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[2019] ZAGPPHC 72
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Mokoena v S (A425/2017) [2019] ZAGPPHC 72 (6 March 2019)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:A425/2017
6/3/2019
AARON
JEREMIAH MOKOENA
APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
MOLOPA-SETHOSA
J
MOLOPA-SETHOSA
(RANCHOD and KOLLAPEN JJ concurring)
Case
Summary: An appeal against a sentence of 18 years' imprisonment in
respect of murder read with the provisions of section 51
(2) of the
Criminal Law Amendment Act, Act 105 of 1997 imposed by the High Court
of South Africa, GAUTENG DIVISION, PRETORIA (Functioning
as
MPUMALANGA DIVISION) held at ERMELO (Makume J)
Order
The
appeal against sentence is dismissed.
[1]
The
appellant in this matter, Aaron Jeremiah Mokoena, was arraigned at
the High Court of South Africa, GAUTENG DIVISION, PRETORIA
(Functioning as MPUMALANGA DIVISION), held at Ermelo, on the
following charges:
[1.1]
Count 1: Assault;
[1.2]
Count 2: Contravening the provisions of a Protection Order;
[1.3]
Count 3: Assault with intent to do grievous bodily harm
[1.4]
Count 4: Contravening the provisions of a Protection Order;
[1.5]
Count 5: Murder read with the provisions of
section 51(1) of
the Criminal Law Amendment Act, Act 105 of 1997
("the
Minimum Sentences Act");
[1.6]
Count 6: Contravening the provisions of a Protection Order;
[2]
On
21 October 2014 count 1 to 4 were withdrawn by the State. The
appellant pleaded guilty [on 21 October 2014] on count 5 and 6,
and
he was convicted on the information contained in exhibit
"E",
the
appellant's statement in
terms
of section 112(2) of the Criminal Procedure Act, Act 51 of 1977,
as
amended ("the CPA").
[3]
As
appears from exhibit "E" aforesaid, the appellant's plea of
guilty in terms of section 112 (2) reads as follows:
"I
plead guilty to the charge put against me of murder in terms of
section 51 (2) of Act 105 of 1997 as explained to me by
my attorney
of record herein.
Charge
& facts
On
the 24
th
of October 2013 and at or near Embalenhle in the
district of Highveld Ridge I did unlawfully and intentionally kill
one Tsoanelo
Florence Mapela (herein after referred to as the
deceased), by stabbing her several times with a knife.
On
the 23
rd
October 2013 I came home and found that the
deceased has changed the lock.at the gate and I did not have keys to
open the gate.
I called out to her but she did not respond. I even
threw stones on top of the roof to get her attention but to no avail.
I then
climbed over the gate and went straight to my room, as I was
no longer living in the main house with the deceased. I later learnt
from one of my tenants that the deceased gave them keys for the gate,
but she did not give same..
On
the 24
th
October 2013 in the morning I went to the main
house and knocked at the deceased's door so that I can ask for the
gate key, but
she did not respond. I then broke the gate lock and the
deceased peeped through the window and insulted me. She told me that
the
Russians will be coming today and they will drive me out of the
yard because she no longer wants me in the premises. I then proceeded
to work. I came back home around 16H00 and went to my room.
At
around 16h45 I heard the deceased talking to some people outside. I
then peeped through the window and saw her talking to two
(2) men. I
heard her say: " The dog stays in this room" she pointed to
my room. Fearing that these men could be the Russians
she spoke about
in the morning, and that they were here to attack me, I grabbed my
axe and got out of the room. I charged towards
them while asking them
what were they doing at my house, and they ran away. The deceased ran
towards the house. I ran after her.
She got inside the house. I got
inside as well. She tried to grab a knife which was on top of the
table, but I quickly took it
from her and started stabbing her with
the said knife on her body indiscriminately.
I
did not count how many times I stabbed her as I was angry, and I
confirm the contents of the post mortem as per Dr J. S Du Plooy's
findings, and the number of stab wounds. After I stabbed her with the
knife I left her there and went to my brother's place and
informed
him about what happened. I was later arrested.
And
in relation to count 6:
I
farther plead guilty to the count of contravening a protection order.
On the above mentioned date. I wrongfully and intentionally
contravened a prohibited condition, obligation, or order issued
against me on 21 May 2012, and it was confirmed on the 2ih of June
2012 in favour of the deceased. I was well aware of the existence of
the said order and the condition prohibited by the said order.
I
am very much remorseful of my actions and take full responsibility of
what I have done. I had not planned to kill the deceased
as it
happened spontaneously when I lost my temper. The said Russians are
known of assaulting and killing people in our area and
I feared for
my life. It is a fact that I and the deceased were no longer in good
terms prior to her death. We were constantly
fighting and had a
protection order against each other, but we will reconcile again at
times. I never planned to kill her. It happened
on the spur of the
moment hence my plea in terms of section 51 (2) of Act 105 of 1997. I
further admit that I unlawfully and intentionally
killed the deceased
in this matter.
That
I had no permission whatsoever to kill the deceased and that I had
contravened a prohibited condition when I attacked the deceased,
and
finally I admit that my actions were wrongful in the prevailing
circumstances."
[4]
The
state accepted the appellant's plea of guilty as tendered and facts
contained in the statement in terms of section112 (2) as
is contained
in Exhibit "E". In essence the state accepted that the
murder charge fell under the provisions of section
51 (2) of the
Minimum Sentences Act; as opposed to premeditated murder falling
under
the
provisions of section 51 (1) of the Minimum Sentences Act.
[5]
Pursuant
to the appellant's guilty plea in terms of section 112(2) aforesaid,
the appellant was convicted on the same day 21 October
2014.
[6]
On
22 October 2014 the appellant was sentenced as follows:
[6.1]
Count 5: 18 years imprisonment;
[6.2]
Count 6: 2 years imprisonment;
[6.3]
In terms of section 280 of the CPA the sentence of two (2) years'
imprisonment in count 6 was ordered to run concurrently
with the
sentence in count 5. The effective sentence of the appellant is
therefore eighteen (18) years' imprisonment;
[6.4]
The appellant was declared unfit to possess a firearm.
[7]
The
appellant was legally represented during the trial proceedings in the
court
a
quo
[8]
On
17 August 2016 the appellant brought an application for leave to
appeal against his sentences before the learned judge
a
quo.
The
application for leave to appeal against his sentence
only
was
granted by the learned judge
a
quo.
The
appellant thus appeals against sentence.
[9]
The
state proved the following previous convictions against the
appellant:
[9.1]
1980 - Assault with intent to do grievous bodily harm-5 months of
imprisonment wholly suspended for a period of 3 years on
condition;
[9.2]
1981 - Assault with intent to do grievous bodily harm-3 months of
imprisonment;
[9.3]
1983 - Theft -Rl80 or 90 days of imprisonment;
[9.4]
1984 - Assault with intent to do grievous bodily harm- 4 cuts plus 4
months of imprisonment wholly suspended for a period
of 3 years on
condition;
[9.5]
1995-Trespassing - R200 or 20 days of imprisonment;
[9.6]
1996 - Assault with intent to do grievous bodily harm R1 000 or
6 months of imprisonment;
[9.7]
1997 - Theft - R900 or 90 days of imprisonment wholly suspended for a
period of 3 years on condition;
[9.8]
1999 - Theft - R800 or 4 months of imprisonment wholly suspended for
a period of 5 years on condition he is not convicted
of theft during
the period of suspension.
[10]
The appellant testified in mitigation of sentence. The factors placed
on record were the following:
He was 54 years old at the time of
sentencing and he was married to the deceased; no children were born
out of their marriage.
He has two children aged 26 and 24 born from a
previous relationship. At the time of the appellant's arrest, he was
unemployed.
He receives disability pension as well as normal pension
of R1 260 per month. He supplements his pension by doing piece jobs;
The
deceased was also unemployed and the appellant supported her.
Lastly he testified that he had apologised to the mother of the
deceased
and that he was remorseful.
[11]
N
M ("N"), the biological daughter of the deceased was called
by the state to testify in aggravation of sentence. She
testified
that the deceased was her mother; and that the appellant is not her
father. The deceased used to assist the appellant
to build shacks for
other people. At the time of her death the deceased had two children,
one of which is deceased; she is now
the only surviving child of the
deceased. At the time of her death the deceased was 53 years' old.
She further testified that she/N
has no support structure as her
mother-the deceased- used to assist her financially and in taking
care of her/the deceased's grandchild.
[12]
In
terms of section 51(2) of Act 105 of 1997 a minimum sentence of 15
years' imprisonment is prescribed for a first offender of
murder.
[13]
The
trial court found no substantial and compelling circumstances to
justify the imposition of a sentence less than the prescribed
minimum
sentence.
[14]
The
appellant contends that that the Court
a
quo
misdirected
itself in finding no substantial and compelling circumstances
justifying the imposition of a sentence less than the
prescribed
minimum of 15 years of imprisonment in respect of count 1. Further
that the Court
a
quo
misdirected
itself in not taking into account the following factors, which he
contends are peculiar to this case, and/or not attaching
sufficient
weight to the following factors:
[14.1]
The appellant and deceased had a history of having arguments;
[14.2]
They both had protection orders against each other;
[14.3]
The deceased had locked the appellant out of the communal property
without giving him a key to the gate;
[14.4]
The appellant had phoned the Police for assistance in this regard;
[14.5]
The deceased had threatened the appellant with the Russians who were
known to assault and kill people in the
community;
[14.6]
The deceased had picked up a knife when the appellant followed her
into the main house;
[14.7]
The appellant was in possession of an axe and did not attack the
deceased with an axe;
[14.8]
He took the knife from the deceased and stabbed her with it;
[14.9]
The deceased kept on insulting the appellant;
[14.10]
The appellant had lost his temper and was angry.
[15]
It
was submitted on behalf of the appellant that the above mentioned
factors cumulatively considered amounts to substantial and
compelling
circumstances justifying the imposition of a sentence less than 15
years of imprisonment; that therefore the appeal
in respect of
sentence ought to succeed and that a period of imprisonment less than
15 years of imprisonment should have been imposed.
[16]
It
was further submitted on behalf of the appellant that in the present
matter the state had accepted the plea of guilty by the
appellant,
the circumstances which had led to the commission of the crimes, and
the circumstances during the commission of the
crimes as contained in
the plea of guilty, which was accepted by the state. That the Court
a
quo
consequently
misdirected itself when it stated the following:
"What
I find difficult to understand is that two men running away from one
person who is armed with an axe and leaving an unprotected
woman
there. This incident, according to the accused, happened in the
afternoon at around 17h00 when people are still walking around
in the
streets and yet no one was called to corroborate this incident at the
gate, not even neighbours. I really have serious doubts
that such
incident happened. The deceased was therefore attacked not because of
the presence of the two unknown men but because
of the anger of being
locked out and other incidents relating to the domestic violence and
the unhappy relationship."
Further
that neither the state, nor the trial court gave an indication that
they did not accept or believe the explanation in the
plea of guilty,
or the evidence of the appellant in mitigation of sentence. That
therefore the trial court as well as the State
is bound by the
explanation given by the appellant regarding what had transpired on
the day of the murder.
[17]
Counsel
for the respondent submitted on the other hand argued that there are
no such substantial and compelling circumstances on
behalf of the
appellant. That nothing in the personal circumstances put before the
court
a
quo
constituted
substantial and compelling circumstance to justify the court from
deviating from imposing the minimum sentence; and
that the unusually
gruesome extent of the violence perpetrated against the deceased, the
fact that the appellant was the deceased's
husband, the nature of the
severe injuries inflicted, and the fact that there was a protection
order in place are all aggravating
factors to be taken into account;
that nothing in the appellant's personal circumstances are indicative
of the presence of substantial
and compelling circumstances which
justify the imposition of a lesser sentence.
[18]
Further,
that the sentence imposed does not induce a sense of shock, and given
the facts, is not disproportionate to the offence
and no irregularity
can be found.
[19]
It
is trite that a court of appeal does not lightly interfere with a
sentence imposed by the court of first instance; see
R
v Lindley
1957 (2) SA 235
(N).
In
S
v Rabie
1975
(4) SA 855
(A)
it
was held that the appeal court (a) should be guided by the principle
that punishment is pre eminently a matter for the discretion
of
the trial court, and (b) be careful not to erode such discretion,
hence that the sentence should only be altered if the discretion
has
not been judicially exercised. A court of appeal will interfere with
the sentence only if there is a material misdirection
or if the court
could not, in the circumstances of the case, reasonably have imposed
the particular sentence. In S v
Salzwedel
1999 (2) SACR 586
(SCA) at 591F-G it was held that:
"A
court of appeal was entitled to interfere with a sentence imposed by
a trial court in a case where the sentence was 'disturbingly
inappropriate', or totally out of proportion to the gravity or
magnitude of the offence, or sufficiently disparate, or vitiated
by
misdirections of a nature which showed that the trial court had not
exercised its discretion reasonably.
"
[20]
The
general approach to be followed by a Court of Appeal with regards to
sentence is set out as follows in S v Pieters
1987 (3) SA 717
(A) at
727:
"Met
betrekking tot appelle teen vonnis in die algemeen is daar
herhaaldelik in talle uitsprake van hierdie Hof beklemtoon
dat
vonnis-oplegging berus by die diskresie van die Verhoorregter. Juis
omdat dit so is, kan en sal hierdie Hof nie ingryp en die
vonnis van
'n Verhoorregter verander nie, tensy dit blyk dat hy die diskresie
wat aan hom toevertrou is nie op 'n behoorlike of
redelike wyse
uitgeoefen het nie. Om dit andersom te stel: daar is ruimte vir
hierdie Hof om
'
Verhoorregter
se vonnis te verander alleenlik as dit blyk dat hy sy diskresie op 'n
onbehoorlike of onredelike wyse uitgeoefen het.
Dit is die
grondbeginsel wat alle appelle teen vonnis beheers.
"
[21]
Interference
will only be competent if the appeal court is satisfied that the
trial court had not exercised its sentencing discretion
reasonably.
See
S v M
at
lala
2003(1) SACR 80(SCA) 83b-f
[22]
The
Supreme Court of Appeal reiterated that it would interfere with
sentences imposed by a trial court only where the degree of
disparity
between the sentence imposed by the trial court and the sentence the
appellate Court would have imposed was such that
interference was
competent and required. See
S
v
Monyane
& Others
2008(1)
SACR 543(SCA); S
v
Mat/ala supra.
[23]
It
became clear that one of the issues in this appeal is whether the
court
a
quo
erred
in not finding that the facts put forward by the appellant amounted
to substantial and compelling circumstances justifying
a departure
from the minimum sentence as envisaged by s51(3)(a) of the Act. The
section requires that, if the court is satisfied
that substantial and
compelling circumstances exist which justify the imposition of a
sentence less than the prescribed minimum
sentence, it must enter
those circumstances on the record of the proceedings and may
thereupon impose such a lesser sentence as
it deems appropriate.
[24]
The
question to be answered is whether the court
a
quo
erred
in failing to find that the circumstances of this case were
substantial and compelling, as to justify a departure from the
minimum sentence; further whether the court
a
quo
erred
in imposing a sentence of eighteen (18) years' imprisonment, which is
above the minimum sentence of 15 years stipulated in
section 51 (2)
of the Minimum Sentences Act.
[25]
I
cannot find on the facts before this court that the learned judge
misdirected himself in finding that there were no substantial
and
compelling circumstances in this case, and imposing the sentence he
imposed. It is correct as submitted by the appellant's
counsel, that
having
accepted the appellant's plea, the state was bound by the facts set
out in the plea;
however
this does not erode the discretion of the sentencing Court. The Court
a quo is entitled to indicate that it did not accept
further
submissions from the bar, see
S
v Khumalo
2013
(1) SACR 96
(KZP).
[26]
Violence
against women is rife and prevalent, has reached alarming proportions
and has become pervasive and endemic, and sentencing
in such matters
must reflect the gravity of the crime, for society not to lose
confidence in the criminal justice system. In The
Director of Public
Prosecutions v Mngoma
2010 (1) SACR 427
(SCA) at 432, paragraph [14]
the following is stated:
"A
failure by our courts to impose appropriate sentences, in particular
for violent crimes by men against women, would lead
to society losing
its confidence in the criminal justice system. This is so because
domestic violence has become pervasive and
endemic."
Femicide/spousal
murder is of national importance, so much so that the government has
been taking a harsher stance due to the pandemic
proportions thereof
in the country.
[27]
In
S
v
Bastian
WCHC
case no. SS35 the court held the following at paragraph [26]:
"Not
only will such a sentence reflect the seriousness with which our
society and the courts view the crime of murder committed
and the
violence perpetrated against the deceased as a woman by her own
husband, but it will send a clear message that the abuse
of female
partners within the confines of the marriage relationship and the
home is intolerable and will not be treated lightly.
Nothing in the
accused's personal circumstances persuades me differently or compels
me to impose a lesser sentence.
"
[28]
The
sentence imposed must reflect the gravity of the crime and take
account of the prevalence of domestic violence in South Africa;
refer
S v Roberts
2000 (2) SACR 522
(SCA) at par [20].
[29]
I
have considered both arguments before this court, keeping in mind
what was said in S v Malgas, 2001(1) SACR 469 (SCA) at 477 D-E
regarding the concept of substantial and compelling circumstances,
where the following is stated:
"The
specified sentences were not to be departed of lightly and for flimsy
reasons which could not withstand scrutiny. Speculative
hypotheses
favourable to the offender, maudlin sympathy, aversion to imprisoning
first offenders, personal doubts as to the efficacy
of the policy
implicit in the amending legislation, and like considerations were
equally obviously not intended to qualify as substantial
and
compelling circumstances.
"
[30]
The
Supreme Court of Appeal has, also in S v Malgas supra, at paragraph
[18] observed that the wording of the Statute signals that
it is
deliberately and advisedly left to the Courts to decide in the final
analysis whether the circumstances of any particular
case call for a
departure from the prescribed sentence. In doing so the Court is
required to regard the prescribed sentence as
being generally
appropriate for the crime specified and enjoined not to depart from
them unless they are satisfied that there is
weighty justification
for doing so.
[31]
It
is so that society cries out for protection against all types of
criminals who should not be sent to prison today to return tomorrow
showing bold and daring faces _as heroes of crime in a community that
shuns crime. The convicted offenders must do their stint
in prison
for all serious crimes (as the ones here) so that when they return
they must respect the right to life, property and
dignity and all
other rights of the citizens of this country, including the rights of
women and children. The appellant was clearly
cruel, heartless and
abusive of the deceased. The protection order obtained by the
deceased against the appellant bears witness
to this. The appellant
never produced any protection order which he alleges he had obtained
against the deceased.
[32]
From
an early age, it is apparent from the list of previous convictions,
that the appellant is a violent man. He has no less than
four (4)
previous convictions of assault with intent to do grievous bodily
harm.
[33]
The
prov1s1ons of the Minimum Sentences Act prescribe a minimum sentence
and not a maximum sentence. There is no bar to a Court,
in
appropriate circumstances and having regard to the facts of a
particular case, imposing a sentence above the minimum sentence
set
out in the Minimum Sentences Act. The gruesome manner in which the
demise of the deceased was brought about is an extremely
aggravating
feature and is indicative of the heartless and merciless way in which
the crime was executed. From the post-mortem
report compiled by Dr
Jacobus Stephanus Du Plooy, dated 29 October 2013, there are no less
than seventeen (17) stab wounds, most
of which are around the
deceased's chest, including the heart.
[34]
The
appellant, on his own version, had no reason to follow the deceased
into the house where he brutally stabbed her indiscriminately
to
death. The alleged 'Russians' he alleges the deceased had called, on
his own version, had run away when he allegedly came out
of his room
wielding an axe; he did not pursue them; there was no imminent danger
posed against him. When the deceased ran into
the house he pursued
her and stabbed her many times. From the facts, the deceased was not
posing any danger to him prior to the
pursuit.
[35]
The
court
a
quo
carefully
considered the personal circumstances of the Appellant, the
seriousness of the offences, the prevalence of the crime and
the
interests of society.
[36]
Evidently
sentencing in this matter must attach due weight to the gravity of
the crimes for which the appellant has been convicted
of. The
seriousness of the crimes must weigh heavily in deciding upon
appropriate sentences. The trial court was fully aware of
this and
largely imposed a sentence of appropriate severity. The cases cited
by the appellant's counsel in the heads of argument
are
distinguishable; most, if not all, have to do with alleged infidelity
on the part of the deceased, which is not the case
in
casu.
[37]
I
am not persuaded that the appellant's personal circumstances set out
above meet the threshold of substantial and compelling circumstances
set out ins
51(3)(a)
of
the Act. There are no circumstances relating to the commission of the
offence which amount to such weighty circumstances. The
imposed
sentence cannot in my considered view be said to be disturbingly
inappropriate, vitiated by misdirection or totally out
of proportion
to the gravity or magnitude of the offences the appellant has been
convicted of.
[38]
The
appeal against the sentence imposed can thus in my view, not succeed
[39]
In
the result, I propose that the following order be made:
1.
The
appeal on sentence is dismissed. The sentence imposed by the court
a
quo
is
confirmed.
L
M MOLOPA-SETHOSA
JUDGE
OF THE HIGH COURT
I
agree
N
RANCHOD
JUDGE
OF THE HIGH COURT
I
agree
J
KOLLAPEN
JUDGE
OF THE HIGH COURT
It
is so ordered
Appearances:
For
the Appellant:
Adv: LA Van Wyk
Instructed
by:
Legal Aid South Africa
For
Respondent:
Adv: L Williams
Instructed
by:
Director of Public Prosecutions