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[2018] ZAGPPHC 43
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Mosehla v S (A467/2017) [2018] ZAGPPHC 43; [2018] 2 All SA 745 (GP) (16 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: A467/2017
Date:16/3/2018
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
SILAS
MATHEE M
OSEHLA
APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
PRETORIUS
J,
(1)
This is an appeal against sentence imposed by Kgomo J on 13 May
2010. Leave to appeal was granted by the court
a quo
on
18 November 2016 as follows:
"1. Leave
to appeal the conviction is refused;
2.
Leave to appeal the sentence is granted especially to determine
whether the additional 12 years should not be served concurrently
with the life sentence imposed."
INTRODUCTION:
(2)
The appellant was arraigned in the High Court in Middelburg on one
count of murder, one count of housebreaking
with the intent to rob
and robbery with aggravating circumstances, one count of unlawful
possession of a firearm in contravention
of Section 3 of Act 60 of
2000 and one count of unlawful possession of ammunition in
contravention of Section 90 of Act 60 of 2000.
The appellant was the
second accused in the court
a quo
and was convicted on 13 May
2010.
(3)
The appellant was sentenced to life imprisonment on count 1, twelve
years' imprisonment on count 2, five years'
imprisonment on count 3
and one year's imprisonment on count 4. The sentences on count 3 and
4 were ordered to run concurrently
with the sentence on count 1. The
appellant was declared unfit to possess a firearm.
(4)
The appellant was legally represented throughout the proceedings.
BACKGROUND:
(5)
The evidence in the court a
quo
was that on 11 January 2007
the appellant, and his co-accused, together with the witness Mr
Mosehla, who was a witness in terms
of Section 204 of Act 51 of 1977,
went to a farm at Roosseneka,l which had an electrified perimeter
fence. They breached the fence
by removing a big rock and crawled
underneath the fence. They reached the farm house. A crowbar, which
they had brought along,
was used to open the locked door of the farm
house. At the time they left home the second accused, the present
appellant, was armed
with a handgun.
(6) According
to the deceased's wife, Mrs Breedt, who was 80 years old when
testifying, she and her husband were having
lunch under a tree
between 12h00 and 13h00 on 11 January 2007 when they saw two men
walking along the perimeter fence. After lunch
they went into the
house and she locked the front door and went to the bedroom. She saw
the one man she had seen earlier walking
outside the perimeter fence,
in the house. He grabbed her, pushed her against the wall and told
her to shut up. The deceased came
to her, enquiring what was wrong.
She saw behind the deceased, the other man she had seen walking
previously, with an iron bar
in his hand. He hit the deceased on the
head with the iron bar. The deceased fell down and was hit once more
with the iron bar.
The whole time the perpetrators were
screaming at her and the deceased "where is the money?" She
handed the safe keys
to the perpetrators. They removed three rifles,
as well as a revolver and money, knives and other valuables from the
safe. The
deceased was tied onto a chair with telephone cables and a
piece of curtain was stuffed into his mouth and he was left in the
bathroom.
She suffered a similar fate in the kitchen, where she was
tied to a chair. Both men went back into the bathroom, where her
husband
was. She heard them threatening him again, asking once more
for money and then she heard a gunshot. They came to her and told her
that they had shot her husband. She heard them removing items from
the house and loading it onto the Nissan bakkie, after she had
told
them to use the Nissan bakkie, as they could not get the other bakkie
to start.
(7)
After some time she cut herself loose, when realising that the
perpetrators had left. She took a blanket and ran out of
the house at
approximately 21h30. She sat under a tree until the next morning when
she was rescued by the farmworkers. She never
returned to the farm.
(8)
The court a
quo
dealt with all the evidence and found that
through the doctrine of common purpose both the appellant and his
co-accused were guilty
as set out above.
SENTENCE:
(9)
The court a
quo
dealt with the sentencing and found that the
appellant had been convicted of extremely serious crimes. The
commission of the crimes
were premeditated as the appellant and his
co-accused had travelled from Ga Mogashoa to Roossenekal to execute
their plan, armed
with a crowbar and a revolver. The court
a quo
found that the appellant and his co-accused had chosen very old
people, aged 78 and 80 years respectively, as their victims. The
court found their actions to be cruel and inhuman.(10) According
to the appellant's counsel the court a
quo
misdirected itself
in finding that the murder of the deceased was premeditated. Mrs
Breedt's evidence was that the appellant
and his co-accused were
armed. Her evidence was that she and the deceased had been threatened
throughout by the appellant and his
co-accused that they would be
killed if they did not provide the money. There was no reason to kill
the deceased, as he had been
tied to a chair and had been prevented
from screaming by stuffing a piece of curtain into his mouth. This
court cannot find that
the court a
quo
was wrong in finding
that the murder was premeditated and committed in cold blood. The
facts speak for themselves.
(11)
The
appellant did not testify in mitigation of sentence and the court
found that the appellant showed no remorse at all. See
S
v Matyityi
[1]
where
Ponnan JA.found:
"There
is, moreover,
a
chasm between regret and remorse. Many accused
persons might well regret their conduct but that does not without
more translate
to genuine remorse. Remorse is
a
gnawing pain
of conscience for the plight of another. Thus genuine contrition can
only come from an appreciation and acknowledgement
of the extent of
one's error. Whether the offender is sincerely remorseful and not
simply feeling sorry for himself or herself
at having been caught is
a factual question. It is to the surrounding actions of the accused
rather than what he says in court
that one should rather look. In
order for the remorse to be
a
valid consideration, the
penitence must be sincere and the accused must take the court fully
into his or her confidence."
(12)
In
the present instance the finding by Nugent JA in
S
v Swart
[2]
is
apposite:
"What
appears from those cases is that in our law retribution and
deterrence are proper purposes of punishment and they must
be
accorded due weight in any sentence that is imposed. Each of the
elements of punishment is not required to be accorded equal
weight,
but instead proper weight must be accorded to each according to
the circumstances. Serious crimes will usually require
that
retribution and deterrence should come to the fore and that the
rehabilitation of the offender will consequently play
a
relatively smaller role."
(13)
In
S
v Vilakazi
[3]
Nugent
JA held:
''In
cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background.
Once it
becomes clear that the crime is deserving of
a
substantial
period of imprisonment the questions whether the accused is married
or single , whether he has two children or three,
whether or not he
is in employment, are in themselves largely immaterial to what that
period should be, and those
seem
to me to be the kind of
'flimsy' grounds that Ma/gas said should be avoided."
(14)
In the present appeal there were numerous aggravating circumstances
which justified the imposition of a life sentence.
The court a
quo
had dealt with all the mitigating and aggravating facts and there
was no misdirection by the court when imposing a life sentence.
(15)
Section
39(2) of the
Correctional
Services Act
[4]
provides:
"(2)
(a) Subject to the provisions of paragraph (b), a person who receives
more than one sentence of incarceration or receives
additional
sentences while serving
a
term
of incarceration, must serve each such sentence, the one after the
expiration, setting aside or remission of the other, in
such order as
the National Commissioner may determine, unless the court
specifically directs otherwise, or unless the court directs
that such
sentences shall run concurrently but-
(i)
any determinate sentence of incarceration to be served by any
person runs concurrently with a life sentence or with sentence of
incarceration to be served by such person in consequence of being
declared an habitual criminal or a dangerous criminal;"
(16)
In
S
v Mashava
[5]
it
was held:
"The
provision is clear. Any determinate sentence of incarceration,
imposed in addition to life imprisonment, is subsumed by
the latter.
This is logical and practical. A person only has one life and a
sentence of life imprisonment is the ultimate penal
provision.
Section 39(2)(ii) provides for more than one life sentence imposed on
a
person
also to run concurrently. The effect of section 39(2)(a)(i) is that
the order by the court below, that the sentence are not
ordered to
run
concurrently,
is liable to be set aside.
(17)
It is thus clear that the sentences on counts 2, 3 and 4 will
automatically run concurrently with the sentence
of life
imprisonment.
(18)
In the result the following order is made:
1.
The appeal against sentence succeeds as follows: 1.1The sentences on
counts 1, 3 and 4 are confirmed;
1.2
The sentence on count 2 is confirmed, but it is ordered that it will
run concurrently with the sentence of life imprisonment
imposed on
the appellant.
Judge
C Pretorius
I
agree.
Judge
J Raulinga
I
agree.
Case
number
: A467/2017
Matter
heard on
: 2 March 2018
For
the Appellant
Adv JL Kgokane
Instructed
by
: Legal Aid South
Africa
For
the Respondent : Adv CP Harmzen
Instructed
by
: Director of Public Prosecutions
Date
of Judgment
[1]
2011(1)
SACR 40 {SCA) at paragraph 13
2004(2)
SACR 370 (SCA) at 378
[3]
2009(1)
SACR 552 (SCA) at paragraph 58
[4]
Act
111 of 1998
[5]
2014(1)
SACR 541 (SCA) at paragraph
7