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[2019] ZAGPPHC 162
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Warona v S (A379/2016) [2019] ZAGPPHC 162 (15 May 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(NORTH GAUTENG HIGH COURT,
PRETORIA)
(1)
REPORTABLE:
YES
/NO.
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO.
(3)
REVISED.
Case No: A 379/2016
In
the matter between:
Tebogo
Johannes Warona
Appellant
And
The
State
JUDGMENT
Maumela
J.
1. This
matter came before court as an automatic appeal. It is against both
conviction and sentence. Before the Regional Court sitting in
Stilfontein, the Appellant who was 27 years of age at the time he
was
charged, was arraigned on the following two counts:
1.1. Count
1: Murder read with the provisions of section 51 of the Criminal Law
Amendment Act
1997: (Act No 105 of 1997) and
1.2.
Housebreaking with intent to commit an offence unknown to the
prosecutor.
ALLEGATIONS.
2.
The allegations were the following:
2.1. On Count 1 the
allegations were that upon or about the 15
th
of April 2016, and at or near Jouberton in the Regional Division of
Mathosana, the accused did unlawfully and intentionally kill,
Robert
Makenke Bolokane, an adult male.
2.2. On Count 2, the
allegations were that upon or about the date, and place stated under
count 1 above, the accused
did unlawfully and intentionally break and
enter the house of Robert Makenke Bolokane with intent to commit an
offence unknown
to the prosecutor.
BACKGROUND.
3. Before
the court
a quo,
Appellant
was legally represented throughout the trial. He stated that he
understood the charges put. He pleaded not guilty to both
of them. In
terms of section 115 of the Criminal Procedure Act; Appellant
advanced a plea explanation. In that regard, he explained
that on the
day of the incident, he was among a group of people who walked to the
deceased's home. He stated that before the group
entered the
deceased's home, he fled. He denied complicity for the deceased's
death. He stated that he never did anything that
caused the deceased
to lose his life.
4. Before
the court
a quo,
Appellant
made admissions in terms of section 220 of the Criminal Procedure
Act. By agreement the admissions were admitted into
the record of the
proceedings of this case. The admissions made are the following:
4.1. The
deceased was admitted to be Robert Makenke Bolokane.
4.2. The
deceased was transported from the scene of the crime to Tshepong
Hospital where he
died.
4.3. The
body of the deceased did not sustain further injuries from the time
it was taken from
the scene of the crime, while he was being
transported to Tshepong Hospital; until a post-mortem examination was
conducted on it
by Dr Ramon on 19
th
of April 2016.
4.4.
The contents of the
post-mortem report compiled by Dr Ramon upon examining the body of
the deceased were accepted. By agreement
the report was accepted into
the record of the proceedings of this case as Exhibit "A".
EVIDENCE.
5. The
state led evidence of a single witness; namely Lindiwe Mutlwe who was
cross-examined by the defence attorney. By agreement the state handed
in a statement made by the Appellant to one Captain Mohape
at
Alberton Police Station. This was after his arrest on the 17th of
April 2016. It was admitted that before he made the statement,
Appellant was favoured with an explanation of his Constitutional
Rights. By agreement the confession was admitted into the record
as
Exhibit "C".
6. At
the close of the state case, Appellant testified under oath in his
own defence. He was cross-examined by the state advocate. He
submitted that the state failed to prove the case against him beyond
a reasonable doubt and that he ought to be acquitted. The court
a
quo
admitted the version of the
state and rejected that of the Appellant. It convicted Appellant on
two counts. On count 1 Appellant
was convicted of: Murder read with
the provisions of section 51 of the Criminal Law Amendment Act 1997:
(Act No 105 of 1997). On
count 2, he was convicted of: Housebreaking
with intent to murder.
7. On
Count 1; Appellant was sentenced to undergo life imprisonment. On
Count 2; he was sentenced to undergo 10 years imprisonment. In terms
of section 280 of the Criminal Procedure Act, the court ordered
the
sentences imposed on both counts to run concurrently. In terms of
section 103 of the Firearms Controls Act, Appellant was declared
to
be unfit to possess a firearm. It was explained to the next of kin of
the deceased that they have the latitude to make inputs
in the event
where a court may consider the appropriateness of the sentence
passed.
ISSUES.
8. The
court is to determine the correctness or otherwise of the conviction
and sentence arrived at by the court
a
quo
against the Appellant.
AD
CONVICTION.
9. The
state called a single witness, Lindiwe Mutlwe. Under oath this
witness testified that the deceased in this case, Robert Makenke
Bolokane, was her boyfriend. On the evening of the 15th of April
2016, she visited her boyfriend's place of residence. The two of them
sat, whiling away the evening. She sat on the bed and the
deceased on
a chair. While the two of them sat, looking one another in the eyes;
at around 2 o'clock in the morning, they heard
people making a noise
in the street.
10. They
peeped through an opening in the shack they were in. The deceased
said to her
"the boys are
coming."
She understood the
boys to be members of a gang which is a rival to a gang to which her
boyfriend belonged. She was not familiar
with the gang outside in the
street. She stated that the name of her boyfriend's gang is "Jungle."
The group that was
making noise outside walked past her boyfriend's
place of residence and proceeded towards the home of one Maruping who
is a friend
of her boyfriend. She testified that Maruping's home is
very close to that of the deceased. According to her, an argument
took
place between the group of boys outside and Maruping.
11.
Fearing for their safety, she pleaded with the deceased suggesting
that they flee.
She feared that on their way back, the group, who are
members of the rival gang, might enter the premises of her
boyfriend's home
and attack them. The deceased rejected her
suggestion. She testified that in that area, most premises are not
fenced in. She stated
that while the gang was on its way back, she
heard one of them remark:
"but
Tebogo
[1]
also
stays
in this place. Why don't we enter?"
12.
This witness testified that the gang entered the premises of a
neighbour's home. She
and her boyfriend heard them breaking windows
and kicking doors at their neighbour's place. Her boyfriend switched
off the lights
in their tin shack. One of the gang members remarked:
"but there are people in this
house!"
This person was
referring to her boyfriend's shack. She testified that the gang
started kicking at the door of their shack. They
dislodged the
corrugated irons. She screamed and at that time the deceased took a
knife and lifted the mattresses off the bed,
because the group was
pelting them with stones.
13.
She hid behind a fridge. She noted that the gang members wore
bandannas
[2]
over their faces, just under their eyes. She tried in vain to keep
the door closed until she dashed back and hid behind the fridge.
The
gang kicked the door open. She suggested to the deceased again that
the two of them should flee. The deceased did not respond
to her. At
this point of her testimony, the witness broke down prompting the
court to adjourn for a while for her to regain her
composure.
14.
Upon resuming with giving evidence, the witness told the court
further that she skipped
over a corrugated iron and fled. One of the
gang members gave chase and stabbed her on her right index finger.
She could not identify
this person because of the bandanna he had on
his face. She told court that of all the people that launched the
onslaught, the
Appellant was the only one whose face was not covered
with a bandanna.
Therefore, she was able to
identify him.
15.
The witness testified that she was able to identify Tebogo at the
time when the gang
was removing corrugated iron from the deceased's
shack. She said that at that time, Tebogo peeped into the house and
she recognised
his face. She testified that although her boyfriend
had switched off the lights in the shack, streetlights casted light
into the
shack; enabling her to see. She said that it was at that
stage that she exited the shack and fled. Before she fled, she looked
Tebogo, the Appellant, into the eye, over about three to four
seconds. She knows Tebogo because the latter stays at a zone near
the
one in which she stays and she would usually see him standing at the
corner of a street, selling stuff like chicken-feet, also
known as
"runnaways."
16.
The appellant made an affidavit or statement before Captain Mohape.
In it he stated
that he and his friends went to the deceased's home.
He states that the reason for going to the deceased's home was to
enquire
why the deceased chased him and members of his gang on an
occasion when they passed through that area. However, he contends
that
he did not witness the attack, because he fled before it
happened. He concedes that he was aware that a fight might ensue
because
members of his gang wielded knives and other dangerous
weapons. He wielded no object or weapon.
EVALUATION.
17.
It is not in dispute that the deceased, died as a result of a
stab-wound that he sustained
at the time he and his girlfriend fell
victim to a sustained attack by a gang of which the appellant was
part. While the appellant
admits having been at the deceased's home
at the time of the attack, he denies having participated in it. At
the same time he admits
that the objective of the gang in going to
the house of the deceased and his friend was to launch an attack
against the deceased
and his friend. He confirmed that the people who
went with him were armed with knives and that they went to the
deceased's place
to take revenge. He said he knew that someone could
be hurt during the attack.
18.
Lindiwe Mutlwe, the first state witness, is the only eyewitness who
witnessed the
attack upon the deceased's home and person. The
appellant contends that he is a victim of false identification where
Lindiwe is
concerned. He is adamant that while he was present at the
deceased's house on the day of the attack, he did not participate in
the attack against the deceased. However, he admits that when he and
the group went to the house of the deceased's friend, and ultimately
the deceased's home, the purpose was to launch an attack against
members of the rival gang, to which the deceased and his friend
Maruping belonged.
19.
It is trite that Appellate Courts do not have a free hand to
interfere with findings
of the court
a
quo.
In this case, it is submitted
on behalf of the Appellant that the court
a
quo
erred in admitting evidence of
the state which comprised of evidence of a single witness. In the
case of Myandu v Padayachi
[3]
,
the court stated the following concerning power of the appellate
court where it regards factual findings.
"It
is trite that a court of appeal will not interfere with the findings
of fact and credibility of the trial court unless
it is apparent from
the record that the court a quo either materially misdirected itself
or erred to the extent that its findings
are vitiated and fall to be
set aside. The court of appeal must also remain cognisant that the
trial court has the advantage of
having observed and heard the
witnesses."
20.
Our courts hold that it is only in instances where demonstrable and
material misdirection
by the trial court is evident where the
Appellate Court will be justified to interfere with findings of the
trial court. In the
case of S v Hadebe and Others
[4]
,
the court stated the following:
"It
was well to recall yet again the well-established principles
governing the hearing of appeals against findings of fact,
which
were, in short, that in the absence of demonstrable and material
misdirection by the trial court, its findings of fact were
presumed
to be correct, and would only be disregarded if the recorded evidence
showed them to be clearly wrong."
21.
There is no rule against the admission of evidence by a single
witness. On the contrary,
section 208 of the Criminal Procedure Act
provides that conviction may follow on evidence of a single witness.
To that end, the
section provides as follows:
"An
accused may be convicted of any offence on the single evidence of any
competent witness.”
For the
accused to be found guilty of the crime alleged, his conduct must
fulfil the elements listed in the definition of the crime
alleged. In
his publication; Criminal Law, C.R. Snyman, defines murder as
follows
[5]
:
"Murder is the unlawful,
intentional killing of another human being.”
See
S v Sigwahla
[6]
.
22.
Except for the evidence by Lindiwe, there is no other evidence
linking the Appellant
directly to the commission of the crimes in
this case. Lindiwe is a single witness in relation to the actual
physical attack that
was launched by the gang against the dwelling
and the person of the deceased. It is trite that courts stand warned
to exercise
care where it concerns evidence of a single witness.
However it is trite that evidence by a single witness can suffice to
achieve
a conviction.
23.
The Appellant was not a stranger to Lindiwe who testified that she
and the Appellant
stay in the same area. She explained that she would
see the Appellant and others, selling chicken feet and other
items at
the corner of the street. There is therefore no likelihood
that Lindiwe could have mistaken someone else for the Appellant.
24.
Besides, Lindiwe was a credible witness who did not contradict
herself in any manner.
Neither did she tailor her evidence in order
to unnecessarily provide a false semblance of credibility in her
evidence. Testifying
about the Appellant, Lindiwe could easily claim
to have seen the appellant participating in the attack against the
deceased. However
she only told court what she saw, namely that at
some point during the attack, the Appellant peeped through the
corrugated iron
into the room of the shack wherein she and the
deceased had sought refuge during the attack.
25.
Regardless of Appellant's role during the attack, he admits having
been part of the
group that walked to the homes of both the deceased
and his friend. He claims that he only peeped into the room where the
deceased
was together with his girlfriend. Evidence shows that the
group or gang was being prompted to act from time to time by an
individual
if not individuals, who would shout directives from time
to time, which the entire group obeyed from time to time. Lindiwe
heard
it when someone remarked that the deceased stays in the area,
and suggested that they enter the deceased's premises. Consequent
to
that, she saw the Appellant peeping through the corrugated iron.
26.
This demonstrates that the appellant was acting in consort with what
was being directed
from time to time. She heard it when someone
shouted that the group should stop pelting the deceased's dwelling
with stones so
that the attack can be more co-ordinated. It is clear
that on the day of the incident the appellant associated himself with
what
the group did. He shared a common purpose with everyone in the
group.
27.
Lindiwe saw it when the group busted the door open and systematically
removed iron
sheets from the structure of which deceased's room
consisted. It is at this stage that Lindiwe saw the Appellant,
peeping into
the room through the iron sheets. She testified that
although the deceased had switched off the lights, street-lights
illuminated
the room, enabling her to see. This is how she was able
to identify the Appellant; more so because unlike others, the
Appellant
did not wear a 'bandanna' over his face. She was not seeing
the Appellant for the first time because the two of them stay in the
same area. Besides, she would always see the Appellant at the corner
of the street selling chicken-feet and other stuff.
28.
While the Appellant admits having been among the gang that launched
an attack upon
the place of the deceased, it has to be borne in mind
that his mere presence would not suffice in proving the case against
him
beyond a reasonable doubt. It is trite that in criminal matters
the onus rests on the state to prove the case against the accused
beyond a reasonable doubt. In the case of S v Thebus and Another
[7]
, the court stated the following with regard onus of proof in
criminal matters:
"The state
bears the onus of proving every element of an offence without the
assistance of the accused. It is clear from our
constitution that the
presumption of innocence implies that an accused person may only be
convicted if it is established beyond
a reasonable doubt that he or
she is guilty of the offence. That, in turn, requires the proof of
each element of the offence. However,
our Constitution does not
stipulate that only the state's evidence may be used in determining
whether the accused person has been
proven guilty. Indeed, our law
has always recognised that the question of whether the accused has
been proven guilty or not is
one to be determined on a conspectus of
all the admissible evidence, whatever is provenance".
29. .
In the case of R v Mokoena
[8]
De Villiers JP stated the following:
"The
uncorroborated evidence of a single, competent and credible witness
is no doubt declared to be sufficient for a conviction
by s 284 of
Act 31 of 1917, but in my opinion that section should only be relied
on where the evidence of a single witness is clear
and satisfactory
in every material respect."
30.
In S v Sauls and Others
[9]
the court stated:
'There is no rule
of thumb test or formula to apply when it
comes
to a consideration of the credibility
of a single witness... The trial judge will weigh his evidence, will
consider its merits and
demerits and, having done
so
will decide whether there are
shortcomings or defects or contradictions in his testimony, he is
satisfied that the truth has been
told. The cautionary rule referred
to by De Villiers JP in 1932 (in R v Mokoena), may be
a
guide to
a
right decision but it does not mean
"that the appeal must succeed if any criticism, however slender,
of the witnesses' evidence
where well founded
....
"It
has been said more than once that the exercise of caution must not be
allowed to displace the exercise of common sense."
31.
The evidence by Lindiwe was clear regarding the presence of the
Appellant at the time
of the attack against the deceased in his
property. The court
a quo
exercised
all necessary caution in considering the evidence of Lindiwe. It
considered that she was a single witness regarding the
attack on the
deceased and his property. In testifying Lindiwe was consistent, much
as she stood her ground during cross examination.
32.
In the case of S v Abdoorham
[10]
,
the court stated:
"The court is
entitled to convict on the evidence of
a
single witness if it is satisfied
beyond reasonable doubt that such evidence is true. The court may be
satisfied that the witness
is speaking the truth notwithstanding that
in
some
respects
he is an unsatisfactory witness."
The
court
a quo
was
correct in convicting the appellant on the basis of the evidence by
Lindiwe is a single witness.
APPELLANT'S
PARTICIPATION.
33.
Lindiwe saw, the Appellant when he peeped into the room where she and
the deceased
were. No one testified about seeing the Appellant
assaulting the deceased in any manner or damaging his property. Given
the fact
that Lindiwe only saw the Appellant peeping into the room,
the question arises whether the state proved his
suit
beyond a reasonable doubt.
34.
However, our law recognizes a concept known as 'the doctrine of
common purpose'. In
line with this doctrine, an accused person may be
found guilty of an offence where he or she did not necessarily and
actively participate
in the physical commission of the crime, if the
conduct of such a person fulfils certain requirements. In some
instances, a person
does not directly participate in the commission
of the crime, but agrees with its commission. The court may convict
such a person
provided his or her action fulfils particular
requirements.
35.
An example of such an instance is in the case of S v Shaik
[11]
,
where the court stated the following:
"Our
Jaw provides that where two or more people, having a common purpose
to commit a crime, act together in order to achieve
that purpose, the
conduct of each of them in the execution of that purpose is imputed
to the others".
For the
doctrine of common purpose to find application, it is required among
others that the accused actively associates him or
herself with the
common purpose
[12]
. It is therefore incumbent upon the state to prove that Appellant
shared a common purpose with the gang that attacked the deceased's
dwelling and killed him. It also has to be proven beyond a reasonable
doubt that Appellant acted in furtherance of that purpose.
36.
The requirements for proof of common purpose were outlined in the
case of S v Mgedezi
[13]
,
where the court stated the following:
"In
the absence of proof of a prior agreement, accused No 6, who was not
shown to have contributed causally to the killing
or wounding of the
occupants of room 12, can be held liable for those events, on the
basis of the decision in S v Safatsa and Others
[14]
,
only if certain prerequisites are satisfied. In the first place, he
must have been present at the scene where the violence was
being
committed. Secondly, he must have been aware of the assault on the
inmates of room 12. Thirdly, he must have intended to
make common
cause with those who were actually perpetrating the assault.
Fourthly, he must have manifested his sharing of a common
purpose
with the perpetrators of the assault by himself performing some act
of association with the conduct of the others. Fifthly,
he must have
had the requisite mens rea; in respect of the killing of the
deceased, he must have intended them to be killed, or
he must have
foreseen the possibility of their being killed and pet1ormed his own
act of association with recklessness
as
to whether or not death was to
ensue."
37.
Appellant admits having been present at the scene of the crime. He
testified that
he and the group walked to the homes of the deceased
and his friend in order to launch attacks. Evidence shows that on
that day
prompts and directives were being issued by someone, or some
people from time to time to go and take revenge for the altercation
that occurred earlier. The group acted in line with the prompts and
directives. At no stage did the Appellant show dissent or show
any
opposition to what was being suggested or done by the group. In that
way, the Appellant made common purpose with what the entire
group was
doing from time to time. It must also be noted that the group was
armed with knives and Appellant testified that he knew
that an attack
was going to take place and that people could get hurt,
38.
In peeping into the room where the deceased and his girlfriend were,
and without attempting
to stop the gang, or sounding opposition to
what they were doing, the appellant formed an association with what
the gang was doing.
When the gang entered the premises of the
deceased's home; one of them shouted: “
there
are people here.”
It is safe
therefore to conclude that the Appellant was well aware that there
are people in the room that the gang was attacking
and that someone
could get hurt or should have foreseen that someone could get hurt or
even killed.
39.
The Appellant acted with
mens rea
in
joining into the attack on the deceased's dwelling. The court rejects
the submission by the Appellant to the effect that he did
not
participate in the attack on the deceased and his girlfriend or
should have foreseen that they could be attacked and even killed.
In
the result, the version of the Appellant stands to be rejected and
that of the state accepted. The verdict of the court
a
quo
convicting the Appellant stands
to be confirmed.
40.
Concerning sentence, the murder of which the Appellant stands
convicted in count 1
is read with the provisions of section 51 (1) of
the Criminal Law Amendment Act 1997: (Act No 105 of 1997). The
essence of this
section being read with count 1 was fully explained
to the Appellant by the court
a quo
and he understood it. The court has
to determine the correctness or otherwise of the court
a
quo
in imposing upon the Appellant
the prescribed minimum sentence provided for under section 51 (1)
Criminal Law Amendment Act 1997
.
41.
The court
a quo
imposed
the following sentences upon the appellant:
43.1.
For
purposes of count 1, the Appellant was sentenced to undergo life
imprisonment.
43.2.
On
Count 2, he was sentenced to undergo 10 years imprisonment.
43.3.
The
sentences on both counts were ordered to run concurrently.
42. The
court has to determine whether the court
a
quo
was or was not correct in
imposing upon the appellant the sentences indicated. In order to do
so, the court has to consider the
offences committed, the interests
of the accused and the interests of the community. See S v Zinn
[15]
.
THE
OFFENCES.
43.
The offences of which Appellant stands convicted are very serious. A
life was lost.
Property was destroyed and gripping fear instilled
into the deceased in this girlfriend, as well as into all in the
neighbourhood
who became aware of the wanton and indiscriminate
attack launched. Instances of groups and gangs lumping together with
a view to
unleash senseless and violent attacks that undermine peace
in the society are for ever in a day recurrent, much as there tally
is on a steep increase.
44.
It is trite that where a minimum sentence stands prescribed, courts
stand dissuaded
from avoiding the imposition on the basis of flimsy
reasons. In the case of S v Malgas
[16]
, the court stated the following:
"Courts
are required to approach the imposition of sentence conscious that
the Legislature has ordained life imprisonment (or
the particular
prescribed period of imprisonment)as the sentence that should
ordinarily and in the absence of weighty justification
be imposed for
the listed crimes in the specified circumstances. Unless there are,
and can be seen to be, truly convincing reasons
for
a
different response, the crimes in
question are therefore required to elicit
a
severe, standardised and consistent
response from the courts. 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 as 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. The Legislature has, however, deliberately left it to
the courts to decide
whether the circumstances of any particular case
call for a departure from the prescribed sentence. All factors (other
than those
set out above) traditionally taken into account in
sentencing (whether or not they diminish moral guilt) thus continue
to play
a
role;
none is excluded at the outset from consideration in the sentencing
process. While the emphasis has shifted to the objective
gravity of
the type of crime and the need for effective sanctions against it,
this does not mean that all other considerations
are to be ignored.
The ultimate impact of all the circumstances relevant to sentencing
must be measured against the composite yardstick
('substantial and
compelling’ and must be such as cumulatively justify
a
departure from the standardised
response that the Legislature has ordained."
45.
In attacking the deceased, Appellant
and his co-perpetrators unleashed
untold
violence against
the
deceased. They purposefully
brought
along
weapons and an assortment of
other dangerous objects with a view
to
inflict harm. They did not mind the consequences of their actions. In
the case of S v Mnguni
[17]
,
the court held that: "a
cruel
and inhuman attack on a helpless unarmed victim is considered to be
an aggravating factor.
"
46.
The Appellant urges this court to consider interfering with the
sentence imposed upon
him by the court
a
quo.
It is also trite that Appellate
Courts do not enjoy a free hand on the basis of which to interfere
with sentences imposed by trial
courts. Our courts have determined
requirements that ought to be fulfilled for an Appellate Court to
interfere with a sentence
imposed by a trial court.
47.
The Appellant also appeals against the sentence imposed on him by the
court
a quo.
In
S v Zinn
[18]
,
the court stated that in imposing the sentence, the court has to take
into consideration, the crime committed, the interests of
the
accused, and the interest of the community. This principle was
reiterated in the case of S v Kumalo
[19]
, where the court stated the following:
"Punishment
must fit the criminal
as
well
as
the
crime, be fair to society, and be blended with a measure of mercy
according to the circumstances."
48.
In our law the imposition of sentence is considered to be an exercise
completely subject
to the discretion of the sentencing court.
Therefore Appeal Courts may not freely interfere with sentences
imposed by trial courts.
In the case of S v Romer
[20]
,
the court stated the following:
"It
has been held in a long line of cases that the imposition of sentence
is pre-eminently within the discretion of the trial
court. The
appellate court will be entitled to interfere with the sentence
imposed by the trial court only if one or more of the
recognised
grounds justifying interference on appeal have been shown to exist.
Only then will the appellate court be justified
in interfering. These
grounds are that the sentence appealed against is:
(a)
disturbingly inappropriate;
(b)
so
totally out of proportion to the
magnitude of the offence;
(c)
sufficiently disparate;
(d)
vitiated by misdirection showing that
the trial court exercised its discretion unreasonably; and
(e)
is otherwise such that no reasonable
court would have imposed it.
"
.
See
S v Giannoulis
[21]
S v Kibido
[22]
and S v Salzwedel and
Others
[23]
."
49. In S v
Petkar
[24]
,
the court stated that a court on appeal can only interfere with a
sentence if it is vitiated by certain attributes. In that regard
the
court stated the following:
"This
Court's powers to interfere with a sentence on appeal are
circumscribed. It may only do
so
if
the sentence is vitiated by (1) irregularity, (2) misdirection, or
(3) is one to which no reasonable court could have come, in
other
words, one where there is a striking disparity between the sentence
imposed and that which this Court considers appropriate.
The main
thrust of the argument of Mr Engelbrecht, for the appellant, was that
the appellant's sentence fell into the third category."
50. The
question the court has to answer is not whether this court in the
place of the court
a quo
would
have, or could have imposed a different sentence. It is rather
whether or not the court a quo exercised discretion reasonably.
In S
v Pieters
[25]
,
the Honourable Botha JA stated at page 7340-F that the decisive
question facing a Court of Appeal on sentence was whether it was
convinced that the court which imposed the sentence being adjudicated
upon exercised its discretion to do so unreasonably. If so,
the Court
of appeal was entitled to interfere and, if not, then it cannot.
51. When
compared to the offence committed, the interests of the Appellant and
those of the
community the sentence imposed upon the appellant does
not appear to be out of proportion. It is not shockingly
disproportionate
to the offence committed in the circumstances of the
Appellant. That being the case there seems to be no basis upon which
interference
with the sentence imposed by the court
a
quo
can be justifiable. Therefore
the appeal against sentence also stands to be dismissed.
52. In the
result, the appeal against both conviction and sentence stands to be
dismissed and
the following order is made:
ORDER.
1.
The appeal against both
conviction and sentence is dismissed.
Maumela
J
Judge
of the High Court of South Africa.
I agree and it is so ordered.
Tolmay
J.
Judge
of the High Court of South Africa.
APPEARANCES
For
the Appellant:
Adv. Mohammed
For
the State:
Adv. Kok
Heard:
07 March 2019
Delivered:
15May2019
[1]
Tebogo is her boyfriend; the deceased.
[2]
A bandanna is a type of a handkerchief.
[3]
[2016]
4
All SA 110
(KZP).
[4]
1997 (2) SACR 641
(SCA}, at page 642.
[5]
Fifth edition, at page 447.
[6]
1967 (4) SA 566
(A}, at pages 570 - 571.
[7]
2003(2) SACR 319, at page 356, paragraph 84.
[8]
1932 OPD 79
, at 80.
[9]
1981 (3) SA 172
(A) at 180E-G.
[10]
1954 (3) SA 163
(N);
E-F.
[11]
1983 (4) SA 57
, at page 65 A
[12]
See Criminal Law, fifth edition by C.R. Snyman, at page 267.
[13]
13.
1989 (1) SA 687
(A) at 7051- 706C.
[14]
1988(1) SA 868 (A).
[15]
1969 (2) SA 537 (A).
[16]
2001 (2) SA 1222 (SCA),
[17]
1994 (1) SACR 579
(A}, at page 583 E.
[18]
1969 (2) SA 537 (A).
[19]
1973 (3) SA 697
(A}, at 698 a.
[20]
2011 (2) SACR 153
(SCA}, in paragraph [22].
[21]
1975
(4)
SA 867
(A) at 873G- H.
[22]
1998 (2) SACR 213
(SCA) at 216g- j.
[23]
1999 (2) SACR 586
(SCA)
(2000 (1) SA 786
;
[2000] 1 All SA 229)
, at
paragraph 10."
[24]
1988 (3) SA 571 (A).
[25]
1987 (3) SA 717
(A).