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[2017] ZANCHC 32
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L.M v S (CA&R139/2016) [2017] ZANCHC 32 (7 April 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number: JA 78/10
Case No: CA & R 139/2016
Heard
on: 13/03/2017
Delivered
on: 07 April 2017
In
the matter between:
L. M.
APPELLANT
And
THE STATE
RESPONDENT
Coram: Pakati J et
Mamosebo J
JUDGMENT: APPEAL ON SENTENCE
MAMOSEBO
J
[1]
The appellant was convicted of murder (
dolus
eventualis
) read
with
s 51
(2) of the
Criminal Law Amendment Act, 105 of 1997
, by the
Regional Magistrate, Mr View at Keimoes. He was sentenced to Nine (9)
years imprisonment, two (2) years of which were suspended
for five
(5) years, on condition that the appellant was not convicted of
murder and/or assault with intent to cause grievous bodily
harm
committed during the period of suspension. The Magistrate further
ordered that the sentence be antedated to 25 December 2015,
the date
of the commission of the offence since the appellant was in custody
pending finalisation of the matter. This was done
pursuant to s 77
(5) of the Child Justice Act
[1]
.
[2]
The Regional Magistrate refused the application by the appellant for
leave to appeal. The Magistrate was unaware that applying
for leave
was unnecessary because the appellant was 17 years old when trial
commenced on 07 July 2016 and was born on [...] 1998.
In terms of s
84 (b) of the Child Justice Act
[2]
he had an automatic right of appeal. The Magistrate should have just
explained to the appellant that he may appeal directly
to the High
Court against the imposed sentence if he wished to do so or if so
advised by his legal representative. The appellant
was represented by
Adv Victor on instructions of the Legal Aid South Africa who ought
also to have ensured that this unnecessary
step was avoided.
[3] S 77 (5) of the Child Justice
Act
[3]
provides:
“
A
child justice court imposing a sentence of imprisonment must take
into account the number of days that the child has spent in
prison or
a child and youth care centre prior to the sentence being imposed.”
[4]
The basis for the appeal, as argued by Adv Nel, counsel for the
appellant, was that the Regional Magistrate erred in rejecting
the
first two recommendations by the social worker. It was also contended
that the sentence imposed was grossly excessive and amounted
to a
misdirection in:
4.1
failing to consider the sentencing options applicable to a child
offender;
4.2
failing to follow the constitutional approach in sentencing a child
offender;
4.3
failing to follow the principle that imprisonment must be the last
resort and for the shortest period
of time;
4.4
failing to apply the constitutional principles, the trial court
therefore inaccurately set the moral
blameworthiness bar too high;
and
4.5
incorrectly rejecting the recommendations of the social worker
pertaining to a suitable sentence.
[5]
These are the events that led to the charge as contained in his
guilty plea. The appellant went to
Coenie’s
shop to purchase cigarettes on 25 December 2015 (a Christmas Day).
While leaving the shop he noticed the
deceased’s
girlfriend, Leonore. He claims that he and the deceased were
friends. He enquired from Leonore if she saw
Kylo, the deceased’s
nephew. He requested Leonore to inform Kylo that he wanted his
cap back. The deceased showed
up and enquired what the appellant
wanted from Leonore. He gave a response. The
deceased pressed his palm
against the
appellant’s face and pushed him with both his hands on his
chest. The appellant
fell to the
ground. When he stood up the deceased
wanted to push him again
but the appellant drew a knife which he
produced from his trousers and stabbed
the deceased. The
appellant
claimed that he was under the influence of alcohol but could
nevertheless
appreciate what was happening around him during
the time of the incident.
[6]
The chief post-mortem findings carried out on the body of the
deceased by Dr Lemainé Fouché, a Pathologist, are
the
following:
The
body of a coloured adult male with a penetrating stab wound to the
left side of the chest. There is damage to the heart. There
is blood
in both thoracic cavities. The brain is macroscopically swollen with
flattening of the gyri. Both lungs are pale and have
a collapsed
appearance. Both kidneys are swollen.
[7]
Consequent upon the appellant’s conviction a pre-sentence
report was obtained from Ms KM Bezuidenhout, a social worker.
Borrowing from the words used by Ponnan AJA in
Brandt
v S
[4]
the evidence in
mitigation of the case
in
casu
reveals a
childhood characterised by neglect, ill-discipline and ineffective
parenting. The appellant was raised in an atmosphere
of social and
emotional deprivation. Alcohol and substance abuse were the order of
the day.
[8] This is what Ms Bezuidenhout recorded in the report:
“
Volgens
bronne is die beskuldigde ‘n baie gemaklike persoon in
nugterskap. Hy is behulpsaam en het ‘n stil persoonlikheid.
Hulle beleef hom as ‘n ander mens in dronkenskap. Hy word
geweldadig en wil nie gekeer of vermaan wees nie. Hy word gevolglik
wreed kwaad en gee nie om, om die ander persoon lelik te beseer nie.
Volgens bronne as hy in besope toestand is, sal hy altyd skerp
voorwerpe gebruik om die ander seer te maak. Die beskuldigde kom
gevolglik in opstand met gesag en het hy al sy pa en oom al
aangerand.
Vrese onstaan omdat die beskuldigde altyd oor naweke met
wapens beweeg.”
[9] The community’s view was recorded as follows:
“
Sommige
gemeenskaplede het gevoel dat die beskuldigde vir hulle ‘n
gevaar in die gebied inhou. Hulle noem dat dit nie die
eerste keer is
wat die beskuldigde iemand in die woonbuurt steek nie. Hy loop altyd
gewapen rond. Hy is veral onkeerbaar waneer
hy onder die invloed van
alkohol is. Die beskuldigde is ‘n saggeaarde person as hy
nugter is, maar is net die teenoorgestelde
in dronkenskap. Volgens
gemeenskapslede was die slagoffer nie ‘n bakleierige persoon
nie, maar wel ‘n grappige persoon.”
[10]
The following were highlighted as risk factors by the social worker
which cannot be ignored:
10.1
The appellant is a 17 year old with unacceptable habits and
behavioural patterns;
10.2
He abuses alcohol and dagga;
10.3
He exhibits destructive anger tendencies which lead to aggressive
acts and require
management;
10.4
He is a victim of domestic violence;
10.5
He befriends adults;
10.6
He does not accept and maintain a good value system and
standard.
[11] The social worker commented as follows:
“
Dit
wil voorkom dat die beskuldigde baie gewildadig is waneer hy onder
die invloed van alkohol is en ‘n gevaar vir die gemeenskap
is.
Dis juis hierdie element van onvoorspelbaarheid wat die beskuldigde
‘n gevaarlike persoon maak. Verder blyk dit dat die
beskuldigde
hom nie deur die gereg laat afskrik nie en sy woede/aggresiewe
emosies positief kan kanaliseer nie.”
[12]
The social worker recommended three sentencing options to the
Magistrate:
12.1 A sentence of compulsory residence in a
child and youth care centre at Bosasa Child and Youth
Care
Centre, Springbok, on
condition that the appellant receive therapeutic programmes
until
the attainment of the age of 21years; or
12.2
Correctional Supervision in terms of s 276 (1) (i)
[5]
; or
12.3
Direct imprisonment.
[13]
Having taken the pre-sentence report into consideration the
Magistrate rejected the first two options of compulsory residence
and
correctional supervision as recommended by the social worker
and requested by the appellant’s legal representative
and
imposed direct imprisonment with part of the sentence suspended as
pointed out above.
[14]
In
S v
Malgas
[6]
the Supreme Court of appeal made the following pronouncements
pertaining to the test for interference with a sentence on appeal:
“
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it.
To do so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates
its exercise of
that discretion, an appellate Court is of course entitled to consider
the question of sentence afresh….However,
even in the absence
of material misdirection, an appellate court may yet be justified in
interfering with the sentence imposed
by the trial court… when
the disparity between the sentence of the trial court and the
sentence which the appellate Court
would have imposed had it been the
trial court is so marked that it can properly be described as
‘shocking’, ‘startling’
or ‘disturbingly
inappropriate’.
[15]
The Magistrate considered the options of sentencing the appellant to
the child care centres, Bosasa and Marcus Mbeta. He first
remarked
about the concern that the appellant was sober when he was involved
in a reported incident at Marcus Mbeta and commented
that it can
happen at Bosasa as well. He also took into account the fact
that the appellant is a violent person and has demonstrated
his
violence in his homestead by assaulting his own father and uncle. The
Magistrate also raised a concern that the reaction of
the appellant
to produce and use a knife on a person who had just pushed him once
and as he was about to push him again was stabbed,
was excessive and
disproportionate.
[16]
The appellant was not in a life-threatening situation that
necessitated the production and use of a knife. The Magistrate
nevertheless, took into account the fact that the deceased pushed
the appellant as a measure of provocation which still did not
warrant
the act of stabbing. The Magistrate went on to deal with the
pre-sentence report by highlighting several aspects contained
therein. He also noted that the appellant “
word
wreed kwaad”
.
When the accused is in that angry state he does not
care even if he were to injure the other person grievously.
He always
carries in his possession a sharp object or
instrument.
[17]
The Magistrate took into account the views of the community as
contained in the report. The community described the appellant
as
“
wreed”.
Bosman
,
Van der Merwe and Hiemstra, Tweetalige Woordeboek, Tafelberg
Publishers, define “Wreed” as “cruel”,
“inhuman”,
“barbarous”, “ferocious”,
“severe”, “unmerciful”, “unfeeling”
and “pitiless”.
These terms in my view are very
strong terms. That is why the Magistrate even remarked: “
met
alle respek aan u dan lyk dit op naweke sit ons met ‘n monster
tipe hierso in Keimoes in waneer u ‘n dop gaan vat.”
[18]
In as much as the constitution of this country, the international
instruments dealing with the rights of the children in conflict
with
the law, the Child Justice Act and our constitutional democracy
respects and protects the rights of the child and would not
sacrifice
a child transgressor at the altar of deterrence, the opposite holds
true here. I am of the view that the constitution
also protects other
children who may be at risk at the child care centres and would not
want to expose them to a youth with violent
tendencies. The child
care centres are an environment where children in conflict with the
law are accommodated in order to mitigate
the harshness of a prison
environment with all its adverse influences. They have an opportunity
to rehabilitate and transform their
young minds with the aim of being
reintegrated back into the society. As much as the appellant’s
counsel has dealt with the
need to keep the appellant away from
prison, he has avoided addressing the ferocious nature of the
appellant.
[19]
I am concerned about exposing other children to the appellant and
sending him to Bosasa may yield that result. However, being
in the
juvenile section of prison, may still afford the appellant the
opportunity to undergo the programmes he requires to improve
his life
and coping skills without jeopardising the lives of other child
offenders in child care centres. Murder is a schedule
3 offence
but a child under the age of 18 years cannot be sentenced to life
imprisonment: However, murder remains a heinous crime.
[20]
Both counsel emphasised in their heads of argument that s 77 (1)
(b)
[7]
requires imprisonment to be imposed as a last resort and for the
shortest period of time. The section stipulates:
“
(1) A child
justice court –
(b)
when sentencing a child who is 14 years or older at the time of being
sentenced for the offence, must only do so as a measure
of last
resort and for the shortest appropriate period of time”.
This
provision should not be read in isolation but rather in conjunction
with subsection 3 which provides;
“
(3)
A child who is 14 years or older at the time of being sentenced for
the offence, and in respect of whom subsection (2) does
not apply,
may only be sentenced to imprisonment, if the child is convicted of
an offence referred to in –
(a)
Schedule 3.
(4)
A child referred to in subsection (3) may be sentenced to a sentence
of imprisonment for a period not exceeding 25 years.”
[21]
The deceased was a 22 year old friend who died on the scene.
The Magistrate has identified the
existence
of more aggravating factors as opposed to
mitigating factors. The fact that the appellant pleaded
guilty
and was technically a first offender served in his favour. The trial
court also took into consideration the circumstances
surrounding the
appellant’s upbringing which was characterised by domestic
violence, abuse of alcohol
and lack of
self-control when the accused is under the influence
of alcohol. The following were regarded as
aggravating circumstances:
21.1
The prevalence of the offence of murder in Keimoes;
21.2
The fact that the appellant carried a knife with him and used it
under circumstances which were not life-threatening;
21.3
The fact that over weekends the appellant is described as “wreed”.
[22]
In
Centre for
Child Law v Minister of Justice and Constitutional Development and
Others (National Institute for Crime Prevention and
Re-Intergration
of Offenders, as Amicus Curiae)
[8]
Cameron JA, writing for the majority made the following remarks
[9]
which are instructive:
“
But
while the Bill of Rights envisages that detention of child offenders
may be appropriate, it mitigates the circumstances. Detention
must be
a last resort, not a first, or even intermediate, resort; and when
the child is detained, detention must be ‘only
for the shortest
appropriate period of time’. The principles of ‘last
resort’ and ‘shortest appropriate
period’ bear not
only on whether prison is a proper sentencing option, but also on the
nature of the incarceration imposed.
If there is an appropriate
option other than imprisonment, the Bill of Rights requires that it
be chosen. In this sense, incarceration
must be the sole appropriate
option. But if incarceration is unavoidable, its form and duration
must also be tempered, so as to
ensure detention for the shortest
possible period of time.”
[23]
Having had regard to the sentence imposed by the Magistrate as well
as the reasoning that informed the sentence, I am of the
view that
the Magistrate has not misdirected himself and the sentence is not
shockingly inappropriate to warrant our interference.
The
prison authorities are however directed to afford the appellant
programmes that will assist him with his anger management,
life
skills and re-integration into society.
[24] In the result, the
following order is made:
The appeal on sentence is
dismissed.
_____________________
MAMOSEBO J
NORTHERN CAPE DIVISION
I concur
_______________________
PAKATI J
NORTHERN CAPE DIVISION
For
the appellant:
Adv V.Z Nel
Instructed
by:
Legal Aid South Africa
For the respondents:
Adv N.A Mxabo
Instructed by:
Office of the DPP
[1]
No 75 of 2008
[2]
No 75 of 2008
[3]
No 75 of 2008
[4]
Brandt v S
[2005] 2 All SA 1
(SCA) at 9g-h
[5]
the
Criminal Procedure Act 51 of 1977
[6]
2001 (1) SACR 469
(SCA) para 12 at 478d – g
[7]
Child Justice Act, 75 of 2008
[8]
2009 (2) SACR 477 (CC)
[9]
At para 31