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[2016] ZANCHC 9
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Phakoje v S (KS18/2013) [2016] ZANCHC 9 (16 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
NO
Circulate
to Judges: YES
Circulate
to Magistrates: NO
Circulate
to Regional Magistrates: NO
CASE
NO: KS 18/2013
DATE
HEARD: 12/09/2016
DATE
DELIVERED: 16/09/2016
In
the matter between:
PHOKOJE,
J
M
Appellant
and
THE
STATE
Coram:
Williams J
et
Olivier J
et
Mamosebo J
JUDGMENT
Olivier
J:
[1.]
The appellant, Mr S M
Phokoje, together with Mr S D Malgas and Mr N E McKenzie, appeared in
the High Court on a charge of murder.
After the charge
was provisionally withdrawn against Mr Malgas, both the appellant and
Mr McKenzie pleaded guilty to it.
Their pleas, and the factual
basis thereof, were accepted by the prosecutor, Adv CG Jansen of the
Office of the Director of Public
Prosecutions, and the appellant and
Mr McKenzie were duly convicted as charged.
[2.]
After it had been found
that there were no substantial and compelling circumstances which
justified a lesser sentence than that
prescribed in the
circumstances, both the appellant and Mr McKenzie were sentenced to
life imprisonment. The appellant’s
application for leave
to appeal against his sentence was dismissed, but on petition he was
granted leave.
[3.]
Although
the addresses on sentence have not been transcribed, it appears from
the judgment on sentence that Ms Jansen had suggested
a sentence of
between 18 and 22 years imprisonment for both the appellant and Mr
McKenzie. As counsel for the respondent
in the appeal Ms
Jansen, however, supported the appellant’s sentence of life
imprisonment in her heads of argument.
In doing so she made a
reference to the trite principle that a court of appeal will only
interfere with a sentence where it is
shockingly inappropriate or the
result of a material misdirection
[1]
.
This, however, is not the correct approach where a prescribed
sentence is concerned. In such an appeal the court will
reconsider the findings of the sentencing court regarding the
existence or not of substantial and compelling circumstances
[2]
.
[4.]
In any event, as will
appear in due course the court
a
quo
in this case
did misdirect itself in several respects in arriving at the
conclusion that there were no substantial and compelling
circumstances justifying a lesser sentence than life imprisonment.
[5.]
It was common cause
that the appellant, Mr Malgas and Mr McKenzie had on the particular
night gone to a tavern, intent on stealing
from other patrons.
Mr McKenzie was caught in the act of trying to steal a cell phone
from the deceased, who reported the
incident to a security guard.
An argument ensued between Mr Malgas and the security guard.
[6.]
According
to the plea-explanation of Mr McKenzie the security guard hit him,
and Mr Malgas then intervened and threatened to stab
the guard.
He too was hit by the guard. The appellant’s
plea-explanation, however, made no mention of anybody
being hit.
According to the appellant’s plea-explanation there had been an
argument between Mr Malgas and the security
guard, who wanted to stab
each other
[3]
, and the appellant
then intervened and stopped them. This difference in the two
versions was never cleared up.
[7.]
It was common cause,
however, that the appellant, Mr Malgas and Mr McKenzie had then left
and gone to a park, where they smoked
dagga and mandrax.
[8.]
At this point again,
however, there is a difference in the versions of Mr McKenzie and the
appellant. According to Mr McKenzie
they had been sitting there
when they noticed the deceased walking past in the company of another
man. Mr Malgas called the
deceased and when he came closer, Mr
Malgas stabbed him. The appellant’s version was also that
Mr Malgas had been the
first one to attack the deceased by stabbing
him, but the appellant made no mention of anybody walking with the
deceased and according
to the appellant’s plea-explanation the
stabbing by Mr Malgas happened after Mr Malgas had approached the
deceased and after
an argument had then ensued between the deceased
and Mr Malgas about the earlier events at the tavern.
[9.]
According to both
plea-explanations the appellant then hit the deceased with a bag of
empty bottles, took Mr Malgas’s knife
and, while Mr McKenzie
was hitting the deceased with a wheel spanner, stabbed the deceased
more than once. At some stage
thereafter, and apparently after
the deceased had moved away from him, the appellant followed him and
stabbed him again.
Although the deceased had also suffered
blunt force trauma the cause of death was noted as multiple stab
wounds.
[10.]
The reason advanced by
the appellant, in his plea-explanation, for his attack on the
deceased, was that the deceased had fought
with his friends. It
does not appear from his plea-explanation when that would have
happened.
[11.]
The
murder count merely made reference to section 51 of the
Criminal
Law Amendment Act
[4]
,
without referring to the specific provisions of that section which
the prosecution intended to rely upon when it came to sentence
[5]
.
In the summary of substantial facts accompanying the indictment,
however, it was stated that the case for the prosecution
would be
that the attackers had acted in common purpose, which would in itself
of course have made the prescribed sentence of life
imprisonment
applicable. It can therefore safely be assumed that the
appellant’s legal representative had advised him
of the
applicability and risk of the prescribed sentence of life
imprisonment before he pleaded to the charge of murder.
[12.]
The court
a
quo
, however, found
that the murder had been premeditated. This finding, in turn,
was apparently based on a finding that the
appellant, Mr Malgas and
Mr McKenzie had been “
involved
in a conspiracy of stealing cell phones
”
.
[13.]
That
there had been a conspiracy to steal was part of the plea-explanation
of Mr McKenzie, but not of the plea-explanation of the
appellant.
In any event, that they had been in a conspiracy to steal cell phones
could never justify the inference that their
conspiracy had included
a plan to kill their victim/s. Even a common purpose to assault
may have come into existence spontaneously,
and must be distinguished
from a conspiracy or a plan
[6]
.
[14.]
In fact, the contents
of both plea-explanations militate against the existence of
premeditation, let alone a conspiracy or a plan,
to kill the deceased
14.1
McKenzie did not even have the direct intent to kill. The
presence of a direct intention
to kill would not necessarily justify
an inference of premeditation
[7]
.
14.2
The appellant’s plea-explanation in fact militates against
premeditation. He
stated that only Mr Malgas initially
approached the deceased and that Mr Malgas and the deceased had then
become involved in an
argument. Mr Malgas, according to him,
had then produced a knife and it was only when Mr Malgas had then
stabbed the deceased
that the appellant and Mr McKenzie had joined in
the attack on the deceased. On the appellant’s version Mr
Malgas had
been the only one of them with a knife. The
appellant had only a bag with empty bottles in his possession
initially.
14.3
In neither plea-explanation is there so much as a suggestion that any
of them had expected
the deceased to walk past the park where they
were smoking mandrax and dagga.
[15.]
It appears that the
appellant had drunk beer at the tavern, although it does not
appear how much. As already mentioned
the appellant and his
friends then proceeded to smoke dagga, with a mandrax tablet.
[16.]
The appellant, in his
plea-explanation, stated that he was “
under
the influence of alcohol and the drugs, dagga and mandrax
”
,
but he “
still
knew what (he) was doing
”
.
[17.]
In considering sentence
the court
a quo
found that drugs and alcohol had played a role in the commission of
the offence, but that “
substances
are not on their own mitigating factors
”
.
Reference was made to the fact that the appellant had in his plea
admitted that he had known what he was doing, and it was,
apparently
because of that, found that there was no evidence that the
appellant’s thinking had been impaired.
[18.]
In arriving at this
conclusion the court
a
quo
, with respect,
apparently lost sight of the undisputed statement that the appellant
had been “
under
the influence
”
of
the alcohol and drugs. The fact that the appellant knew what he
was doing, would not detract from this. It would
mean only that
he admitted having been criminally accountable at that stage.
[19.]
The
mere fact that the appellant had been drinking and using drugs would
in itself have raised the question whether it did not possibly
play a
role in the commission of the crime. As it was put in
S
v M
[8]
at
29h, “
Liquor
can arouse senses and inhibit sensibilities. It is for the State to
discount it as a mitigating factor, to show that it did
not
materially affect the appellant's behaviour”
[9]
.
[20.]
Here,
however, the evidence went much further. The undisputed fact
that the appellant had been “under the influence
”
is
irreconcilable with the finding that the appellant’s thinking
had not been impaired at all. Being under the influence
necessarily implies impaired thinking. It is just a question of
to what extent, and it is to my mind clear that what the
appellant
tried to convey was that, although his thinking had been impaired, it
had not been impaired to such an extent that he
had not known what he
was doing
[10]
.
[21.]
It must also not be
lost sight of that the prosecution had accepted the appellant’s
factual version and had confirmed that
it was in fact in accordance
with the information in the police docket.
[22.]
The court
a
quo
made reference
to the fact that the appellant had “
a
previous record
”
,
without apparently viewing that conviction in context. The
appellant had in 2010 been convicted of theft committed on August 29,
while the present completely unrelated offence was committed on
5 December 2012. The appellant therefore, at the age
of
27 years old, had no previous conviction involving physical
violence.
[23.]
The appellant’s
undisputed declaration of remorse in his plea-explanation, was
validated when it was put on record by the
prosecutor that he had
from the outset cooperated with the police, and had in fact made a
formal confession. Although the
trial Judge considered this to
be indicative of remorse, the judgment is silent about what role, if
any, this had played in arriving
at the conclusion that there were no
substantial and compelling circumstances justifying a lesser sentence
than life imprisonment.
[24.]
The court
a
quo
found that the
deceased had been killed for having reported the attempted theft to
the security guard, and made no mention of any
argument between the
deceased and Mr Malgas. There was no evidence that the deceased
was killed for making a report to the
security guard. There was
also no basis for the finding that the appellant and his friends had
“
caught up
”
with the deceased on his way home.
There was no evidence that the deceased had been on his way home.
Insofar as the
words “
caught
up
”
would suggest
that the appellant and his friends had followed the deceased when he
left the tavern, there was also no evidence to
this effect before the
court
a quo
.
There was, as already mentioned, not even an indication that the
appellant and his friends had been expecting the deceased
to walk
past them where they were sitting in the park. These
misdirections probably also led to the eventual erroneous finding
that the murder had been premeditated.
[25.]
What is aggravating is
the clearly relentless attack on an apparently unarmed deceased.
The appellant and his friends outnumbered
him and even when the
deceased must already have been seriously wounded, if not mortally,
the appellant followed him and stabbed
him again.
[26.]
The appellant admitted
having had the direct intent to kill the deceased.
[27.]
The deceased had been
completely within his rights to report the criminal actions of the
appellant and his friends to the security
guard, and even the
indirect link between that and the attack on him must certainly be
regarded as reprehensible.
[28.]
On the other hand it
must be kept in mind that the attack was impulsive, and would not
have occurred had fate not led the deceased
past the very spot where
the appellant and his friends, including the clearly aggressive and
armed Mr Malgas, were sitting.
The argument between the
deceased and Mr Malgas, and the fact of Mr Malgas attacking the
deceased, clearly triggered the appellant
to join his friend in that
attack. Mr Malgas played a vital role. Whether he had
called the deceased or had simply
approached the deceased himself,
the attack had clearly been triggered by Mr Malgas confronting the
deceased.
[29.]
In my view the
mitigating factors of the impulsive nature of the attack, the
appellant’s state of sobriety, the absence of
relevant previous
convictions, the influence and role of Mr Malgas and the sincere
remorse on the part of the appellant outweigh
the aggravating
circumstances and constitute substantial and compelling circumstances
justifying a lesser sentence than life imprisonment.
[30.]
This
court is in a position to impose sentence afresh with the information
available on record. In doing so, it is kept in
mind that the
bench mark sentence
[11]
would
remain life imprisonment.
[31.]
It is also kept in mind
that the appellant had spent approximately 11 months in custody
awaiting trial.
[32.]
Mr
V Z Nel, counsel for the appellant, referred to the facts and
sentences in
Director
of Public Prosecutions, North Gauteng : Pretoria v Gcwala and
Others
[12]
,
S
v Nemutandani
[13]
and
S
v Malgas
[14]
and suggested a sentence of 20 years imprisonment. In my view
this would indeed be an appropriate sentence in the circumstances.
[33.]
In the premises the
following orders are made:
1.
THE SENTENCE OF
LIFE IMPRISONMENT IS SET ASIDE AND SUBSTITUTED WITH A SENTENCE OF 20
YEARS IMPRISONMENT, ANTEDATED TO 22 NOVEMBER
2013.
2.
A COPY OF THIS
JUDGMENT MUST BE FURNISHED TO MR NEO ELLIOT MCKENZIE, AND TO MS
SNYDERS, THE ATTORNEY WHO HAD REPRESENTED MR MCKENZIE
AT THE TRIAL.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
______________________
C
C WILLIAMS
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
______________________
M
MAMOSEBO
JUDGE
NORTHERN
CAPE DIVISION
For the
appellant:
ADV VZ
NEL
(Legal
Aid, South Africa)
For the
respondent:
ADV CG JANSEN
(Office
of the Director of Public Prosecutions, NC)
[1]
Compare
S
v Kgosimore
1999 (2) SACR 238
(SCA) para [10];
S
v BF
2012 (1) SACR 298
(SCA) para [7]
[2]
Compare
S
v PB
2013 (2) SACR 533
(SCA) para [20];
S
v GK
2013 (2) SACR 505
(WCC) para [7]
[3]
Which
would imply that the security guard had also produced a knife.
[4]
105 of
1997
[5]
Compare
S
v Bhadu
2011 (1) SACR 487
(ECG) para [3];
S
v Mabaso
2014 (1) SACR 299
(KZP) paras [81] and [84]
[6]
“
What
constitutes 'premeditated or planned' murder was described as
follows in the full bench appeal,
S
v RAATH
2009 (2) SACR 46
(C) at p. 53 par. [16]:
‘
Clearly
the concept suggests a deliberate weighing-up of the proposed
criminal conduct as opposed to the commission of the crime
on the
spur of the moment or in unexpected circumstances. There is,
however, a broad continuum between the two poles of a murder
committed in the heat of the moment and one which had been conceived
and planned over months or even years before its execution...
Only
an examination of all the circumstances surrounding any particular
murder, including not least the accused's state of mind,
will allow
one to arrive at the conclusion as to whether a particular murder is
'planned or premeditated'. In such an evaluation
the period of time
between the accused forming the intent to commit the murder and
carrying out this intention is obviously of
cardinal importance but,
equally, does not at some arbitrary point, provide a ready- made
answer to the question of whether
the murder was 'planned or
premeditated'.
":
S
v Radebe
2011 JDR 0926 (FB) para [24]
[7]
“
Dolus directus
and premeditation/preplanning are not synonymous. While
premeditation obviously results in
dolus
directus
, the converse
is not true. That is clear from the case law.”
S
v Radebe
,
supra
,
para [23]
[8]
1994 (2)
SACR 24 (A)
[9]
Compare
also
S
v Louw
(CA & R 113/2007)
[2008] ZANCHC 2
(8 February 2008) para [9]
[10]
Had his
thinking been impaired to that extent, he would not have been
criminally accountable, at least not as far as the common
law crime
of murder is concerned (Compare section 1 of the
Criminal
Law Amendment Act
,
1 of 1988)
[11]
S v
Malgas
2001
(1) SACR 469
(SCA) para [25]
[12]
2014 (2)
SACR 337 (SCA)
[13]
2014 JDR
1898 (SCA)
[14]
2001 (1)
SACR 469
(SCA)