not operated immediately.
Under cross­
examination he mentioned that 600 millimetres of blood was extracted
from Thabang's abdomen.
[11]
The appellant also testified. He was
also at the tavern on 2 September 2012. He had a verbal argument with
Thabang and his friends.
He left the tavern at midnight and came
across Thabang and his friends in Kuzoijo Street. He was with Piet
and Chipa. Thabang and
his friends were making noise, saying yes,
this person. He had already told Piet about them. Piet took out a
firearm, cocked it
and gave it to him, saying if they gave him
problems, he should shoot upwards. Thabang and his friends surrounded
them. He fired
a warning shot. Thabang ran and grabbed his hand which
was carrying a firearm. He later changed his version and said Thabang
ran
and grabbed the firearm and not his hand. They fought over the
firearm, a shot went off and they both fell down. On further
questioning
by his legal representative, he changed his version and
said they fought over the firearm, fell down and a short went off.
After
the shot went off, he looked on the ground and saw there was
blood. Chipa kicked Thabang several times. Thabang let go of the
firearm.
He then took the firearm, gave it to Piet and ran away. He
denied shooting at Fanie and Thabang. According to him Dr Lobo lied
when he said one of the shots that were fired at Thabang, was fired
from far. He does not know what caused Thabang's injuries.
[12]
Under cross-examination he testified
that he left Thabang lying on the ground when he ran away. Further
that he also saw Fanie on
the night of the incident and he was busy
talking.
[13]
This court's power to interfere in
sentencing is limited and the sentencing court has a discretion. In S
v Malgas
2001
(1) SACR p 469 (SCA) at paragraph [12], it was held that:
"A court of appeal may not simply
substitute
a
sentence
because it prefers it and will be entitled to interfere only if the
sentencing court materially misdirected itself or the
disparity
between its sentence and the one which this court would have imposed
had it been the trial court
is
'shocking', startling' or
disturbingly inappropriate."
[14]      Appellant
has been convicted of serious offences that are prevalent in our
country. People use
dangerous weapons like firearms and knives to
injure other people. In this case a firearm was used. What is worse
is that the appellant
shot at the complainants for no apparent
reason. When offences are prevalent they become serious. Courts are
encouraged to pass
harsher sentences in respect of serious offences.
[15]      The
appellant fired numerous shots against the complainants thereby
severely injuring Thabang.
According to the doctor who treated him,
had he not been operated in time, he would have died. These are
violent offences directed
on innocent and harmless victims. As a
result of this violent conduct against Thabang, his health has
changed in that he cannot
carry heavy objects and when it is cold he
experiences pain. In S
v Mhlakaza
1997 (1) SACR p 515 (SCA)
Harms JA stated that:
"The object of sentencing is not to
satisfy public opinion but to serve the public interest. A sentencing
policy that caters
predominantly or exclusively for public opinion is
inherently flawed. It remains the court’s duty to impose
fearlessly an
appropriate and fair sentence even if the sentence does
not satisfy the public.
519a-e.
Given the current levels of violence
and serious crimes in the country, it seems proper that, in
sentencing especially such crimes,
the emphasis should be on
retribution and deterrence. Retribution may even be decisive."
[16]      The
appellant is 52 years old, he is not married and he is a father of 3
children. His defence
counsel submitted that the court should
consider the time that appellant spent in custody. In
S v Mahlanga
and Others
2012 (2) SACR p 373 (GJS) it was held that the
relevant period must be considered, with all other factors, on the
basis that being
a pre-trial incarcerated person is a great hardship.
The factor seems not to have been placed before the trial court. I
lean in
favour of considering this factor, at least appellant being
in custody for such a period has felt the taste of prison. Counsel
for the state disagreed with the above submissions. It is important
to mention that the appellant had a previous conviction of unlawful

possession of a firearm. This previous conviction is not relevant to
the current offences and a period of 9 years has lapsed between
it
and the current offences. However, it is aggravating that the
appellant randomly fired shots on the night of the commission
of the
offences.
[17]
It was submitted on the appellant's behalf that the appellant is a
candidate of rehabilitation.
According to the trial record, there is
no indication that the appellant showed any remorse throughout the
trial. The trial court
correctly found that he is not a candidate for
rehabilitation. Having considered the appellant's personal
circumstances, the nature
of the seriousness of the offences
committed and the interests of society, I am of the view that the
sentence imposed is shockingly
disproportionate to the offences
committed. It cannot stand. The trial court has therefore misdirected
itself and this court has
to intervene and interfere with the
sentence.
[18]      In the
result I propose the following order:
18.1
The
appeal against the sentence of the appellant is upheld.
18.2
The
sentence is set aside and replaced with the following sentence:
"In respect of count 1, the accused is
sentenced to
7
(seven)
years' imprisonment. In respect of count 2, the accused is sentenced
to 5 (five) years' imprisonment. The sentence in count
2 shall run
concurrently with sentence in count 1."
18.3
In
terms of section 282 of Act 51 of 1977 the substituted sentence is
antedated to 15 November 2017.
M MALANGENI
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I
agree:
MJ TEFFO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances
For
the appellant:
M Botha
Instructed
by

Legal Aid S.A
For
the respondent:
E P Mnguni
Instructed
by

The Director of Public Prosecutions
Heard
on

30 August 2018
Handed down
on
31 January 2019

Back to Law Reports