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[2019] ZAFSHC 156
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Setlhako v S (A240/2018) [2019] ZAFSHC 156 (19 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A240/2018
In
the matter between:
KEKELETSO
JOSEPH
SETLHAKO
Appellant
and
THE
STATE
Respondent
CORAM: MHLAMBI J,
et
MOLITSOANE, J
HEARD ON:
09 SEPTEMBER 2019
DELIVERED
ON:
19 SEPTEMBER 2019
MHLAMBI,
J
[1]
The appellant was convicted on a charge of murder in the regional
court, Welkom and sentenced to 15 years’ imprisonment.
[2]
On 10 May 2018 the trial court granted the appellant leave to appeal
against the imposed sentence. The appellant’s grounds
of appeal
are summarized as follows:
1. The term of 15 years’
imprisonment is shockingly inappropriate;
2. The court erred in
finding that no substantial and compelling circumstances existed.
[3]
In amplification of the grounds of appeal, it was submitted on behalf
of the appellant that the following circumstances were
sufficient for
the court to deviate from the prescribed sentence:
1. Both the deceased and
the appellant consumed alcohol on the day of the incident;
2. There was provocation
as there was an altercation between the parties and that the murder
was therefore not planned;
3. The abovementioned
factors, together with the appellant’s personal circumstances,
cumulatively as well as individually,
were sufficient for a court to
deviate from the sentence it imposed;
4. Even though the
appellant had a previous conviction for assault with intent to commit
grievous bodily harm, it was committed
3 years ago during March 2009.
[4]
The appellant’s personal circumstances were crafted as follows:
1. His was 29 years old,
worked as a farm hand and earned an income of R 1 500.00 per
month;
2. He highest scholastic
qualification is standard 10;
3. He was married with 2
children, aged 5 and 3 years;
4. His wife was
unemployed and he was the sole breadwinner;
6. He had previous a
conviction of assault with intent to do grievous bodily harm and was
sentenced to 6 months’ imprisonment
during 2012;
7. Both the deceased and
the appellant consumed alcohol on the day of the incident.
[5]
The state opposed the application and submitted that the appellant’s
personal circumstances, whether individually or cumulatively
taken,
did not constitute compelling and substantial circumstances to enable
the court to deviate from the prescribed minimum sentence.
It is
trite to law that the appeal court will only interfere with sentence
if it is of the opinion that such sentence is unreasonable,
unjust or
that the trial court had misdirected itself.
[6]
Relying on
State
vs. Malgas
[1]
,
the state submitted that a court exercising appeal jurisdiction,
cannot, in the absence of material misdirection by the trial
court,
approach the question of sentence as if it were the trial court and
then substitute the sentence arrived at by it simply
because it
prefers it. To do so would be to usurp the sentencing discretion of
the trial court. The appellant’s conduct of
stabbing the
deceased was uncalled for and unjustified as indicated by the
appellant’s own concession.
[7]
In its judgment, the trial court stated that sentences listed in the
minimum sentence legislation should not be departed from
for flimsy
reasons. The factors that were traditionally relevant to sentencing
still played a role. The cumulative effect of the
said factors must
be such that they constitute substantial and compelling circumstances
to justify a departure from the prescribed
sentences. The court then
proceeded to tabulate the traditional factors that it took into
account.
[8]
The trial court found that there was evidence which indicated that
both the deceased and the appellant belonged to rival gangs
which
fought each other on a regular basis. On the day in question, the
appellant and the deceased had consumed liquor at the tavern.
The
deceased had left the tavern complaining that a member of the
opposing gang had taken his beer. The appellant followed the
deceased
outside the tavern while the appellant had a knife in his possession.
The deceased got hold of a knife, they then approached
each other and
the appellant ultimately stabbed the deceased. Both had ample time to
walk away from the situation but both failed
to do so with fatal
results.
[9]
Ms Kruger, on behalf of the appellant, referred me to
State
vs. PB
[2]
where it was
stated:
“
The approach to
an appeal on sentence imposed in terms of the Act should, in my view,
be different to an approach to other sentences
imposed under the
ordinary sentencing regime. This, in my view, is so because the
minimum sentences to be imposed are ordained
by the Act. They cannot
be departed from lightly or for flimsy reasons. It follows therefor
that a proper enquiry on appeal is
whether the facts which were
considered by the sentencing court are substantial and compelling, or
not.”
The
thrust of the argument that the court should have deviated from the
imposition of the prescribed sentences is based on two factors,
namely, that both the deceased and the appellant had consumed alcohol
and that there was provocation.
[10]
Parts of the appellant’s testimony in chief read as follows
[3]
:
“
Were you under
the influence of liquor on that particular day sir? ---Your Worship I
was not that drunk Your Worship.
So, was it necessary
for you to stab the deceased? --- It was not necessary.
Who do you say that,
you say to the Court that it was not necessary, why do you say that,
sir was it necessary for you to stab the
deceased on that particular
day?--- It was not necessary.
Why did you stab him?
--- I was defending myself Your Worship because I realised he will
end up stabbing me.
You defended
yourself? --- Yes.
You stabbed him
because of what sir, just tell the Court, sir at that point when you
stabbed him, why did you stab him? --- I saw
him Your Worship having
a knife Your Worship stabbing me.
Between the two of
you who stabbed first? --- I am the one who stabbed first because I
blocked.
Then you saw
necessary for you to stab two times? --- It was not necessary because
I saw (indistinct) to stab this person.
Sir why did you stab
the deceased, it is simple, what was he doing that made you stab him
sir? --- He was robbing my friend Your
Worship.
Sir leave the
robbing, we are now with the deceased, the two of you, what was he
doing sir? --- For me to stab him Your Worship
is he started stabbing
me.
Meaning you saw that
this person is fighting, is that correct? I saw him fighting me.
Because
he stabbed you? – Yes.”
[11]
During cross-examination, the appellant contradicted himself to such
an extent that nowhere on the evidence can it be said
that he was
provoked during the incident. It is therefore evident that on his own
version, he was the aggressor nor was it necessary
for him to stab
the deceased.
[12]
I am consequently of the view that the trial court was correct in
finding that there were no substantial and compelling circumstance
that justified the deviation from the imposition of the prescribed
minimum period of imprisonment. Furthermore, I find that there
was no
misdirection or irregularity on the part of the trial court for this
court to interfere with the sentence imposed and that
the proceedings
were in accordance with justice.
[13]
The following order is made:
Order:
1.
The appeal against sentence is dismissed.
2.
The sentence is confirmed.
____________
MHLAMBI,
J
I
concur,
______________
MOLITSOANE,
J
Counsel
for the Appellant: Ms S Kruger
Instructed
by: Legal Aid South Africa
Southern
Life Plaza Building
1
st
Floor, South Wing
41
Charlotte Maxeke Street
Bloemfontein
Counsel
for Respondents: Adv.
Instructed
by: The Director of Public Prosecutions
Ground
Floor
Waterfall
Building
C/O
Aliwal & St Andrew Street
Bloemfontein
[1]
2001 (1) SACR 469 (SCA)
[2]
2013 (2) SACR 533
SCA para 20
[3]
Page 61 line 24