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[2016] ZAFSHC 147
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Mokoena v S (A118/2016) [2016] ZAFSHC 147 (25 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A118/2016
In
the matter between:
SETHIBA
MOKOENA
Appellant
and
THE
STATE
Respondent
CORAM:
MBHELE,
J
et
MATHEBULA,
AJ
HEARD
ON:
08
AUGUST 2016
JUDGMENT
BY:
MATHEBULA,
AJ
DELIVERED
ON:
25
AUGUST 2016
[1]
The appellant was convicted in the Regional Court, Sasolburg of
assault with intent to do grievous bodily harm and robbery with
aggravating circumstances in terms of section 1 of Act 51 of 1977.
He was sentenced to five (5) years and fifteen (15) years
respectively. He appeals against the sentence and does so with
leave from the court
a
quo
.
[2]
On the 2
nd
October 2010, the complainant Joseph Malefetsane Mofokeng was at the
stokvel when a commotion erupted. The music system was
taken
outside by the host as she wanted to sleep. While he was
standing next to the music system, the appellant (without
any reason)
stabbed him five times with a knife on various parts of his body.
He was admitted at the hospital for two (2)
weeks primarily as a
result of the wound underneath the left ear. Although the
appellant was charged with attempted murder,
the court
a
quo
convicted him with assault with intent to do grievous bodily harm.
[3]
Leslie Zungu and its friend were walking on the street on 9
th
October 2010 at around 14H00. They were accosted by the
appellant and two other unknown male persons. The appellant
requested two (R2.00) rands from the complaint. He told him
that he does not have any money on him. One of the other
two
men drew out a knife and the appellant took the complainant’s
cellphone namely a Samsung GT 2120 valued at R369.00.
Thereafter the assailants walked away and they too proceeded with
their journey. I am satisfied that the appellant was correctly
convicted of this charge.
[4]
It was submitted on behalf of the appellant that the sentence imposed
was shockingly inappropriate. Further that the court
a
quo
over-emphasized the previous convictions of the appellant in meting
out the sentence. In essence that the court
a
quo
erred in not finding that there were substantial and compelling
circumstances that would have justified deviation from imposing
the
minimum sentence of fifteen (15) years. The state represented
by Mr Bontes, correctly conceded that the court
a
quo
erred and that the sentence imposed was shockingly inappropriate.
[5]
It is trite law that the court of appeal should not lightly interfere
with a sentence imposed by the trial court. (See
S
v Pillay
1977 (4) SA 531
at 535 E-F and
S
v Pieters
1987 (3) SA 717
(A) at 728 B-C). Sentencing remains the
discretion of the trial court. The court of appeal may
interfere if the trial
court misdirected itself or the sentence is
shockingly inappropriate.
[6]
I have painstakingly considered the sentence imposed on charge number
1. It is shockingly severe and inappropriate.
This is the
type of an offence that is normally tried in the district courts.
The complainant was not in a life threatening
situation as a result
of the stab wounds. There is a wide disparity between the
sentence and the offence suggesting that
the court
a
quo
exercised its discretion much to the detriment of the appellant.
I am of the view that two (2) years imprisonment will be
appropriate.
[7]
The court
a
quo
did not find the existence of any substantial and compelling
circumstances thus did not deviate to impose any sentence below
fifteen
(15) years imprisonment. The complainant was approached
by three men one of whom produced a knife. He was searched and
a cellphone was removed from him. He did not sustain any
injuries except to be seriously threatened. The cellphone
was
later discovered by the police and it was of minimal value. The
appellant was fairly young and unmarried. As this
robbery, as
Mr Bontes correctly submitted, was not the “traditional”
or the “worst kind” of robbery.
I am at liberty to
interfere with the sentence imposed by the court
a
quo
.
ORDER
[8]
Accordingly I make the following order:
1.
Sentence
on charge number 1 is set aside and substituted with two (2) years
imprisonment.
2.
Sentence
on charge number 2 is set aside and substituted with ten (10) years
imprisonment.
3.
I
direct that both sentences run concurrently.
4.
The
aforegoing sentence shall be deemed to have been imposed on the 13
th
April 2011.
__________________
MA
MATHEBULA, AJ
I
concur
______________
NM
MBHELE, J