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[2016] ZAFSHC 140
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Mkhwanazi v S (A107/2016) [2016] ZAFSHC 140 (19 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A107/2016
In
the appeal between:-
MOSEBETSI
PETRUS
MKHWANAZI
.................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM:
REINDERS, J
et
HINXA, AJ
HEARD
ON:
1 AUGUST 2016
JUDGMENT:
REINDERS, J
DELIVERED
ON:
19 AUGUST 2016
[1]
On 30 September 2013 in the Regional Court for the district of
Witsieshoek held at Phuthaditjhaba the appellant was charged
with
murder and robbery with aggravating circumstances. After the
appellant pleaded guilty to both charges he was convicted and
sentenced to life imprisonment and 15 years imprisonment
respectively. The appellant appeals against the sentence imposed upon
him by virtue of his right of automatic appeal in terms of section
309 (1)(a) of the Criminal Procedure Act 51 of 1977 (the “CPA”).
[2]
The facts of the case appear from the appellant’s statement in
terms of section 112 (2) of the CPA. The appellant was
in the company
of the deceased on 25 February 2012 when he made a request to the
deceased for payment of an outstanding amount
that was due to him.
The deceased refused. The deceased was busy chopping vegetables with
a knife, and after putting it on the
table, the appellant took the
knife and stabbed the deceased in his chest. The deceased fell to the
ground and died later. After
stabbing the deceased the appellant
robbed the deceased of his two cell phones.
[3]
Heads of arguments on behalf of the appellant were prepared by Adv JS
Makhene, but Ms Kruger appeared before us when the appeal
was heard.
She aligned herself with the submissions advanced by Mr Makhene in
the written heads of argument. The main thrust hereof
was that the
court a quo erred in sentencing the appellant in terms of section
51(1) and not in terms of section 51(2) of the
Criminal Law
Amendment Act 105 of 1997 (the “Act”). Mr Maphumulo
supported the sentences imposed by the court a quo
and submitted that
the appellant was correctly sentenced in that the murder was
committed in the execution of robbery with aggravating
circumstances.
[4]
The partially unpaginated record contains the indictment to which the
appellant pleaded. In terms of count 1 the appellant was
charged with
murder read with the provisions of section 51(2) of the Act. In terms
of count 2 he was charged with robbery with
aggravating circumstances
read with the provisions of section 51(2) of the Act. To these
charges the appellant pleaded guilty,
a plea which was accepted by
the prosecution. The learned regional magistrate in his judgment
indicates that, after having read
the appellant’s section 112
(2) statement, he is “convinced that appellant intended
pleading guilty” and accordingly
found him guilty on both
counts.
[5]
After the prosecution did not prove any previous convictions, Ms
Tinder appearing on behalf of appellant in the court a quo,
placed
his personal circumstances on record as follows:
He
is an unmarried 31 year old who passed grade 10. Prior to his arrest
he was employed as a brick manufacturer, earning R 1000
per month.
With this income he maintains his 2 children aged 12 and 6 years as
well as his grandmother who takes care of the children.
He has been
in custody awaiting trial for 7 months.
[6]
Ms Tinder pressed hard upon the learned regional magistrate to
consider the following when imposing a sentence: appellant went
to
the deceased’s residence unarmed, indicating that he was not
the aggressor on the day in question and that the murder
was not
premeditated. Appellant was provoked by the deceased who refused to
pay him his money and the appellant pleaded guilty
which is
indicative of his remorse.
[7]
The prosecutor did not place any aggravating circumstances on record
and merely indicated that “the deceased lost his
life to cell
phones where two cell phones were robbed” and that “minimum
sentences are applicable.” When prompted
by the learned
regional magistrate about minimum sentences to be imposed, life
sentence in respect of the murder charge and 15
years imprisonment in
respect of the robbery charge were advanced. The court a quo then
proceeded to ask Ms Tinder whether she
agrees that “both the
offences merit life imprisonment”. Ms Tinder indicated that she
was unsure about the sentences
but elected not to adjourn in order to
consult authorities.
[8]
The learned regional magistrate proceeded to hand down sentencing.
Even in doing so, he confirmed that the two charges were
read with
the provisions of sec 52(2) of the Act. He indicated that in
sentencing he was bound by the Act but should the court
find
substantial and compelling circumstances, he might deviate therefrom.
However, the learned magistrate merely stated that there
is “very
little before me in respect to what truly and specifically and
precisely happened on the day in question”
and later “(A)s
stated before there is very little placed before me in respect to
what precisely had occurred on this fateful
day so I cannot venture
into the arena of guessing and speculating.” The learned
magistrate did not deal with any mitigating
circumstances advanced by
Ms Tinder or any aggravating circumstances in order to arrive at a
conclusion as to whether substantial
and compelling circumstances
were found by him which would prompt him to deviate from the
prescribed minimum sentences. He proceeded
to sentence the appellant
to life imprisonment in respect of count 1 and 15 years imprisonment
in respect of count 2, indicative
thereof that he sentenced appellant
in terms of sec 51 (1) in respect of the murder charge and in terms
of sec 51 (2) in respect
of the robbery with aggravating
circumstances.
[9]
When it comes to interfering with the sentence imposed by the court
a
quo
, it is trite law that the powers of
the court of appeal are limited, as was stated in
S
v Pieters
1987 (3) SA 717
(A).
Interference is only warranted where the sentence is
disproportionate, harsh or where the sentencing court committed a
material
misdirection.
[10]
From the facts before the trial court (and accepted as such), it can
be gleaned that the unarmed appellant went to the deceased
with the
intention to request money owed to him by the deceased, not with the
intent to commit either a robbery or a murder. After
the deceased
refused to adhere to the appellant’s request the appellant,
ostensibly being provoked by the deceased’s
refusal to adhere
to his request, grabbed the knife that was put down on the table by
the deceased. Appellant stabbed the deceased
in the chest. Hereafter
the appellant robbed the deceased of his two cell phones. This would
mean that the appellant first committed
the crime of murder, and
almost as an afterthought, robbed the deceased of the two cell
phones, presumably with a view of compensation
for the money owed. I
am of the view that these actions did not constitute murder as is
envisaged in Schedule 2 Part I (c)(ii)
where the death of the
victim was caused by the accused in committing or attempting to
commit or
after
having committed or attempted to commit
robbery with aggravating circumstances. Even if I am wrong in my
conclusion, the prosecutor
in accepting the plea, indicated that the
“the facts as contained in the plea statement are in accordance
with the facts
contained in the docket.” It follows that the
prosecution was satisfied that the facts to their knowledge (and
advanced by
the appellant in his section 112(2)-statement) warranted
a charge of murder read with section 51(2) and not section 51(1), and
the appellant was consequently charged as such. Section 51(2)(a)(i)
prescribes the minimum sentence for a first offender convicted
of an
offence referred to in Part II of Schedule 2, as imprisonment for not
less than 15 years. Murder in circumstances other than
those referred
to in Part I as well as robbery when there are aggravating
circumstances, falls under Part II.
[11]
It is our view that the trial court misdirected itself materially in
sentencing the appellant in terms of section 51(1) of
the Act to life
imprisonment in respect of the murder charge. As such we are at large
to interfere and consider the sentence in
regards to the murder
charge afresh. The trial court does not indicate the absence of
substantial and compelling circumstances
to justify the imposition of
a lesser prescribed sentence in respect of both counts. It can,
however, be derived from the sentences
that no such circumstances
were found to exist. We hold the view that the trial court
misdirected itself materially in regards
to the sentence imposed in
respect of count 2 to the extent that it is unclear from the record
that the learned regional magistrate
in handing down sentence applied
his mind to the factors placed before him in order to arrive at a
conclusion that no deviation
from the prescribed minimum sentence is
warranted. We are consequently at large to interfere and consider the
sentence in respect
of count 2 afresh as well.
[9]
No doubt, the crimes of which the appellant was convicted, are very
serious. The deceased not only lost his cell phones, he
also lost his
most priced possession, his life. It has been stressed by our courts
that murder is a serious crime, involving as
it does, the loss of
life.
Vide
:
Director of Public
Prosecutions,Transvaal v
Venter
[2008] ZASCA 76
;
2009 (1) SACR 165
(SCA) at 175g-1771 par [19].
[10]
The appellant is a first offender at 31, which is indicative of the
fact that he might be a good candidate for rehabilitation.
It seems
that he is good human material, a family man labouring to take care
of his two children and grandmother. The fact that
appellant pleaded
guilty to the charges and took the court into his confidence, shows
that he had remorse for the crimes that he
committed. Appellant could
easily have opted to claim that he acted in self-defence, yet he
elected to play open cards with the
court. All factors traditionally
taken into account in sentencing should be considered and none is to
be excluded. To my mind the
factors mentioned above constitute
compelling and circumstantial circumstances which would warrant a
deviation from the prescribed
minimum sentences.
See:
S v Malgas
2001 (2) SA 1222
(SCA)
[11] In
S v
Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC) Ackerman J held as follows at
paragraph [38]:
“
To
attempt to justify any period of penal incarceration…without
inquiring into the proportionality between the offence and
the period
of imprisonment, is to ignore, if not deny, that which lies at the
very heart of human dignity”.
[12]
To my mind sentences of 8 years’ imprisonment on count one and
3 years’ imprisonment on count two, to be served
concurrently,
are proportionate to the crime, the criminal and the legitimate
interests of society.
[13]
In the result, the appeal is upheld and the sentences on Counts 1 and
2 are set aside and replaced with the following:
1.
Count 1: eight years imprisonment.
2.
Count 2: three years imprisonment.
3.
The sentence imposed on Count 1 shall run
concurrently with that on Count 2.
[14]
This sentences must be deemed to have been imposed on 30 September
2013.
C.
REINDERS, J
I
agree.
M.D.
HINXA, AJ
On
behalf of appellant: Ms S Kruger
Instructed
by: Bloemfontein Justice Centre
Legal
Aid SA
BLOEMFONTEIN
On
behalf of respondent: Adv R.B. Maphumulo
Instructed
by: Director of Public Prosecutions
BLOEMFONTEIN