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2016
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[2016] ZAFSHC 87
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Pholoana and Others v S (A231/2015) [2016] ZAFSHC 87 (26 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A231/2015
In
the matter between:
LEHLOHONOLO
JOSEPH PHOLOANA
1
st
Appellant
MORAPANA
MAILE
2
nd
Appellant
MOLEFI
JOHANNES KHAKALU
3
rd
Appellant
and
THE
STATE
Respondent
CORAM:
VAN
DER MERWE, J
et
MBHELE, J
HEARD
ON:
18
APRIL 2016
JUDGMENT
BY:
MBHELE,
J
DELIVERED
ON:
26 MAY
2016
[1]
This is an appeal against sentence. The three appellants were accused
1, 3 and 4 in the trial court, where there were 7 accused.
The
appellants were convicted of murder by a regional court sitting at
Botshabelo on 27 March 2015 and were each sentenced to fifteen
years
imprisonment on 17 April 2015. Leave to appeal against sentence
was granted by the trial court.
[2]
The grounds upon which the appellants are challenging their sentence
are briefly that the regional magistrate erred by overemphasising
the
aggravating factors and the interests of the society and disregarding
the appellants’ personal circumstances, more particularly,
the
medical condition of the 2
nd
and 3
rd
appellants. It is further submitted that he erred in finding that
there were no substantial and compelling circumstances justifying
deviation from the prescribed minimum sentence.
[3]
The facts that led to the appellants’ conviction were that on
17 May 2014 the appellants took the deceased, put him in
the trunk of
a car and drove with him to M section Botshabelo to look for the
property belonging to accused 7 which was lost due
to house- breaking
and theft at the parental home of accused 5, 6 and 7. They suspected
that the deceased participated in the theft
and had knowledge of the
whereabouts of accused 7’s stolen property. Upon their arrival
at M section they could not find
the possessor of the said property
and the appellants assaulted the deceased, who directed them to T
section in pursuit of the
search where the efforts yielded no
results. The deceased was subjected to further assault by the
appellants and accused 7. He
was later abandoned in the street at A
section after being subjected to continuous assault. The deceased was
inter alia hit on
the head with a wheel spanner and an iron rod . He
died as a result of head injuries sustained during the assault.
[4]
We are called upon to determine whether the trial court improperly or
unreasonably exercised its judicial discretion.
[5]
Mr. Nkambi, on behalf of the appellants, submitted that the above
question must be answered in the affirmative. Counsel implored
us to
uphold the appeal and interfere with the sentence.
[6]
Mrs. Giorgi on the other hand contended that the question must be
answered in the negative, counsel urged us to dismiss the
appeal and
confirm the sentences.
[7]
We have to take into account the appellants’ personal
circumstances.
[8]
First appellant was 30 years of age at the time of sentencing, he is
single with no children, he went to school up to grade
7, he is a
first offender, he was gainfully employed and earned R 800 per
fortnight. He was staying with his grandmother and his
siblings at
the time of his sentence, both his parents are deceased and he was
supporting his siblings with the money he generated
from his
employment.
[9]
Second appellant was 35 years old and single, he is a father to 3
children who were 12 years, 7 years and 3 years respectively
at the
time of his sentence. He is separated from the mother of his children
and he was the sole breadwinner for his children.
He passed grade 12
at school, he was employed and earned a monthly salary of R1 500.00.
He is a first offender.
[10]
3
rd
Appellant was 32 years old and single. He has one minor child who was
8 years of age. He went to school up to grade 4 and has no
previous
convictions.
[11]
Sentencing is pre- eminently in the discretion of a trial court.
The sentence can only be interfered with if the sentencing
court
exercised its discretion unreasonably or in circumstances where the
sentence is adversely disproportionate.
(See
S
v Pieters
1987 (3) SA 717
of 727)
[12]
The minimum sentence of 15 years imprisonment is applicable in this
matter.
[13]
Mr. Nkambi submitted that there were substantial and compelling
circumstances justifying a departure from the minimum sentence
prescribed by the Act. He further contended that the court has
to look into circumstances that led to the offence.
The test
for existence of substantial and compelling circumstances warranting
deviation from the prescribed minimum sentence is
whether in all the
circumstances of the particular case the relevant prescribed sentence
is unjust. (See
S
v Malgas
2001 (1) SACR 469
SCA.
[14]
It is common cause that the deceased was severely assaulted by the
appellants and left to die in the street despite the appellants
having been advised by a police officer to take the deceased to the
police station for their matter to be investigated further.
The
appellants took the law into their own hands and meted out vigilante
punishment on the deceased. The behaviour displayed by
the appellants
undermined the justice system. The appellants took the deceased’s
life and showed no sense or contrition.
[15]
When weighing up the mitigating factors against the aggravating
circumstances of this matter as well as the interest of community,
I
am not persuaded that the sentence imposed is unjust. I am of
the view that the trial court exercised its discretion judiciously.
There is no basis for us to interfere with the sentences.
ORDER
[16]
I make the following order:
The
appeal fails and sentences are confirmed.
______________
N.M.
MBHELE, J
I
concur
_______________________
C.H.G.
VAN DER MERWE, J
On
behalf of applicant: Mr. Nkambi
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. Giorgi
Instructed
by:
Office
of the Director: Public Prosecutions
BLOEMFONTEIN