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[2017] ZAFSHC 120
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Moloi and Another v S (A189/2016) [2017] ZAFSHC 120 (15 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A189/2016
In
the matter between:
MALEFANE
ZACHARIA MOLOI
Appellant
1
NAPO
MOLOI
Appellant
2
and
THE
STATE
Respondent
HEARD
ON:
13
February 2017
CORAM:
MATHEBULA, J
et
MOTIMELE, AJ
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
15 June 2017
[1]
This is an appeal against both conviction and sentence imposed by the
Regional Court, Phuthaditjhaba. The appellants (who
are
brothers) were arraigned before the court on a charge of murder
(read
with provisions of
Section 51(2)
,
52
(2),
52A
and
52B
of the
Criminal
Law Amendment Act 105 of 1997
).
[2]
The appellants, who were legally represented, tendered a plea of not
guilty. The first appellant denied all allegations
against him and no admissions were recorded on his behalf. The
basis of the defence for the second appellant was an alibi
and his
counsel made admissions which were recorded in terms of section 220
of the Criminal Procedure Act 51 of 1977 (amended).
These
related to the date, time and place of the incident; identity of the
deceased; jurisdiction of the court; the findings of
the medical
practitioner who conducted the post mortem; the transportation of the
body from the scene of crime to the mortuary
and that the deceased
suffered no injuries from the date of death until the autopsy was
conducted. These were not confirmed
by the appellant and
neither did the court request him for such confirmation.
However they were unchallenged throughout the
proceedings.
[3]
At the conclusion of the trial they were both sentenced to life
imprisonment in terms of section 51 (1) Part 1 of Schedule 2
of Act
105 of 1977. They are aggrieved by both conviction and
sentence. The respondent supported the conviction and
sentence.
[4]
On the 23
rd
August 2008 between 13H00 pm – 14H00 pm Tsholedi Reginald
Twala (deceased), Thabiso Carpet Ntjebe, Mathapelo Mokoena
and
Elizabeth Moloi were enjoying alcoholic beverages at a tavern in
Sehlajaneng Village, Qwa-Qwa. Their peace was interrupted
by
the arrival of the appellants and Gediboni. The deceased looked
uneasy and scared by their presence at the venue.
It transpired
that the deceased had a tiff with the first appellant on a previous
occasion. Further that the appellants were
looking for him on
the day in question. The two ladies urged him to remain behind
and hike a lift from one Snake who was
also a patron at the venue.
They all left the deceased behind inside the tavern.
[5]
They were hardly at the gate when the deceased emerged running with
the appellants in hot pursuit. The second appellant
tripped him
and this enabled the first appellant to stab him on his body.
Thereafter the first appellant handed the knife
to the second
appellant who joined in the frenzy of stabbing the deceased.
The deceased stood no chance of defending himself
and he was not a
threat at all to his assailants. On seeing such brutality, the
other people fled the scene on foot.
[6]
The first appellant took to the stand and testified that they did
have a quarrel with the deceased about a month prior to the
fateful
day of the 23
rd
August 2008. It was caused by the deceased spilling beer on him
at Noah’s Tavern. On that day they got engaged
in an
exchange of blows in order to settle their squabble. The second
appellant intervened to stop the fight.
[7]
On the 23
rd
August 2008 he was sitting outside on the stoep at Dienies Tavern
drinking alcoholic beverages with Gediboni and Thabo. He
stood
up to go to the bathroom to pass water. He noticed out of the
corner of his eye that he was being followed. As
he stood at
the urinary relieving himself, he was struck on the head with an
object and he fell down. He probably lost his
consciousness for
few minutes. On regaining it, he noticed Gediboni and Thabo in
possession of blood stained knives.
They assured him not to
pursue anybody because they have already avenged his assault.
At that time the deceased was lying
on the ground. It was his
testimony that the second appellant was also at the tavern on the day
in question.
[8]
The second appellant testified that he was contacted by Gediboni that
the first appellant was engaged in a fight at the tavern.
He
arrived at the tavern and pulled his knife wielding brother (first
appellant) from the deceased. He did not participate
in any
activity that resulted in the death of the deceased. It was his
evidence that the witnesses were falsely implicating
him in the
commission of the offence.
[9]
The trial court correctly rejected the version of the appellants and
found them guilty on a charge of murder. On behalf
of the
appellants, Ms Kruger conceded that the evidence against the
appellants was unimpeachable and that the conviction was in
order.
I agree with the concession that the appeal against conviction ought
to fail. The trial court proceeded to impose
a sentence of life
imprisonment on both appellants.
[10]
Ms Kruger submitted on behalf of the appellants that the trial court
misdirected itself in imposing a sentence of life imprisonment.
The appellants were not afforded a fair trial in that they were not
informed with sufficient detail of the charge they were required
to
answer. In essence they were subjected to a trial by ambush.
Further that the trial court erred by not finding the
existence of
substantial and compelling circumstances enabling it to impose a
lesser sentence of below fifteen (15) years imprisonment.
[11] Mr Simpson conceded
that the appellants had a right which was breached. It was his
view that the appellants were not
explained their rights and
everybody was taken aback by the judgement of the trial court when
the offence which they thought carried
a minimum sentence of fifteen
(15) years suddenly attracted life imprisonment. I agree with
that submission. He submitted
that he support the sentence of
eighteen (18) years imprisonment.
[12]
Sentencing is pre-eminently in the discretion of the trial court.
A court of appeal will only interfere with any sentence
in limited
circumstances. The court of appeal may interfere if the
trial court misdirected itself or committed an irregularity
or the
sentence is shockingly inappropriate. Such a
misdirection must not be a mere misdirection but the one
that
vitiates the decision of the court on sentence. These
principles were stated clearly in
S
v Pieters
1987 (3) SA 717
(A) at 728 B – C and S v Pillay
1997
(4) SA 531
A at 535 E-G
.
[13]
The cornerstone of every criminal case is that the accused person
must be subjected to a fair trial. This right recognised
in the
common law finds more expression in the current constitutional
dispensation. This was emphatically expressed by the
court as
follows in
S
v Legoa
2003 (1) SACR 13
(SCA) at paragraph 20.
“
Under
the common law it was therefore 'desirable' that the charge-sheet
should set out the facts the State intended to prove in
order to
bring the accused within an enhanced sentencing jurisdiction.
It was not, however, essential. The Constitutional
Court has
emphasised that under the new constitutional dispensation, the
criterion for a just criminal trial is 'a concept
of substantive
fairness which is not to be equated with what might have passed
muster in our criminal courts before the Constitution
of the Republic
of South Africa Act 108 of 1996 came into force'. The Bill of
Rights specifies that every accused has a right
to a fair trial.
This right, the Constitutional Court has said, is broader than
the specific rights set out in the sub-sections
of the Bill of
Rights' criminal trial provision. One of those specific rights
is 'to be informed of the charge with sufficient
detail to answer
it'. What the ability to 'answer' a charge encompasses this
case does not require us to determine.
But under the
constitutional dispensation it can certainly be no less desirable
than under the common law that the facts the State intends
to
prove to increase sentencing jurisdiction under the 1997 statute
should be clearly set out in the charge-sheet.”
[14]
In this matter it was not pertinently brought to the attention of the
appellants that the State intended to rely on the provisions
of
section 51(1) Act 105 of 1997 calling for the ultimate sentence.
The trial court on
page
1 lines 19 and 20
of the record made reference to whether it was explained to the
appellants “
the
question relating to minimum sentences”
.
Their response was an emphatic “
No”
.
What follows thereafter is the confirmation that they have been
provided with the explanation. This is patently inadequate
and
vague because it is unclear which specific provision(s) were indeed
dealt with by the defence counsel. It stands to reason
that
this had a direct bearing on the accused mounting a proper defence.
It appears that “
not
everybody knew what it was all about”.
The confusion that ensued regarding the sentence of fifteen (15)
years or life imprisonment after conviction between the
presiding
officer and the defence counsel is illustrative of the prejudice
suffered by the appellants.
[15]
It is the obligation of the presiding magistrate to satisfy himself
that the accused before him fully understand that he stands
to be
sentenced to the applicable prescribed minimum sentence unless there
are substantial and compelling circumstances. The difference
between
fifteen (15) years and the imposed sentence is definitively a huge
one. Undoubtedly this resulted in an irregularity
which
rendered the trial unfair in the circumstances. They were
charged under section 51(2) of Act 105 of 1997 but sentenced
under
section 51(1). Obviously the state was aware of all the facts
of the matter and after careful consideration pursued
the matter in
the manner they did. They were not seeking the ultimate penalty
but a lesser sentence.
[16]
The trial court did not find any substantial and compelling
circumstances and imposed the ultimate sentence of life
imprisonment.
The principles of what constitutes substantial
and compelling circumstances were articulated in
S
v Malgas
2001 (2) SA 1222
(SCA).
The test as laid down for the existence of substantial and compelling
circumstances justifying deviation from the prescribed
minimum
sentence is whether or not the cumulative effect of mitigating
circumstances on the gravity of the offence and the interest
of the
society rendered the prescribed sentence unjust. It has been
held that the court should not deviate from the minimum
sentence for
flimsy or unconvincing considerations.
See:
S v
Matyityi
2011 (1) SACR 40
(SCA).
[17]
The first appellant was thirty one (31) years old at the time of
sentencing. He was married with two (2) children aged
thirteen
(13) and nine (9) years respectively. He was employed at a
construction company earning R3 200,00 per month.
This was
the only income that was utilised to maintain his family. He
had two (2) previous convictions of assault with intent
to do
grievous bodily harm committed in 2005.
[18]
The second appellant was 28 years old at the time of sentencing.
He was married with one (1) child aged seven (7) years.
It is
not recorded whether he was employed or not. Further it appears
that he had no previous convictions
[19]
The appellants attacked a defenceless deceased in a brutal and
predatory manner. They inflicted multiple stab wounds
on his
back which clearly indicates that he was attempting to escape the
relentless attack. The taking away of a life of
another person
is a matter which is serious in nature. The right to life is a
right that must be jealously guarded and this
must reflect in the
sentences that are meted out by the court.
[20]
The trial court found that there were no substantial and compelling
circumstances to deviate from the prescribed minimum sentence.
I agree on that aspect although the court applied the principle on
the incorrect provision. There are no jurisdictional facts
to
justify the imposition of the life imprisonment. The deceased
was murdered for the sake of it and mercilessly so.
Murder is
abhorrent in the democratic society. Sentence must achieve its
objective which is retribution, rehabilitation,
deterrence and the
prevention of the crime.
[21]
In this matter, the prescribed minimum sentence for murder in terms
of section 51(1) read with Part 2 of Schedule 2 is fifteen
(15) years
imprisonment. I apportion the blame equally on them and that
they deserve to be punished the same way. I
am convinced
that the trial court exercised its discretion wrongly and that I am
at the liberty to interfere. The sentence
imposed in this
matter must be set aside.
[22] Accordingly, I make
the following order:
22.1
The
appeal against conviction is dismissed.
22.2
The
conviction is confirmed
22.3
The
appeal against sentence is upheld.
22.4
The
sentence of life imprisonment imposed on each of the appellants is
set aside and substituted with one of eighteen (18) years
imprisonment.
22.5
The
sentence is ante-dated to 22 February 2012.
_____________
MATHEBULA,
J
I
concur
______________
MOTIMELE,
AJ
On
behalf of applicant:
Adv. S Kruger
Instructed
by:
Bloemfontein Justice Centre
On
behalf of respondents:
Adv. A
Simpson
Instructed
by:
The Director of
Public Prosecutions
/roosthuizen