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 1109
|
|
Ndlovu v S (291/2017) [2019] ZAGPPHC 1109 (5 February 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case No. 291/2017
(1) REPORTABLE: NO.
(2) OF INTEREST TO
OTHER JUDGES: NO
(3) REVISED.
DATE:
5 February 2019
SIGNATURE:
In the matter between
Muzi Sibongiseni
Ndlovu
Appellant
and
The
State
Respondent
Heard
:
06 November 2018
Delivered
:
05 February 2019
Coram
:
Munzhelele AJ. Maumela J
JUDGMENT
MUNZHELELE AJ
[1]
This is an appeal by Appellant, Muzi Sibongiseni Ndlovu against
sentence. The appellant
was charged and convicted of Arson at Evander
Regional Court. He was sentenced to 5 years imprisonment. The
appellant applied for
leave to appeal the sentence at the court a
quo, which was dismissed.
[2]
A petition was filed with the North Gauteng High Court for leave to
appeal the sentence
before Madam Justice Molopa- Sethosa and Janse
van Niewenhuizen, which was granted on 4 April 2017.
[3]
Facts of this case were narrated as follows: Mr Brian Bonginkosi Dube
is the complainant.
He was in a love relationship with the
appellant’s girlfriend (Pretty Mvubu). Pretty Mvubu was a
girlfriend of the complainant,
but still staying with Muzi
(appellant) as she was in a love relationship with him. Brian
(Complainant) was staying alone at Extension
2[…], E[…],
Mpumalanga Province in a one roomed house. On 27 October 2014 he went
out from his residence to his cousin
who lives 150 meters away from
his homestead at around 16:00. While he was away, Miss Pretty Mvubu
came and slept in his house.
At about 22:30, complainant received a
call from Miss Pretty Mvubu who told him that his house was on fire.
He ran to the house
and found the neighbours who were trying to
extinguish the fire. The fire could not be extinguished and the whole
house burnt down.
[4]
All the properties including the television, two beds, wardrobe,
blankets, and clothes
which were inside the house, burnt down. The
estimated value of the damage is R50 000.00 (Fifty thousand
rand).
[5]
During the night of the fire Miss Pretty Mvubu was at the
complainant’s place
sleeping on a couch. When she woke up she
found the door open. The appellant was pouring petrol inside the
whole house including
the place where she was sleeping including her
body. While at the neighbour’s house the appellant set the
house on fire and
went way.
[6]
The appellant denied setting the house on fire. He pleaded alibi, but
the court a
quo found that the state was able to prove a case against
appellant beyond reasonable doubt and convicted him for Arson.
[7]
The court a quo considered the triad and the interest of the victim
in order to find
an appropriate sentence in the circumstance of this
case. The trial court was also guided by the Supreme Court of Appeal
and High
Court case law on similar cases regarding sentence, albeit
in S v Romer 2011(2) SACR 153 (SCA) at para 22,23-31 it was
emphasized
that the trial court is not bound by sentences imposed by
other courts including higher courts. The court a quo sentenced the
appellant
to five years imprisonment. In this case, the appellant is
appealing against the said sentence.
[8]
It is trite that sentencing is inherently within the discretion of
the trial court.
The appeal court has limited powers to interfere
with such discretion of the trial court, unless it has become clear
that no reasonable
person ought to have imposed such a sentence, or
that the sentence is totally out of proportion to the gravity of the
offence,
or that it induces a sense of shock, or that the trial court
has not exercised its discretion properly, or that it was in the
interest
of justice to alter it (see
S v Fhetani
2007 (2) SACR
590
(SCA) at para5;
Director of Public Prosecutions, Kwazulu Natal
v P
2006 (1) SACR 243
(SCA) at 254c-f:
S v Malgas
2001 (1)
SACR 469
(SCA) at para12;
S v Anderson
1964 (3) SA 494
(A) at
495D-E).
[9]
On behalf of the appellant, counsel Kgokane submitted that the trial
court erred in
sentencing the appellant to an effective five years
imprisonment. He further argued that the trial court over-emphasized
the seriousness
of the offence interest of the society and
underemphasizes the personal circumstances of the appellant. It was
further submitted
by the counsel that the sentence is harsh and
induces a sense of shock.
[10]
The counsel further submitted that the appellant is a first offender
who has children and not
a hardened criminal. He further argued that
the appellant should have been given a sentence with the aim of
rehabilitating him.
Counsel further submitted that the trial court
erred in approaching the sentence for the appellant without blending
it with a measure
of mercy.
[11]
On behalf of the respondent, counsel Wilsenach submitted that the
trial court has considered all the
relevant factors pertaining to
sentence and has exercised its discretion judiciously. Counsel
further submitted that the sentence
imposed is appropriate.
[12]
The trial court is expected to have regard to the triad and to blend
same with a measure of mercy
according to the circumstances of the
case. In S v Kumalo
1973 (3) SA 697
(A) at 698A where Holmes JA
stated that:\
‘
Punishment
must fit the criminal as well as the crime, be fair to the society,
and be blended with a measure of mercy according
to the
circumstances.’
[13]
It was apparent from the record of the proceedings that the trial
court was alive to the appellant’s
personal circumstances
including the fact that he was 29 years during the commission of the
offence and was of good health. His
age was justifiably not regarded
as a mitigating factor. I find this to be in accordance with what
Ponnan JA said in the case of
S v Matyityi 2011(1) SACR 40 (SCA) at
48 para 14E-G where he said:
‘
It
is trite that a teenager is prima facie to be regarded as immature
and that the youthfulness of an offender will invariably be
a
mitigating factor….Thus, whilst someone under the age of 18
years is to be regarded as naturally immature the same does
not hold
true for an adult.
In my view a person
of 20 years or more must show by acceptable evidence that he was
immature to such an extent that his immaturity
can operate as a
mitigating factor.
(
my
emphasis
). At the age of 27 the
respondent could hardly be described as a callow youth’.
[14]
The trial court also considered that appellant was unemployed with
three children who he does
not stay with. The trial court did not
find this to be a mitigating factor more so because the children were
staying with their
mothers and receiving children grant from the
government. The fact that the appellant during mitigation, mentioned
that he has
three children cannot automatically be regarded as a
mitigating factor especially in the present case where he does not
stay or
maintain them as he is unemployed. While one has sympathy for
children and the need for the children to be in the continued
presence
of their father, in circumstances such as this, ‘their
emotional needs’ cannot triumph the duty on the State to
properly
punish criminal misconduct where an appropriate sentence is
one of imprisonment (see
S v EB
2010 (2) SACR 524
(SCA) para
14).
[15]
The fact that appellant was a first offender was regarded as a
mitigating factor according to
the trial court. However, on the
totality of evidence this fact alone could not sustain the appellant
when the trial court balances
same with other circumstances which
should be taken into consideration when sentencing him. I cannot
fault the trial court in having
considered the triad when sentencing
the appellant as it is the correct way to arrive at an appropriate
sentence. The trial court
cannot only consider the personal
circumstances of the appellant in order to arrive at an appropriate
sentence. In
Shawn Packerey Sammy v State
Case no: 048/2003
where judgement was delivered on 28 November 2003 at para 12 Mthiyane
JA deliberating on the submission that
offender was a first offender:
‘…
A
first offender has no right to be kept out of jail. It all depends on
the circumstances of each case. It has been held that any
serious
offence can lead to imprisonment and frequently imprisonment is the
only appropriate sentence which ought to be imposed
(See also
S
v Holder
1979(2) SA 70 (AD) at
77H-78A).
[16]
The trial court also took into consideration the interest of the
complainant. His house burned
down and he could not recover any item.
The fact that it was a one roomed house does not minimize the
importance and value of a
roof over one’s head. A right to
housing is enshrined in the Constitution (see Section 26 of the
Constitution of South Africa;
S v Isaacs
2002 (1) SACR 176
(C) at
178B/C). Complainant was rendered homeless because of this Arson.
This interest needed to be balanced with the personal
circumstances
of the appellant.
[17]
I have found that the trial court had adequately dealt with all the
requirements laid down in
the case of
S v Zinn
1969 (2) SA 537
(A) and
S v Isaacs
2002 (1) SACR 176
(C) at 178B/C. He did not
accentuate one element over the other as per the argument by Advocate
Kgokane on behalf of the appellant.
This appeal should not succeed.
[18]
In the result the following order is made:
1. The appeal is
dismissed.
2. The sentence imposed
by the regional magistrate is confirmed.
M.M. Munzhelele
Acting Judge of the High
Court
PRETORIA
I AGREE
T. Maumela
Judge of the High Court
PRETORIA
Counsel
for appellant:
Advocate
Kgokane
Instructed
by:
Legal
Justice Centre Pretoria
Counsel
for Respondent:
Advocate
Wilsenach
Instructed
by:
Director
of the Public Prosecution