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[2018] ZAFSHC 14
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Ntoyana v S (A228/17) [2018] ZAFSHC 14 (8 March 2018)
IN THE HIGH COURT OF SOUTH
AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal No: A228/17
In the appeal of:
OLIPHANT
NTOYANA
Appellant
and
THE
STATE
Respondent
HEARD
ON
:
11 DECEMBER 2017
CORAM
:
MATHEBULA, J
et
MURRAY, AJ
JUDGMENT
BY
:
MURRAY AJ
DELIVERED
ON:
8 MARCH 2018
[1]
The Appellant appeals against the
Sentence imposed on him by Regional Court Magistrate B T Ludidi on 23
September 2014. He was convicted
on Count 1 of Culpable Homicide and
sentenced to 12 years' imprisonment, and on Count 2 of Attempted
Murder and sentenced to 8
years' imprisonment. The court
a
quo
did not order the sentences to
run concurrently.
[2]
The State indicated that it did not
support the imposed sentence and submitted that the appeal against
sentence should be upheld.
Mr P L van der Merwe appeared for the
Appellant and Adv C Z Nameka for the State.
[3]
The Appellant was charged with Murder
(read with the provisions of
Section 51
of the
Criminal Law Amendment
Act 105 of 1997
) in that on or about 6 November 201O at Masilo,
Theunissen he unlawfully and intentionally killed
Mathe
Martha Putswenyane
by stabbing her
with a knife or similar object (Count 1), but was instead convicted
of Culpable Homicide. He was, furthermore, charged
with Attempted
Murder in that on the same date also at Masilo, Theunissen, he
unlawfully and intentionally attempted to kill
Mohapi
Ntuleng
by stabbing him with a knife
(Count 2), and was convicted accordingly.
[4]
The
Appellant was arrested on 6 November 2010, first appeared in the
Regional Court Theunissen on 28 April 2011, went on trial on
25
October 2011 and was finally convicted and sentenced on 23 September
2014.
[5]
The
Appellant insisted on conducting his own defence and refused the
assistance of the various attorneys from Legal Aid South Africa
who
were present in Court and ready to assist him at any given time
during the trial. He also refused the assistance of assessors.
Since
he was not legally represented, the Court
a
quo
with commendable patience
explained to him his legal rights and the implications of the
different steps throughout the trial, including
the possibility of
being convicted on one of the competent verdicts of Culpable Homicide
or Attempted Murder.
[6]
The
Appellant pleaded not guilty to both charges and did not provide a
plea explanation.
[7]
The
first witness was the victim of the attempted murder, M F Ntuleng,
who worked as a security guard at the Blue Moon Tavern where
the
offences were committed. He testified that the Appellant and two
other persons, Daza and Bennet, during the evening of 6 November
2010
tried to enter the tavern. When he searched them, he found an Okapi
knife in the Appellant's possession, a 'press button'
knife
('flick-knife') in Doza's possession, and a pair of scissors in
Bennet's possession. He confiscated the weapons and the three
entered
the tavern where they bought a quart of Black Label beer which they
came and drank outside.
[8]
When
they left, Ntuleng refused to allow the Appellant to take the empty
beer bottle with him, but did return their weapons to the
three of
them. A short while later they were back and refused to allow Ntuleng
to search them again. The Appellant opened the Okapi
knife and
threatened to stab Ntuleng. Ntuleng saw Bennet handing the Appellant
a pair of wrapped scissors. The Appellant held them
in his right hand
while he threatened Ntuleng.
[9]
A
female security guard, Motsidisi, stepped between them in an attempt
to stop the Appellant from stabbing Ntuleng who was carrying
a crate
of beer into the tavern. The Appellant pushed the person between him
and Ntuleng out of the way and managed to stab Ntuleng
in his left
side on his ribs, inflicting an open wound which had to be closed
with four stitches and which landed Ntuleng in the
hospital. When the
Appellant tried to stab Ntuleng with the scissors for a second time,
the latter leaned against a pillar, and
instead of stabbing him, the
Appellant fatally stabbed Ms Putswenyane who passed away that same
evening. Ntuleng witnessed and
described the second stabbing.
[10]
The pathologist, Dr Nieuwoudt, testified that the Appellant struck Ms
Putswenyane in the right upper
arm with the 24cm scissors with such
force that it left a 44 cm long open wound which extended upwards
deep into her upper arm,
cutting both the brachial artery and the
vein which carried the main blood supply to the arm. That led to
excessive blood loss
and her death of exsanguination, and resulted in
the Appellant's conviction of Culpable Homicide instead of Murder.
[11]
I
am satisfied that the trial was properly conducted, that the
Appellant was properly assisted by the Presiding Officer and that
the
convictions were in accordance with the facts and in accordance with
justice. The convictions are therefore confirmed.
[12]
The
Appellant admitted several previous convictions for crimes involving
violence. His application for leave to appeal against both
conviction
and sentence was dismissed on 12 July 2016. A petition for leave to
appeal against his sentence only was granted 26
April 2017, however.
[13]
The
grounds on which the Appellant relies for the appeal are:
13.1
That
the Court
a quo
erred
in overemphasising the gravity of the offence and the interest of the
community at the expense of the Appellant's personal
circumstances;
13.2
That
the Court
a quo
failed
to properly take into account the mitigation factors while
overemphasising the aggravating circumstances;
13.3
That
the sentence is shockingly inappropriate and induces a sense of
shock; and
13.4
That
the Court erred in not ordering the sentences on Counts 1 and 2 to
run concurrently.
[14]
It
is trite law that punishment is pre-eminently a matter for discretion
of the trial court and that a Court of Appeal should be
careful not
to erode such discretion
(S
v Rabie
[1]
).
In
S
v Bogaards
[2]
the
Constitutional Court described a Court of Appeal's power to interfere
with sentences imposed by Lower Courts as follows:
"It
can only do so where there has been an irregularity that results in
the failure of justice; the Court below misdirected
itself to such an
extent that its decision on sentence is vitiated; or the sentence is
so disproportionate or shocking that no
reasonable Court could have
imposed it."
[15]
This
was echoed in
S
v Van Wyk and Another
[3]
where
the Supreme Court of Appeal stated that it has held that it would
interfere with sentences imposed by a Trial Court only where
the
degree of disparity between the sentence imposed by the Trial Court
and the sentence the Appeals Court would have imposed was
such that
interference was competent and required. But then, the Court
cautioned, the Appellate Court needed to have a definite
view as to
what sentence it would have imposed, even if it is only able to
identify a particular range within which it would have
imposed
sentence.
[4]
[16]
In
his Heads of Argument, Mr Van der Merwe submitted that the minimum
sentence for Murder is 15 years' imprisonment whereas the
Court
a
quo
found a 12-year sentence
appropriate for Culpable homicide, which reasoning appears to be
flawed, especially in view thereof that
the Appellant had already
spent four years awaiting trial.
[17]
I
agree with Adv Nameka for the State that the varying nature of
sentences imposed in cases of culpable homicide is indicative of
the
differing nature of the circumstances in each case and that the
Appellant's degree of blameworthiness is relevant in determining
which sentence is appropriate in these circumstances, as
explained
in
S
v Mtshiza
[5]
(See
also
S
v Machemo
[6]
,
S v Nkuna
[7]
)
.
[18]
In
my view the present case is indeed one in which there is a sufficient
degree of disparity between the sentence which the Court
a
quo
imposed and the one that this
Court of Appeal would have imposed, to justify interference. When
regard is had to all the facts of
the present case, the sentence of
12 years' imprisonment for a negligent act with an accidentally fatal
result, compared to the
8 years' imprisonment imposed for the
Attempted Murder which the Appellant committed intentionally, is
highly questionable.
[19]
The
Court
a
quo
provided
no reasons for the disparity in the two sentences in this case. And
as was stated in
S
v Madikane
[8]
and
also in
Itani
Thomas Mudau v S
[9]
:
"However,
in my view the learned Judge plainly over-emphasized the retributive
aspects of punishment at the expense of the
other considerations and
thus failed to strike an appropriate balance. Moreover, he imposed a
very disparate sentence in respect
of similar offences without
furnishing any reason for the difference. Absent of such explanation
for the disparity, a sentence
appears to be ill-considered and
arbitrary."
[20]
There
is no evidence that the Appellant had any intention to harm Ms
Putswnayane, although of course he created a dangerous situation
by
striking at Ntuleng with a 24cm long sharp pair of scissors in the
crowded tavern where he should have foreseen that he might
hit and
cause harm to someone other than Ntuleng, and wherein lies his
negligence. Having due regard to his moral blameworthiness
in that
accidental killing of an innocent bystander in my view 8 year's
imprisonment would be a fitting punishment for the negligent
killing
of Ms Putswenyane. It would be long enough not to be trivial and an
insult to her family or the community, yet reasonable
enough to still
allow the Appellant to be reintegrated into society once he has
served his term. In my view therefore a sentence
of 8 years'
imprisonment for the conviction on Culpable Homicide would be
appropriate, proportionate, and just in the circumstances
of this
case and would also remove the unexplained disparity between the two
sentences.
[21]
That,
of course, brings us to the Court
a
quo's
decision
not to order concurrency of the two sentences. Mr Van der Merwe
submitted that the Court
a
quo
erred
in not ordering the sentences to run concurrently since the crimes
were closely related in time and place and flowed from
the same
action. I agree. The cumulative effect of an effective 20 years'
imprisonment is simply so disproportionate as to be unreasonable
enough to justify
interference
by this Court.
(S
v Jimenez
[10]
and
S
v De Jager and Another
[11]
)
.
[22]
It
is trite law that the sentence of an accused person must be balanced
between the interests of society, the offence and the personal
circumstances of the accused
(S
v Banda and Others
[12]
).
.
That requires a careful weighing up of the mitigating circumstances
of the case against the aggravating factors. The Trial Court
is
expected not to just list the factors but to discuss the weight he
assigns to each in order to justify his decision to impose
a given
sentence.
[23]
The Court
a
quo
took into account as mitigating
factors the following personal circumstances of the Appellant: that
the Appellant was 47 years old
and had minor children who are staying
with their respective mothers; that the Appellant was a breadwinner;
and that the Appellant
spent four years in custody awaiting
finalisation of the trial.
[24]
The Court
a
quo
also took into consideration the
following aggravating circumstances: the numerous previous
convictions of the Appellant; the interests
of the community; and the
seriousness of the offence.
[25]
The Court
a quo
did not, however, explain what weight it
attached to the various factors and how those factors enabled him to
arrive at the two
sentences that he imposed, which does not assist
this Court of Appeal in assessing the Court
a quo's
reasoning.
It did state, though, that in imposing sentence the number of
previous convictions, even though not taken into account
for
sentencing, were an indication that the Accused did not learn from
the fact that he had been convicted and sentenced by the
Court.
[26]
The Court
a quo
stated,
furthermore, that the offences committed by the Accused are prevalent
in that division and that the community expects the
Court to impose
sentences that promote respect for the law and reflect the
seriousness of the offences committed, and that one
of its duties in
the imposition of sentence is to protect the society against the
Accused and other potential offenders.
[27]
The
Court
a quo
correctly
held that in the circumstances direct imprisonment would be
appropriate, just and proper and explicitly stated that it
aimed in
passing the sentences that it did, at ensuring that the Accused will
not commit similar offences in future and that they
would serve to
teach the Accused and other offenders to respect the rights of fellow
human beings in future.
[28]
Mr
van der Merwe, on the other hand, averred that the effective sentence
was so disproportionate because the Court
a
quo
erred in not attaching due
weight to the following two mitigating factors:
28.1
That
the Appellant had spent four years awaiting trial where the delay was
not due to his fault. He relied, in this regard, on
S
v Stephen and Another
[13]
where
Schultz J held that:
"Imprisonment
whilst awaiting trial is the equivalent of a sentence of twice that
length."
28.2
That
the Appellant had been a productive member of society who was
maintaining himself and his children before he was arrested in
this
matter.
[29]
Although
I agree that the lengthy period spent in custody awaiting
finalisation of the trial is a mitigating factor, I respectfully
agree with Satchwell J in
S
v Mahlangu and Others
[14]
that the hardship suffered due to that fact is but one of the
relevant factors the combined impact of which the Court
a
quo
had
to take into consideration to determine an appropriate sentence. I
agree that being incarcerated is a great hardship, especially
"where
one is not a serving prisoner but awaiting trial", but I agree,
too, that one should not blindly apply arithmetical
equivalents to
assume, for instance, that a 4-year awaiting trial period equals an
8-year sentenced prison
term
since "one does not know all the factors peculiar to each
awaiting-trial period".
[30]
The
State conceded that the cumulative sentence in this matter is severe
and shockingly inappropriate, warranting the interference
of this
Court. Adv Nameka conceded, furthermore, that the Court
a
quo
over-emphasized the seriousness
of the offence and under emphasized the interests of the
Appellant, and that the disparity
between the sentence imposed by the
Trial Court and that which a reasonable Court would have imposed was
sufficient to warrant
interference by the Court of Appeal.
[31]
In
argument the State submitted that the sentence for culpable homicide
should be reduced to 8 years to match the sentence of 8
years for
attempted murder and that these sentences should be ordered to run
concurrently and should be antedated to provide for
the four years
that the Appellant had already spent in prison awaiting trial.
[32]
I
agree with Mr Van der Merwe and with Ms Namaka that a sentence of 12
years' imprisonment for culpable homicide is excessive, especially
when compared to the 8 years imposed for attempted murder. In
reducing the 12 year sentence to one of 8 years the degree of moral
blameworthiness of the Appellant
regarding
the death of Ms Putswenyane is placed in the proper perspective.
[33]
I also agree that the Court
a
quo
should have ordered the
sentences on Counts 1 and 2 to run concurrently, especially in view
thereof that they stemmed from the same
conduct and occurred within
seconds of each other. By antedating the sentence to 12 July 2016,
the date on which the Appellant's
appeal against his sentence was
dismissed, provision is made for the lengthy period which the
Appellant has spent in custody already.
[34]
WHEREFORE
the following order is made:
1.
The convictions are confirmed.
2.
The appeal against sentence is upheld.
3.
The sentence of 12 years' imprisonment
on Count 1 is set aside and substituted with the following:
"The
Appellant is sentenced to 8 (eight) years' imprisonment on Count 1."
4.
The sentence of 8 (eight) years'
imprisonment on Count 2 is confirmed.
5.
The sentences imposed on Count 1 and
Count 2 are to be served concurrently and are to be antedated to 12
July 2016.
H. MURRAY, AJ
I concur and it is so ordered.
M. A. MATHEBULA, J
On behalf of the
Appellant:
Mr PL van der Merwe
instructed by:
Bloemfontein Justice Centre
2nd Floor - Southern Life Building
41 Charlotte Maxeke Street
BLOEMFONTEIN
On
behalf of the Respondent:
Adv C Z Nameka
Office of the Director of Public
Prosecutions: Free State
BLOEMFONTEIN
[1]
1975 (4) SA 855
(A) at 857 D - E
[2]
2013 (1) SACR 1
(CC)
[2012] (12) BCLR 1261
; [2012) ZACC (23) at [41
[3]
2015 (1) SACR 584
(SCA) at [31] - [32]
[4]
S v Monyani and Others 2008 (1) SAGA 543 (SCA) at [23] and [26]
[5]
1970 (4) ALL
SA 12
(A)
at [19]
[6]
[2008] JOL 22159
(ZH)
[7]
[2008] JOL 22048 (T)
[8]
2011 (2) SACR 11 (ECG)
[9]
(419/12)
(2011) ZASCA 191
(30 November 2012)
[10]
2003 (1) SACR 507
(SCA) at 517 g-h
[11]
1965 (2) SACR 616
(A) at 629
[12]
1991 (2) SA 352
(BGD) at 355 A
[13]
1994 (2) SASV 163 (W) at 168 E - G; S v Nkomonde 1993 (2} SASV 597
(W)
[14]
2012 (2) SAGA 373 (GSJ) at 376