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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2019] ZAKZPHC 15
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Khumalo v S (AR42/2012) [2019] ZAKZPHC 15 (11 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL DIVISION, PIETERMARITZBURG
Case
No: AR42/2012
In
the matter between:
JACKSON
THAMSANQA KHUMALO
APPELLANT
and
THE
STATE
RESPONDENT
Coram
:
Poyo
Dlwati J (Koen Jet Ntshulana AJ concurring)
Heard
:
01
February 2019
Delivered
:
11
February 2019
ORDER
(a)
Eight years of the sentence on counts 1 and 2 and the whole of the
sentence on counts 6 and 7 are ordered to run concurrently
with the
sentences in counts 4 and 5. The cumulative effect of these sentences
will be 30 years' imprisonment. Further it is directed
that the
sentence of 20 year's imprisonment imposed by the Regional Court on
20 March 2008 under case no.223/06 shall run concurrently
with the
above sentence. These directions are antedated to 4 April 2008.
JUDGMENT
Poyo
Dlwati J:
[1]
This
is an appeal against the cumulative effect of sentences imposed on
the appellant by Swain
J
on
4 April 2008. The issue arose after the appellant successfully
appealed against his murder conviction which carried a sentence
of
imprisonment for life which had the effect that the other sentences
would then have to be served consecutively.
[2]
On
4 April 2008, the appellant was convicted of conspiracy to commit
robbery with aggravating circumstances (count 1), robbery with
aggravating circumstances (count 2) and the murder of Cornelius
Marthinus De Wit (count 3). All these offences were perpetrated
on 27
October 2003. In addition, the appellant was also convicted of
conspiracy to commit robbery with aggravating circumstances
(count
4), robbery with aggravating circumstances (count 5) and; kidnapping
(counts 6 and 7). The latter offences were perpetrated
on 20
September 2004.
[3]
In
respect of counts 1 and 2, the appellant was sentenced to 18 years'
imprisonment. In respect of count 3, he was sentenced to
life
imprisonment. In respect of counts 4 and 5, he was sentenced to 20
years' imprisonment. In respect of counts 6 and 7, he was
sentenced
to five years' imprisonment for each count. On 21 September 2012, the
appellant successfully appealed against his conviction
of murder
(count 3) and thereby the sentence of life imprisonment fell away.
[7]
The
sentences imposed therefore should still reflect the balance between
the appellant's personal circumstances, the seriousness
of the
offences and the interests of society. In the end, the sentence must
suit the offence and the offender and must still serve
as a deterrent
to the appellant and other would-be offenders. In my view, an
effective sentence of 30 years' imprisonment will
serve this purpose.
It will also achieve the equilibrium sought to be met in sentence
proceedings.
Order
[8]
In
the result, the following order in proposed:
(a)
Eight years of the sentence on counts 1 and 2 and the whole of the
sentence on counts 6 and 7 are ordered to run concurrently
with the
sentences in counts 4 and 5. The cumulative effect of these sentences
will be 30 years' imprisonment. Further it is directed
that the
sentence of 20 year's imprisonment imposed by the Regional Court on
20 March 2008 under case no.223/06 shall run concurrently
with the
above sentence. These directions are antedated to 4 April 2008.
Poyo
Dlwati J
Ntshulana
AJ
Koen
J
APPEARANCES
Date
of Hearing
:
01
February 2019
Date
of Judgment
:
11
February 2019
Counsel
for Appellant
:
Mr S
Matthews
Instructed
by
: Silvia
Da Silva Attorneys
Counsel
Respondent
:
Ms A
Watt
Instructed
by
:
Director of Public Prosecution PMB