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[2018] ZAFSHC 26
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Ngqelengqelele v S (A204/2017) [2018] ZAFSHC 26 (22 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No.: A204/2017
In the
appeal between:
AYANDA
BAREND
NGQELENGQELELE
Appellant
And
THE
STATE
Respondent
CORAM:
MATHEBULA Jet MURRAY
AJ
JUDGMENT
BY:
MATHEBULA,
J
HEARD
ON:
11
DECEMBER
2017
DELIVERED
ON:
22 FEBRUARY
2018
[1] On
6 April 2011, the appellant was convicted in the regional court
sitting in
Bloemfontein on the charge of murder. He was sentenced to
fifteen (15) years imprisonment. In terms of Section 103 of Act 60 of
2000 he was declared unfit to possess a firearm. The court a
quo
granted him leave to appeal against both conviction and sentence.
[2] At
the onset of the trial the appellant pleaded not guilty and denied
all allegations
against him. The chain evidence was admitted relating
to the identity of the deceased, the cause of death as contained in
the post
mortem report and the photo album compiled by the police
service.
[3] The
version of the state was narrated by five witnesses namely Israel
Mhlabahlaba,
Mamokete Nkemele, Calesile Dumbela and Ntomani Monyake.
They all testified that on 10 August 2007 there was a domestic
dispute
between the appellant and his wife. The appellant did not
permit his wife and children to enter the marital home and use the
bathroom.
In the bathroom the body of the deceased was found on the
floor and covered with a blanket. It had multiple stab wounds. A
bloodstained
pick was found in the main bedroom. The alleged murder
weapon was handed to the police by Mamokete. Israel Mhlabahlaba
testified
that he had a conversation with the appellant who informed
him that he had killed a person. On arrival at his house the police
found it not only in disarray but they made a grisly discovery. It
appears that from his conduct the accused was attempting to prevent
his wife and the police to enter the house. It was as if he was
hiding something. None of the witnesses testified that they saw
the
appellant assaulting the deceased. According to Mamokete loud music
was heard emanating from the house of the appellant on
the days prior
to the day the body of the deceased was found in his house.
[4]
The
appellant testified that he was innocent and does not have any
knowledge
about
the
reasons
or
circumstances
that
led
to
the
death of the deceased. He parted with the deceased alive in jovial
mood
accompanied
by
two
(2)
unknown
persons.
He
went to look for his wife and left the house
unlocked. His search for her
was
unsuccessful and
he
drank liquor at
a
tavern
until
late
at
night.
On arrival at
home he
continued
drinking and
slumped on the
sofa and
fell
asleep. There was no sign of
the
decease
d
.
[5] In
the morning he drank some beer and felt nauseous. He went to the
bathroom. He opened
the door and felt that there was something behind
it preventing the door to open. On further investigation he saw a
person lying
on the floor. He tried to awake him but he did not
respond. He called the deceased on his cell phone and it rang on the
body. He
discovered that he was dead. This shocked him and he relayed
his discovery to Mhlabahlaba. At no stage did he make any confession
about his involvement in the murder. While they were in conversation
with each other, his wife and children entered the house.
The wife
became hysterical and summoned the police. His explanation about the
alleged murder weapon was that it was used to slaughter
chickens and
that the bucket found in the main bedroom full of blood was chicken
not human blood.
[6] The
court
a quo
rejected the version of the appellant and accepted
that of the state witnesses. The court a
quo
relied on
circumstantial evidence and drew the inference that the appellant
murdered the deceased. The court a
quo
referred to the state
of disarray, bloodstains all over the walls and furniture and the
many versions proffered by the appellant.
At some stage he even
hinted that the police were complicit in the commission of the
offence. Furthermore, his conduct during the
conversation with
Mamokete and Monyake did not resemble that of the person that made a
startling discovery of a corpse in his house.
I am of the view that
the court a
quo
did not err in finding the appellant guilty as
charged. The respondent proved its case beyond reasonable doubt.
[7]
The
next aspect to be considered is the issue of sentence. It is trite
and this court has repeatedly held that sentencing is pre
eminently the prerogative of the trial court.
[1]
A court of appeal
will
only
interfere
with any
sentence in
limited
circumstances.
[2]
[8] In
this matter the deceased was stabbed with a sharp object and the
cause of death
was recorded as multiple sharp injuries. The State
Pathologist recorded twenty three (23) notes of serious injuries.
This means
that he was vigorously and relentlessly attacked. This is
consistent with proven facts that there was blood spluttered all over
the house. He must have bled profusely and suffered immensely in the
process of losing his life. The appellant also took positive
steps to
conceal his callous act and did not show any remorse.
[9]
The
court a
quo
took
into consideration that he was a first offender, gainfully employed
with a wife and children. The court in
assessing all
the
potential mitigating
personal factors as well as the shocking and revolting nature of the
murder and the extent to which the deceased
must have suffered
evidently concluded that there were no substantial and compelling
circumstances
justifying
a deviation from the provisions of Section 51 of the Criminal Law
Amendment Act 105 of 1977. Relying on the approach
adopted in Malgas
case.
[3]
the court a
quo
proceeded to impose
the applicable minimum sentence of
fifteen (15) years.
[10]
The court a
quo
was correct. The taking of life is abhorrent
in a democratic society like ours. Sentence must achieve its primary
objective which
is retribution, rehabilitation, deterrence and the
prevention of the crime. I am not convinced that I am at liberty to
interfere
with the sentence imposed by the court a
quo.
This
appeal ought to fail.
[11]
Accordingly I make
the
following order:-
11.1
The appeal against both conviction and
sentence
is dismissed
M.A. MATHEBULA, J
I
concur.
H. MURRAY, AJ
On
behalf of the appellants: Adv.
S Kruger
Instructed
by: Justice
Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv.
M Sekoena
Instructed
by: Director: Public
Prosecutions
BLOEMFONTEIN
[1]
S v Kumalo
1973 (3) SA 697
(A) at 698 B·C
[2]
S v Pieters
1987 (3) SA 717
(A) at 728 B· C
[3]
S v Malgas
2001 (3) All SA 220
(A)