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[2016] ZAKZPHC 15
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Madondo v S (AR7/2015) [2016] ZAKZPHC 15 (9 February 2016)
IN THE HIGH
COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
NOT REPORTABLE
CASE NO: AR7/2015
In the matter
between:
VUSI ISRAEL
MADONDO
APPELLANT
and
THE STATE
RESPONDENT
Coram
: Gorven, Seegobin et Olsen JJ
Heard
: 27 January 2016
Delivered
: 9 February 2016
ORDER
On appeal
from the KwaZulu-Natal Division of the High Court, Pietermaritzburg
(Barnard AJ, sitting as a court of first instance):
The
appeal against sentence is dismissed.
JUDGMENT
SEEGOBIN J
(Gorven et Olsen JJ concurring):
[1] This is
an appeal against sentence. The appellant was indicted before
Barnard AJ in the High Court, Pietermaritzburg,
on ten (10) counts.
At the conclusion of the trial he was convicted on three (3) counts,
viz on count 2, he was convicted
of robbery with aggravating
circumstances, on count 3, of murder and on count 4 of attempted
murder. The nature of these
offences brought the matter within
the purview of s51 of the Criminal Law Amendment Act 105 of 1997 (the
Act) which prescribes
minimum sentences for certain serious offences
unless substantial and compelling circumstances were found to exist.
Having found
that no substantial and compelling circumstances existed
which warranted the imposition of lesser sentences than those
prescribed
by the Act, for the offences in question, the trial court
imposed a sentence of 15 years imprisonment on count 2, life
imprisonment
on count 3 and five years’ imprisonment on count
4. The present appeal is with leave of the court
a
quo
.
[2] On behalf
of the appellant it was contended that the sentences imposed by the
court
a quo
induce a
sense of shock and are grossly inappropriate in the circumstances of
this case. It was argued that the court
a
quo
failed to attach sufficient weight to the
following personal circumstances of the appellant, viz (a) that he
was 25 years old when
the offences in count 2 was committed and 26
years old when those in counts 3 and 4 were committed, (b) that he
was self-employed
earning an amount of R2000.00 per month, (c) that
he was single with two children aged 13 and 10 years respectively and
who were
supported by him, (d) that his highest level of education
was matric, and (e) that he is HIV positive and also suffers from
meningitis.
It was submitted that the court
a
quo
should have found substantial and
compelling circumstances by virtue of the fact that the appellant was
a first offender, that
he was HIV positive and suffering from
meningitis.
[3] The
State, on the other hand, submitted that the sentences are not unduly
harsh nor are they shockingly inappropriate.
It further
submitted that there was nothing in the personal circumstances of the
appellant (as outlined above) which amount to
substantial and
compelling circumstances. It contended that although the trial
court remarked that the appellant had favourable
personal
circumstances, it correctly found that these had to yield to the
seriousness of the offences committed.
[4] I do not
consider it necessary to deal in any great detail with the evidence
on the specific counts. I believe, however,
that one needs a
brief backdrop in order to appreciate why the court
a
quo
considered the respective sentences to be
appropriate in the circumstances.
[5] The
incident involving the robbery with aggravating circumstances on
count 2 occurred during the evening of 22 December 2005
at a house in
the Mpolweni area in the district of New Hanover. The
complainant Mr Cebo Gasa testified that he operated a
spaza shop from
one of the rooms in the house. On the evening in question he
was in the company of one
Zakhele
and
Mlondozi
.
They had already closed up the house and the shop and were preparing
for bed when someone knocked on the door saying that
he wanted to buy
something. When Mr Gasa went to open the door it was suddenly
pushed open and two persons entered.
One of them was armed with
a firearm and the other with a knife. Their faces were covered
with balaclavas. The person
armed with the firearm grabbed hold
of Mr Gasa and demanded money and airtime. When Mr Gasa
responded that they did not have
any of these items, other assailants
were called in from outside. In the meantime Mr Gasa was being
strangled and his companions
Zakhele
and
Mlondolozi
were
instructed to lie under the bed. The other assailants who
entered the house also had their faces covered with balaclavas.
At some point Mr Gasa managed to break loose from his attackers.
He ran to the main house to sound the alarm.
[6] The
assailants stole a large quantity of cigarettes from the spaza shop
and fled. Later Mr Gasa and his companions found
packets of
cigarettes lying both on the inside and on the outside of the
premises. These were shown to the police.
It was from one
of these packets that a fingerprint belonging to the appellant was
uplifted. Save for alleging that his fingerprint
may have been
planted there by the police, the appellant could offer no other
explanation of how his fingerprint would have ended
up on a cigarette
packet which was found on the floor of the tuck-shop after the
robbery was committed.
[7] As far as
the offences on counts 3 and 4 are concerned these were committed
during the late afternoon of 19 November 2006 at
a tavern in Sobantu
in the district of Pietermaritzburg. The evidence established
conclusively that it was the appellant
and another male person who
entered the tavern and fired numerous shots at the deceased in count
3 killing him instantly.
The complainant in count 4, who was in
the company of the deceased and sitting close to him at the time, was
also struck and injured
when he tried to flee. The trial court
further found on the evidence that the appellant and his co-assailant
had first entered
the tavern in order to ensure that the deceased was
present. They then left the tavern and within a short time they
re-entered
armed with firearms and opened fire on the deceased.
The trial court concluded that the appellant and his co-assailant
exhibited
a common purpose to kill the deceased in count 3 and that
they were reckless as to whether or not anyone else who was present
at
the tavern at the time would be killed or injured in the process.
[8] In
imposing the prescribed minimum sentence of 15 years on count 2, the
trial court reasoned that the offence was an extremely
serious one.
It considered that the complainants were doing their best to operate
a simple business, namely, a tuck-shop
in order to generate an
income, only to be attacked in the privacy of their home, have
firearms pointed at them and be manhandled
and bullied by armed
assailants including the appellant.
[9] As far as
the sentences on counts 3 and 4 are concerned, the trial court found
that the killing of the deceased was pre-meditated
and appeared to be
a revenge attack of some sorts. The photo album (Exhibit “A”)
showed that there were thirteen
spent cartridges found on the scene.
According to the post-mortem examination report which was admitted by
the defence, the
deceased had died of multiple gunshot wounds to his
head and body. The trial court found, correctly in my view,
that it was
simply incredible that more people did not lose their
lives. It was clear that the appellant and his co-assailant had
shown
a complete disregard for human life and were reckless as to
whether or not other patrons frequenting the tavern at the time would
also be injured or even killed.
[10] In
deciding the issue of substantial and compelling circumstances the
trial court adopted the approach set out by Nugent JA
in the matter
of
S v Vilakazi
[1]
in which the learned Judge of appeal said the following at paragraph
[15]:
“It is clear
from the terms in which the test was framed in
Malgas
and
endorsed in
Dodo
that it is incumbent upon a Court in every
case before it imposes a prescribed sentence to assess upon a
consideration of all the
circumstances of the particular case,
whether the prescribed sentence is, indeed, proportionate to the
particular offence.”
[11] In light
of the above the trial court then proceeded to carefully consider the
circumstances surrounding the commission of
each of the offences set
out above. In respect of the robbery conviction on count 2, it
reasoned that the appellant had shown
a complete lack of respect for
the property and well-being of others and that the prescribed
sentence was, indeed, proportionate
to the particular offence.
As far as the convictions on counts 3 and 4 are concerned, it
considered that society needed to
be protected from a person who
behaves in a manner as the appellant did in this case. It
accordingly found that the appellant
had failed to prove the
existence of substantial and compelling circumstances which would
have justified a legitimate deviation
from the prescribed minimum
sentences.
[12] In my
view, the above approach and reasoning of the trial court cannot be
faulted in any way. It is clear that the appellant
showed a
blatant disregard for people’s lives and property. I am
according not persuaded that the sentences imposed
by the trial court
are unduly harsh or shockingly inappropriate. In the result,
the appeal against sentence falls to be dismissed.
ORDER
[13] The
order I make is the following:
The
appeal against sentence is dismissed.
________________
________________
________________ I agree
GORVEN
J
OLSEN J
Date of Hearing
: 27
January 2016
Date of Judgment
:
9
February 2016
Counsel for Appellant
:
Mr EX
Sindane
Instructed by
: Justice
Centre, Pietermaritzburg
Counsel for Respondent
:
Mr JM
Khathi
Instructed
by
: The
Director of Public Prosecutions
Pietermaritzburg
[1]
2009(1) SACR 552 (SCA).