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[2019] ZAECMHC 8
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Mgwadlanyana v S (CA80/18) [2019] ZAECMHC 8 (26 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
[Not
Reportable]
CASE
NO: CA80/18
Heard
on: 11/02/19
Delivered
on: 26/02/19
In
the matter between:
THOBILE
MGWADLANYANA
Appellant
and
THE
STATE
Respondent
APPEAL JUDGMENT
_________________________________________________________________
CORAM : Nhlangulela
DJP, Dawood J et Mbabane AJ
NHLANGULELA
DJP
[1]
This matter concerns an appeal against sentence. The issue for
decision is crisp,
namely whether the Judge
a
quo
(the sentencing court)
erred
in imposing a sentence of life imprisonment upon convicting the
Appellant for murder.
[2]
The provisions of Schedule 2 to the Criminal Law Amendment Act 105 of
1997 (the Act)
give two routes to be followed by a court in
sentencing for murder. In terms of Part 1 of Schedule 2, read
with s 51 (1)
of the Act, an accused is sentenced to undergo
imprisonment for life upon conviction for: (i) murder that was
planned or
premeditated (ii) killing a law enforcement officer;
(iii) killing a witness or potential witness; (iv) killing in the
course
of committing rape; (v) killing in the course of committing
robbery with aggravating circumstances (vi) killing in furtherance of
a common purpose or conspiracy (vii) killing involving unlawful
removal of any body part of the victim; and (viii) killing that
is
motivated by witchcraft. However, in terms of Part II of the
same Schedule 2, read with s 51 (2) of the Act, murder committed
in
the circumstances other than those referred to in Part 1 is punished
by a sentence of 15 years imprisonment if the accused is
a first
offender; 20 years if the accused is a second offender; and 25 years
if the accused is a third or subsequent offender.
The sentences
prescribed in ss 51 (1) and 51 (2) are mandatory. In terms of s
51 (3) of the Act, a lesser sentence is imposed
if substantial and
compelling circumstances exist which justify the imposition of such
sentence. Whereas the Act makes the
discretionary power of the
sentencing court a lever to be used in deciding upon a lesser and
appropriate sentence to impose, such
lever of control is absent where
it is found that substantial and compelling circumstances do not
exist. The classical case
of
S v Malgas
2001 (1) SACR 469
(SCA) is a point of
references in this regard.
[3]
In this case the Appellant was indicted on four counts of attempted
murder, murder,
rape and robbery with aggravating circumstances; it
being alleged that during the night of 19 May 2015 and at Mkhuthukeni
Locality,
Mqanduli, the victims in count 1 (attempted murder), a man,
and a victim in count 2 (murder), a woman, met the Appellant who
shone
a torch in their faces and struck the victim in count 1 with a
knife in the chest. Thereafter, the Appellant pursued the
victim in count 2 who had fled the scene. The victim in count 1
later on ascertained that his companion had been raped, robbed
of her
belongings and stabbed to death by the Appellant. The victim in
count 1 survived. He testified at the
trial.
[4]
At the end of the State’s case the Appellant was discharged in
respect of the
counts of rape and robbery in terms of
s 174
of the
Criminal Procedure Act 51 of 1977
. As at that point the
dropping of the offences of rape and robbery, which had all along
defined the crime of murder under
Part 1
of Schedule 2 to the Act,
changed the definition of murder to become the offence as defined in
Part II. At the conclusion
of the trial the commission of
murder as defined in Part II, read with s 51 (2) of the Act, was
proved by the evidence whereafter
the trial court returned a verdict
of guilty accordingly. However, in sentencing the Appellant the
court mistakenly imposed
a sentence of life imprisonment in terms of
s 51 (1) of the Act. Before this Court, counsel for both
parties were in agreement
that the sentence of life imprisonment was
imposed in error. To the extent of the error being a
misdirection on the part
of the sentencing court, which was conceded
even during the application for leave to appeal, interference with
the sentence of
life imprisonment imposed is warranted – see:
S
v Malgas supra,
at page 478 d-h.
[5]
Based on the agreement as aforementioned, counsel for the Appellant
took the stance
that it was not necessary to pursue the ground of
appeal that since substantial and compelling circumstances were
present, thus
a deviation from imposition of a mandatory sentence of
15 years imprisonment as provided in s 51 (2) (a)(i) of the Act was
warranted.
That stance was well taken due to the findings by
the sentencing court that: the accused is 29 years of age, he is
single
but has two children, he was employed and earned R1 400,00
per month, he had to maintain his children and his four younger
siblings, and he had been in custody for approximately thirty-two
months awaiting trial. The sentencing court did not take
into
account that the Appellant killed the deceased out of jealousy as the
deceased, his girlfriend, had been in the company of
another man.
Since the Appellant failed to testify in mitigation of sentences, the
sentencing court found that the offence
of murder has not been proved
to be a crime of passion. The Appellant did not show remorse
for his criminal conduct.
The Appellant had a previous
conviction of culpable homicide, which was committed just one year
before he committed the offences
in this matter in 2015. The
brutal manner in which the Appellant committed the offences in this
matter was taken into account.
I am in agreement with the
concluding remarks of the sentencing court, which read:
“
In all these
circumstances, I am compelled to find that there are no substantial
and compelling circumstances as regards the murder
count. As
regards the fact that the accused has spent almost three years in
custody awaiting trial, this must be taken into
account at the time
when the accused is considered for parole.”
[6]
The Court was urged by counsel for the Appellant to cause the
sentence of 10 years
imprisonment imposed for the attempted murder
conviction to run concurrently with the sentence of 15 years
imprisonment simply
because the sentencing court had done the same
when it imposed a sentence of life imprisonment. Counsel for
the State argued
otherwise, contending that the two offences are
separate and that each was proved during trial to be extremely
violent and egregious
such as to warrant imposition of severe
sentences; more particularly in that the Appellant, stabbed with a
knife the male victim
on the count of attempted murder to subdue and
prevent him from protecting the female victim. Thereafter, the
Appellant chased
after the female victim as she was running away to a
place of safety, accosted and stabbed her to death. Both
victims were
defenceless at the time when they were attacked and
stabbed by the Appellant. The medical evidence shows that the
female
victim, aged 28 years, was stabbed in the neck, the blow that
penetrated and injured the carotid vessels and causing severe blood
loss and massive haemothorax. The male victim was struck on the
chest, not so far away from the heart, but he survived death
by a
stroke of luck. In my view those are the
aggravating factors of the crimes that do not deserve mercy.
The aggravated circumstances of the offences far out-weigh the
mitigating circumstances of the Appellant. For those reasons
justice will be served by sentences that run consecutively.
[7]
In the result the sentences imposed by the sentencing court are set
aside and replaced
with the following new sentences:
1.
In Count 1 (attempted murder): the
Appellant to undergo imprisonment for a period of 10 (ten) years.
2.
In Count 2 (murder): the Appellant to
undergo imprisonment for a period of 15 (fifteen) years.
3.
The sentences of 10 and 15 years
imprisonment shall run consecutively.
4.
Effectively, the Appellant to undergo 25 (twenty-five) years
imprisonment; which is ante-dated to 10 March 2018.
Z.
M. NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
MTHATHA
I
agree:
________________________________________________
F.B.A.
DAWOOD
JUDGE
OF THE HIGH COURT
I
agree:
________________________________________________
S.M.
MBABANE
ACTING
JUDGE OF THE HIGH COURT
Attorney
for the appellant :
Mr A.A. Nohiya
c/o Legal Aid South
Africa
MTHATHA.
Counsel
the respondent
:
Adv. A.
Govender
:
Director of Public Prosecutions
MTHATHA.