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[2017] ZAFSHC 168
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Mafabatho v S (A25/2017) [2017] ZAFSHC 168 (14 September 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: A25/2017
In
the appeal between:
MOEKETSI
MAFABATHO
Appellant
and
THE
STATE
Respondent
CORAM:
MBHELE J, MATHEBULA J et
HEFER AJ
JUDGMENT
BY:
MATHEBULA, J
HEARD
ON:
28 AUGUST 2017
DELIVERED
ON:
14 SEPTEMBER 2017
[1]
This is an appeal against sentence only on count 1 with leave of the
learned judge in the court a quo. In this matter
the appellant
was sentenced to imprisonment for life on conviction of murder, two
(2) years on conviction of assault with intent
to do grievous bodily
harm and in terms of Section 103 of Act 60 of 2000 declared unfit to
possess a firearm.
[2]
The factual background is as follows. On the 5
th
July 2015 the deceased was attending a party at the house of one DJ
Pezozo at K7, Kutlwanong, Odendaalsrus. Loud music was
played
and liquor was available and flowing freely. A tiff erupted
between accused number 3 (in the court a quo) and the
deceased inside
the tent where the event was held. The other accused persons
including the appellant (accused number 4 in
the court a quo) joined
in the fracas and pelted the deceased with beer bottles. This
migrated outside in the street with
the appellant and his co-accused
in hot pursuit. It appears the deceased was running home few houses
away but could not enter the
erf because the gate was locked.
His assailants caught up with him and the fighting began in earnest.
The deceased
fell and this gave his assailants an opportunity to stab
him multiple times. The appellant was positively identified as
one
of the persons who inflicted stab wound(s) on the deceased.
The State Pathologist recorded the cause of death as “
steekwonde
aan die longe en hart”.
The intervention of his brother was quickly quelled when he was hit
with a crate on the face by accused number 2.
[3]
I am satisfied that the learned judge did not err in finding the
appellant guilty as charged in respect of count number 1.
The
pertinent aspect to be considered in this matter is the issue of
sentence.
[4]
The respondent proved its case beyond reasonable doubt. On
behalf of the appellant, Mr Nel argued that the appellant had
shown
remorse and had recanted from an earlier stance of extricating
himself from the murder of the deceased but to acknowledging
his
involvement in it. Further he went as far as pleading for
forgiveness from the family of the deceased and the court to
have
mercy on him for wasting its valuable time. The State,
represented by Mrs Liebenberg submitted that the court a quo
was
correct in imposing life imprisonment and that the appellant did not
ask for mercy from the bottom of his heart but did so
in order to
escape a heavy sentence.
[5]
It must be borne in mind that sentencing is pre-eminently the domain
of the trial court. In
S
v Kumalo
1973 (3) SA 697
(A) on page 698 at B-C
the correct approach was set out as follows:-
“
In every appeal
against sentence the enquiry is whether there was an improper
exercise of judicial discretion, i.e., whether the
sentence is
vitiated by irregularity or misdirection or is strikingly disparate
from what the appellate tribunal considers appropriate”
.
[6]
In this matter the deceased was stabbed by a group of persons acting
in the execution or furtherance of a common purpose.
Life
imprisonment was the minimum sentence. Section 51 (1) of Act
105 of 1997 read with Part 1 (d) of Schedule 2 makes provision
for
the aforementioned sentence in such circumstances.
[7]
The learned judge did not find any substantial and compelling
circumstances to deviate from imposing the ultimate sentence of
life
imprisonment. The test as outlined in order to deviate is
whether or not the accumulative effect of mitigating circumstances
on
the gravity of the offence and the interest of the society rendered
the prescribed sentence unjust, see
S
v Malgas
2001 (2) SA 1222
(SCA)
.
[8]
This was a senseless and brutal killing of another human being.
The deceased sustained approximately thirty six (36) stab
wounds.
He was no match for the appellant and other members of his group.
He was stabbed until he laid lifeless in
the street. It was a
ferocious attack. The preservation of human life is of utmost
importance to all of us. The Constitution
of the Republic
provides freedom and security to all. All these other rights
will be hollow rhetoric if the right to life
is rendered
unimportant. The court must deal decisively with those who
wantonly maim or obliterate others. The learned
judge was
correct to conclude that long term imprisonment was the appropriate
response from the courts.
[9]
The appellant was born on the 2
nd
January 1993. This means that he was 22 years, 6 months and 2
days old when he committed the offence. He is a father
of two
(2) minor children aged one (1) year and one and a half (1½)
years from two (2) different women. Both those
children are in
the care and custody of their mothers. His scholastic
achievement is N4. Prior to his incarceration
he was a meat
vendor earning about R500.00 per month.
[10]
It is trite that the court must blend its sentence with mercy where
the accused person shows remorse. In this matter,
it was
submitted that the appellant did so and that the court a quo should
have found as much and deviated from imposing life imprisonment.
[11]
The transcribed record on pages
38
lines 11 to 25
and 39
lines
1 to 8
reads as follows:-
“
Now
you are in the witness stand yourself, under oath. Do you see Mr
Motlororo today in this courtroom? --- Yes, I saw him.
It
is you speaking yourself. What do you say to him?
---
My Lady, from the bottom of my heart I say to Mr Motlororo he must
forgive us for what we have done. I know that my asking for
forgiveness will not bring back the deceased’ life, but
wholeheartedly I am asking for his forgiveness. My Lady, what I did
on that day, I did it being under the influence of liquor, and also
under my peer pressure.
Anything
else? --- I am asking for forgiveness to this Court of wasting the
Court’s time until the Court on its own found
me guilty. Also
asking for forgiveness from Kutlwanong community for the deed what we
have done. I would also ask the Court to
be lenient when sentencing
me. I further ask the Court to order that the sentence that the Court
will impose runs concurrently
with the sentence that I am currently
serving. I believe that the sentence that the Court will impose on me
will make me a changed
man and stop doing wayward things that I have
been doing before. It will turn me to be a role model to the
youngsters of my township.
[12]
The issue of remorse was dealt with in
S
v Matyityi
2011 (2) All SA 424
(SCA)
.
On
page
431
at
B-D
the court said the following:-
“
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. There is no indication that any of
this, all of which was peculiarly
within the respondent's knowledge,
was explored in this case”
.
[13]
The appellant demonstrated remorse after his guilt was pronounced by
the learned judge. Mrs Liebenberg correctly conceded
that the
appellant had every right to plead not guilty and defend himself.
The appellant made an impassioned plea for forgiveness
to the family
of the deceased, the community of Kutlwanong and the court from the
bottom of his heart. He said it so himself
not through his
counsel. I cannot find any basis for the submission of the
state that the appellant is not genuine in this
regard.
Furthermore, the appellant recanted his stance of maintaining his
innocence to unequivocal acceptance of his direct
role in the killing
of the deceased. He explained that he denied complicity in the
murder because he was frightened.
He did so extensively at the
available opportunity afforded to him. It is my considered
opinion that given the surrounding
circumstances, this is a genuine
demonstrable act of remorse emanating from the appellant. The
court a quo should have taken
this into consideration and dealt with
it in an appropriate manner,
[14]
The appellant in this matter is a fairly young man. The court a
quo erred that he was 27 years old. He is of the
same age band
with the other accused. Despite the economic hardship facing
many in the country, he tried to earn a decent
living as a vendor.
Unfortunately he succumbed to peer pressure with disastrous
consequences. He still has a lot of productive
life ahead of
him and just need to refocus through reform and rehabilitation
programmes. It is an undeniable fact that liquor
was consumed
in abundance at the party. I am prepared to accept in favour of
the appellant that it played a significant role
in the commission of
the offence. Both counsel conceded that this was not a
pre-meditated murder but occurred in the spur
of the moment.
[15]
The court
a
quo
should strike a healthy balance in order to achieve the equilibrium
that is the cornerstone of the trial. Life imprisonment
is a
hard and lengthy term of imprisonment by its very nature. It is
the type of sentence that must be reserved for hardened
offenders and
recidivists. It is the ultimate that a court can impose.
It can easily break the offender. In
S
v Sparks and Another
1972 (3) SA 396
(A) at 410 G-H
the court said the following:-
“
On the other
hand, the offences were, without doubt, very grave; and, in addition
to the matter of punishment, the deterrent aspect
calls for a measure
of emphasis, lest others think the game is worth the candle.
Nevertheless, the appellants must not be visited
with punishments to
the point of being broken. Punishment should fit the criminal as
well as the crime, be fair to the State
and to the accused, and be
blended with a measure of mercy.
[16]
I take the view that because of its burdensome effect and
consequences on the offender, the court should explore every
opportunity
to circumvent such a sentence without over-emphasizing
any aspect of the trial over another. In
S
v GN
2010 (1) SACR 93
(T) on page 97 F-G
the court stated the following:-
“
Where the
minimum prescribed sentence is life imprisonment, it is impossible to
differentiate otherwise than by imposing a lesser
sentence. Thus,
where the Act prescribes imprisonment for life as a minimum
sentence, the fact that it is the ultimate sentence
must also be
taken into account. Accordingly, in its quest to do justice, a court
will more readily impose a lesser sentence where
the prescribed
minimum sentence is imprisonment for life. Put differently, where the
prescribed minimum is life imprisonment, a
court will more
readily conclude that the circumstances peculiar to the case are
substantial and compelling, to the extent
that justice requires a
lesser sentence than life imprisonment”
.
[17]
In this matter the court made mention of the previous convictions of
the accused. It appears that the learned judge concluded
that
the appellant had forfeited his opportunity to rehabilitate himself.
It is startling to note the huge disparity between
the sentences of
his co-accused and that of the appellant. Some do have similar
previous convictions as his. The two
(2) co-accused were
sentenced to thirteen (13) years imprisonment each while the
appellant was sentenced to life imprisonment.
Their
participation in the commission of the offence belied their tender
age. They took the lead and inflicted most wounds
on the
deceased. The appellant is only four (4) years older than his
co-accused. In this matter, they all participated as
peers.
[18]
It is my opinion that in this matter the sentence to be imposed on
the appellant must not only be about retribution but assist
him to
rehabilitate and afford him an opportunity to be on the straight path
to reform. Taking into consideration all the
circumstances
cumulatively, I am of the view that the learned judge should have
found that there were substantial and compelling
circumstances
enabling deviation to impose a lesser sentence than the ultimate
one. I conclude that I am at liberty to interfere
with the
sentence imposed by the learned judge.
[19]
The appellant was also found guilty of the second count namely
assault with intent to do grievous bodily harm. The learned
judge ordered that the sentence imposed on that count run
concurrently with the sentence that he is appealing against in this
matter. I suppose the only reasoning was that the sentence
imposed on the first count was life imprisonment. In changed
circumstances, the reasoning will be that both offences arose out of
the same set of facts and that sentences should run concurrently
with
each other.
[20]
I accordingly make the following orders:
1.
The appeal
against sentence on count 1 is upheld.
2.
The
sentence of
life
imprisonment
imposed is set aside and substituted with one of
sixteen
(16) years imprisonment
.
3.
The
sentence imposed on count 1 should run concurrently with the sentence
on count 2.
4.
The
sentence is ante-dated to the
11
th
November 2016
.
5.
In terms of
Section 103 of Act 60 of 2000 the appellant is declared unfit to
possess a fire-arm.
___________________
M. A. MATHEBULA, J
I
concur.
______________
N.M. MBHELE, J
I
concur.
_______________
J. J. F. HEFER, AJ
On
behalf of the appellants: Adv. P. Nel
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. E. Liebenberg
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
/roosthuizen