About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2017
>>
[2017] ZAGPPHC 22
|
|
Maroga v S (A87/2016) [2017] ZAGPPHC 22 (2 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO:A87/2016
2/2/2017
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
MATOME
MICHAEL
MAROGA APPELLANT
and
THE
STATE RESPONDENT
JUDGMENT
RANCHOD J:
[1]
This is an appeal against sentence, leave to appeal having been
granted by the Supreme Court of Appeal.
[2]
The appellant was charged with three counts, namely, murder; unlawful
possession of a firearm of an unknown calibre and unlawful
possession
of ammunition. He was convicted on all three counts on 17 October
2007. On the same day the court a
quo
(per Webster J) took all
the charges together and sentenced the appellant to 30 years'
imprisonment.
[3]
As this is an appeal against sentence only, the factual findings of
the trial court
a quo
must be accepted.
[4]
The appellant was convicted of the murder of Ms Moshibudi Georgina
Tlouamma (the deceased). It appears that the deceased and
the
appellant had known each other for about 14 years and had been in a
relationship. At some point they had lived together as
husband and
wife. On a number of occasions the deceased had left the appellant
only to return when the appellant fetched her. The
deceased finally
broke off the relationship with the appellant in August 2004. She
then started a new relationship with another
man. The appellant was
aware of the new relationship. The deceased's mother testified that
on one occasion probably in 2004, the
appellant arrived at her home
and had told her "Jy gaan eendag twee lyke kry in die huis. Ek
sal jou dogter dood maak en selfmoord
pleeg." The deceased's
mother testified further that on one occasion the deceased had come
home with a burn wound on one of
her upper arms. The deceased had
obtained a protection order against the appellant but withdrew it at
some stage.
[5]
On 23 September 2005 the deceased was in the company of her younger
sister, two other adults and a 9 year old girl. They were
on their
way home at night when they encountered the appellant. Without any
provocation, the appellant drew a fire-arm and shouted
at the
deceased. He called her by name and said if she runs he will shoot
her. The deceased and those in her company started running
away from
the appellant when he fired several shots at the deceased. She died
on the scene due to multiple gunshot wounds.
[6]
The appellant's primary contentions on appeal are that he was not
warned of the applicability of the minimum sentence provisions
of Act
105 of 1997 in that the globular sentence of 30 years imprisonment
imposed for the three charges is excessive'; that the
court a
quo
failed to take into account that the crime was a crime of passion
- in other words that the learned Judge did not give sufficient
consideration to what motivated the appellant to do what he did.
Lastly, that it cannot be said on the facts that he planned to
murder
the deceased. As I understood it, this last submission is in the
context of Act 105 of 1997 which provides
for 1a
minimum
sentence where the murder was pre-meditated.
[7]
The principles applicable to the sentencing discretion of the trial
court are trite. In
S v Kgosimore 1999(2) SACR 238 (SCA)
the
court said -
"It is trite law that sentence is
a matter for the discretion of the court burdened with the task of
imposing the sentence.
Various tests have been formulated as to when
a Court of appeal may interfere. These include whether the reasoning
of the trial
court is vitiated by misdirection or whether the
sentence imposed can be said to be startlingly inappropriate or to
induce a sense
of shock or whether there is a striking disparity
between the sentence imposed and the sentence the Court of appeal
would have
imposed. All these formulations, however, are aimed at
d11termining the same thing; viz whether there was a proper and
reasonable
exercise of the discretion bestowed upon the court
imposing sentence. In the ultimate analysis this is the true inquiry.
(Compare
S v Pieters
1987 (3) SA 717
(A) at 727G - I.) Either the
discretion was properly and reasonably exercised or it was not. If it
was, a Court of appeal has no
power to interfere; if it was not, it
is free to do so.'
[8]
In
S v Mokela 2012(1) SACR 431 (SCA)
the court also stated -
'It is well established that
sentencing remains pre-eminently within the discretion of the
sentencing court. This salutary principle
implies that the appeal
court does not enjoy
carte blanche
to interfere with sentences
which have been properly imposed by a sentencing court. In my view,
this includes
the terms and conditions imposed by a sentencing
court, on how or when the sentence is to be served. The limited
circumstances under
which an appeal court can interfere with the
sentence imposed by a sentencing court have been distilled and set
out in many judgments
of this court. See S v Pieters
1987 (3) SA 717
(A) at 727F - H; S v Malgas
2001 (1) SACR 469
(SCA)
(2001 (2) SA
1222
;
[2001] 3 All SA 220)
para 12; Director of Public Prosecutions v
Mngoma
2010 (1) SACR 427
(SCA) para 11; and S v Le Roux and Others
2010 (2) SACR 1)(SCA)
at 26b - d.'
[9]
In casu,
the court a
quo
found that the provisions of
Act 105 of 1997 were not brought to the appellant's attention hence
it dealt with its sentencing discretion
on the basis that the minimum
sentence provisions did not apply. But the learned Judge pointed out,
correctly in my view, that
in an appropriate case it could even
impose the maximum sentence of life imprisonment based on its
inherent sentencing jurisdiction.
The submissions that the appellant
was not warned of the provisions of Act 105 of 1997 are in any event
irrelevant as those provisions
were not taken into account during
sentencing.
[10]
The trial court took the three counts together for purpose of
sentence. The Criminal Procedure Act 51 of 1977 does not expressly
prohibit charges being taken together for purpor13 of sentence nor
does such an
act
in itself constitute a misdirection
(S v
Keulder 1994(1) SACR 91(A) at 101i-102b
and
S v Immelman
[1978(3)] 726 [ADJ at 72BE-729D).
[11]
Counsel for the appellant referred to
S v Masiza 2013(1) SACR 121
(ECG)
where the court stated -
'The imposition of a composite or
globular sentence for a number of offences should particularly be
avoided when the provisions
of the
Criminal Law Amendment Act 105 of
1997
relating to minimum sentences find application in any particular
case. The reason therefor is simply the fact that in such cases
there
also exists the added possibility that it may be found on appeal that
the finding of the court a quo, that there were no
substantial and
compelling circumstances present justifying the imposition of a
sentence less than the prescribed minimum sentence,
cannot stand and
should be set aside. A preferred method of mitigating the cumulative
effect of separate sentences is to order
that they run concurrently,
or to proportionally reduce the sentence imposed on those counts
which do not attract a minimum sentence,
so as to meet the exigencies
of the case. A more fundamental problem arises with the imposition of
a composite sentence, affecting
its validity, when a sentence is
imposed which is competent on one charge1and incompetent on another.'
[12]
The real difficulty is that in imposing a globular sentence it is
impossible to determine the proportionality thereof in respect
of
each count.
[13]
It does appear that the killing of the deceased emanated from her
decision to finally leave the appellant. The appellant would
not
accept it. It is an unfortunate reality that many men still adhere to
the notion that they may not be rejected by a woman irrespective
of
their own unacceptable behaviour. There seems to be a perception that
women are mere chattels who may not exercise their own
freedom of
choice in terminating a relationship. I dare say there are all too
many instances of this .type of attitude of men who
regard it as a
personal affront to their masculinity when they are rejected by a
woman. Also too often the unfortunate result is
the abuse or assault
or, as in this case, the killing of the lover or girlfriend or
spouse. The learned Judge remarked during sentencing
that 'perhaps
the accused in his way of thinking whatever it might have been, might
have been motivated by the anger that some
people experience when
they are rejected'. And further that 'It is well known that a crime
of passion is a crime which has no logic...'.
[14]
What appears from the rather scant evidence about the relationship
between the appellant and the deceased is that theirs was
not a
smooth relationship as can be gleaned from the fact that the deceased
left the appellant on several occasions only to return
when he would
fetch her from her mother's house. The learned Judge referred to the
appellant's conduct, in court, during the trial
and said -
'In his conduct before thir1Court
during the trial it was clear that he is a person who does not
hesitate to try and influence those
around him. He is not afraid to
speak his mind out and speak it out unwittingly. The reason for the
accused to then have obtained
an unlicensed firearm and proceeded to
waylay the deceased in this matter clearly does not indicate the
intention of a person who
wanted to talk about reconciliation. The
fact that he approached her at night is another indication of a
person
who is not serious about reconciliation.
...Furthermore, a factor which indicates the accused's intention is
the fact that he did
not just simply shoot into the air or shoot into
the ground but he shot at the deceased. He did not shoot once he shot
several
times.
...she was shot even before [she]
started running.'
[15]
The learned Judge also took account of the fact that the appellant
showed no remorse. He had raised an alibi that he was in
another town
- Newcastle - at the time the deceased was shot and killed.
[16]
As I said earlier, the learned Judge seems to have accepted that the
murder was a crime of passion. In these circumstances
it seems to me
that the sentence of 30 years' imprisonment is disturbingly
inappropriate.
[17]
In
S v Di Blasi 1996(1) SACR 1(A)
the accused had felt
insulted that his wife decided to divorce him. He started harbouring
feelings of bitterness and revenge toward
her and decided to kill
her. When the opportunity presented itself, he fired three shots, two
of which killed her, in the street
in front of her flat. He
thereafter tried to commit suicide but failed to do so. The accused's
motivation for killing the deceased
was hurt pride, humiliation and
revenge and he had planned the killing over a long time.
[18]
In casu,
the deceased's mother testified that the appellant
had told her that one day she would fine two dead bodies - one of the
deceased
and the other of himself. He uttered these words about a
year before he killed the deceased. One can therefore irfer that he
harboured
anger and resentment towards the deceased for some time
before eventually killing her.
[19]
In
Blasi
the trial court had imposed a sentence of four years'
imprisonment seemingly placing weight on the defence's submission
that the
accused suffered from diminished criminal capacity at the
time. The Appellate Division rejected this submission, set aside the
sentence and in its place imposed a sentence of 15 yearsl
imprisonment.
[20]
Whilst no two cases are exactly alike, a perusal of a number of cases
of so-called crimes of passion seem to indicate that
sentences
between 10 and 20 years have been imposed.
[21]
The personal circumstances of the accused, as submitted during the
trial are that he was 35 years old when he committed the
crimes, he
was not married and has no children. It was also submitted that he
supported the family of the deceased financially.
He has two previous
convictions for theft committed in 1995 and 1996 respectively. The
current offences were committed on 23 September
2005.
[22]
It was also submitted
that
the appellant regretted the death
of the deceased. In
S v Matyityi 2011(1) SACR 40 (SCA)
drew a
distinction between regret and remorse when Ponnan JA said, at 47,
paragraph [13] a-e: '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. Until and unless
that happens, the genuineness of the contrition
alleged to exist
cannot be determined. After all, before a court can find that an
accused person is genuinely remorseful, it needs
to have a proper
appreciation of, inter alia: what motivated the accused to commit the
deed; what has since provoked his or her
change of heart; and whether
he or she does indeed have a true appreciation of the consequences of
those actions.'
[23]
The trial Judge remarked that the conduct of the accused throughout
the trial was such that it was clear that he showed no
remorse. It is
also clear that he steadfastly refused to acknowledge that he did
commit the crime. He raised an alibi which was
proved to be false.
[24]
In my view taking all factors into account an appropriate sentence
would be 20 years for the murder count.
[25]
Insofar as the other two counts are concerned, they may conveniently
be taken together for purpose of sentence and order that
it run
concurrently with that imposed for the murder charge.
[26]
I would make the following order:
1. The appeal in respect of sentence
is upheld.
2. The sentence is set aside and in
its place the following sentence is imposed:
2.1
A term of twenty years' imprisonment for count 1, that is, murder.
2.2
Counts 2 and 3 for the unlawful possession of a firearm of unknown
calibre and unlawful possession of ammunition a term of imprisonment
of seven years is imposed which is to run concurrently with the
sentence imposed for the murder count.
2.3
The sentence is ante-dated to 17 October, 2007.
________________________
RANCHOD J
JUDGE
OF THE HIGH COURT
I
AGREE
________________________
A.
A. LOUW J
JUDGE
OF THE HIGH COURT
I
AGREE
_________________________
MOLAHLEHI
AJ
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Counsel
on behalf of Appellant :
Adv. L.A van Wyk
Instructed
by :
Legal Aid SA
Counsel
on behalf of Respondent :
Adv. A Roos
Instructed
by :
Director of Public
Prosecutions,
Pretoria
Date
heard :
21 October 2016
Date
delivered :
2 February 2017