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[2016] ZAGPPHC 82
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Mohammed v S (A340/15) [2016] ZAGPPHC 82 (22 January 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORJA)
22/01/2016
APPEAL
CASE NO: A340/15
IN
THE MATTER BETWEEN
ABDUL
MOHAMMED Appellant
and
THE
STATE Respondent
JUDGMENT
LEGODI
J,
HEARD
ON: 05 DECEMBER 2015
JUDGMENT
HANDED DOWN: 22 JANUARY 2016
[1]
This is a criminal appeal against a sentence of imprisonment on a
charge of murder, attempted murder, unlawful possession of
firearm
and ammunitions and a recommendation that the appellant should not be
considered for parole until he had served 30 years
of the 40 years
imprisonment imposed on the murder charge.
[2]
On 26 September 1997 the appellant Mr Abdul Mohammed was sentenced in
the High Court Pretoria (as per Grobbelaarr J) to 40 years
imprisonment on a charge of murder, 10 years on a charge of attempted
murder, 3 years on a charge of unlawful possession of a firearm
and 1
year on a charge of unlawful possession of ammunitions in
contravention of the provisions of the Fire Arms Control Act no.
of
60 of 200. It was ordered that the other sentences were to run
concurrently with the 40 years imprisonment on the charge of
murder.
It was further recommended that the appellant should serve 30 years
of the 40 years imprisonment before being eligible
for parole.
[3]
This appeal was with the leave of the Supreme Court of Appeal granted
on 8 August 2014. The appellant was convicted on the above
mentioned
charges on the 26 September 1997. The circumstances under which the
offences were committed are succinctly set out in
the judgment by the
court
quo.
[4]
Starting with the appellant's version, together with the deceased,
were members of a gang called BAD BOYS. The deceased allegedly
ordered the appellant to kill one person by the name of Chris
Pietersen. When the appellant refused, the deceased threatened him
with death.
[5]
On one occasion, the deceased hit the appellant on the back of his
head with a firearm. He reported the matter to the police
and the
deceased was arrested and charged with attempted murder. The deceased
after his arrest in Mamelodi and on their way to
court threatened the
appellant with death, telling him that he will not see the sun rise
the following day as he would be killed
by other people or by the
deceased himself.
[6]
On Monday 7 October 1996 the appellant was to attend court at
Magistrate's court Pretoria. He was scared to attend court due
to the
threats made by the deceased. He told one of his friends about the
threats and as a result he was accompanied to court by
about four
people. He started at court 7 and thereafter proceeded to court 4
where he was supposed to appear on another charge
together with the
deceased. At court 4 they found the deceased together with a group of
about nine to ten people including women.
The deceased and one
Michael Isaacs stood up where they were seated and then approached to
where the appellant was. All other men
who were in the deceased's
company followed the appellant. As they were approaching, the
deceased moved his right hand towards
his right back pocket. The
appellant thought the deceased was pulling out a fire arm to shoot
him. The appellant then pulled out
his fire arm and pointed it at the
deceased. The deceased however moved forward towards the appellant
still with his hand at his
right back pocket. The appellant then
fired a shot at the deceased at a distance of about four or five
paces away. The deceased's
hand was still at his back. The appellant
fired the second bullet as the deceased was still standing in-front
of him. The other
people who were with the deceased started to run
away. The appellant fired the third bullet at the deceased. The
appellant then
ran away. He fired further shots at the deceased as he
was moving away from him. He saw the deceased falling down after he
had
fired the last shot.
[7]
The appellant's version was rejected by the trial court, in my view,
correctly so. The appellant was convicted on the following
set of
facts: On 7 October 1996 the deceased was waiting at Court 4 of
Magistrate's Court Pretoria when the appellant approached
with a
group of people. Without much ado, the appellant shot at the
deceased. The deceased's friend was also shot. The appellant
then run
away. He was later arrested, charged, convicted and sentenced as
indicated in paragraph 2 of this judgment.
[8]
The trial commenced and concluded before the
Criminal Law Amendment
Act 105 of 1997
came into operation. Therefore the court a
quo
in
sentencing the appellant exercised its discretion. The issue at hand
is whether the trial court correctly exercised its discretion.
The
discretion must be exercised in a judicial manner and not
capriciously or upon any wrong principle. If it appears that a court
has not exercised its discretion judicially, or that it has been
influenced by wrong principles or misdirection on the facts or
that
it has reached a decision which could not reasonably have been made
by a court properly directing itself to all the relevant
facts and
principles, the court of appeal may interfere with that exercise of
discretion. A court of appeal will be slow to interfere
with an
exercise of discretion unless it was exercised improperly.
[9]
It remains an established principle of our Criminal Law that
sentencing discretion lies pre-eminently with the sentencing court
and ought to be exercised judicially and in line with established
principles governing sentencing.
[1]
Decided cases on sentencing provide guidelines and not
straightjackets
[2]
. Each case
has its own factual matrix and judicial fixation. Past sentencing
patterns as absolute precedents would be in conflict
with the
principle of individualization, and ultimately, the right to a fair
trial.
[3]
However,
individualization of sentence invariably gives rise to the need for a
wide discretion in sentencing although the guidance
of past decisions
by High Courts may lead to some degree of consistency
[4]
.
[10]
A wide discretion is allowed to a trial court in the assessment of
punishment except in cases where a minimum sentence is set
by statute
under the
Criminal Law Amendment Act 105 of 1997
.
[11]
In exercising its discretion, the court must consider the triad as
enunciated in S
v
Zinn
1969(2) SA 537 (AD) at 540G, which consists of:
(a) The nature, magnitude
and effect of the crime itself;
(b) The interests of
society; and
(c) The interests of and
circumstances surrounding the offender.
[12]
The rule is that an appeal court must consider the issue of sentence
on facts which were in existence when the sentence was
originally
imposed and not according to new circumstances. This however is not
invariable and may be departed from where there
are exceptional and
peculiar circumstances
[5]
.
[13]
In his written heads of argument, counsel for the respondent (the
State), inter alia, argued:
"21
Since about 1992,
sentences of more than 25 years have become more common and sentences
of up to 40 years imprisonment were quite
really imposed for very
serious crimes.
Much longer sentences have also been imposed
as well as sentences of longer than the offender's life expectancy.
Last mentioned were
viewed as unconstitutional because it could be cruel, inhumane or
degrading. With the abolition of the death
penalty, those crimes
which previously would have resulted in the imposition of the death
penalty were now punished with long terms
of imprisonment, many of
which were inevitably life imprisonment. The development of our law
has subsequently been overtaken by
the minimum sentences legislation.
Vide: Guide to Sentencing in South Africa p222-223 and case law
referred to".
[14]
Furthermore, counsel for the respondent in his written heads referred
us to case law where sentences for a long period were
imposed for
serious crimes. For example, in
S v Nkosi
1993 (1) SACR 709
(A), a total of 122 years and six months imprisonment was replaced
with a sentence of life imprisonment. In
S v Schoeman
1995 (1)
SACR 423
(T) the court remarked that any term of imprisonment shorter
than an accused's life expectation could also be a suitable and just
sentence. The term of 30 years' imprisonment alone for murder,
imposed in that matter on appeal, was not viewed as shockingly
inappropriate and the appeal against sentence of 30 years on a charge
of murder was dismissed.
[15]
On the other hand, in the matter of
S v Mhlakaza
&
Others
1997 (1) SACR 515
(SCA) an effective sentence of 47 years'
imprisonment on one of the appellants was reduced to 38 years'
imprisonment. The effective
sentence of the other appellant which was
38 years imprisonment was not interfered with. Having quoted other
case law where longer
periods of imprisonment were imposed, two
further submissions were made as follows on behalf of the respondent:
"32.
The appellant can come
into consideration for parole after serving half of his sentence,
which is 20 years' imprisonment. At that
stage he will be about 49
years old.
33.
It is submitted that
it cannot be said that the trial court committed any irregularity or
misdirection during evaluation of the
sentence or that the sentence
is disturbingly inappropriate".
[16]
Starting with the latter submission it is important to restate the
fact that on appeal against sentence, the court of appeal
should be
guided by the principle that punishment is pre-eminently a matter for
the discretion of the trial court and should be
careful not erode
that discretion.
[6]
A sentence
should only be altered if the discretion has not been judicially and
properly exercised. The test is whether the sentence
is vitiated by
irregularity, misdirection or is so disturbingly inappropriate that
it induces a sense of shock.
[17]
The trial court during sentencing, in my view considered all relevant
factors including the circumstances under which the offences
were
committed, in particular, with reference to the murder charge.
Furthermore, the trial court was also willing to accept the
fact that
the appellant might have believed in the threats that he would be
killed by the deceased, but warned that he had chosen
the wrong
method and place to address his fears.
[18]
In its judgment during sentencing, the trial court expressed itself
in Afrikaans as follows:
"Ander aspek wat
ek oak nie buite rekening kan laat nie, is die plek waar die voorval
plaasgevind het. Wat die benadering van
die gewone mens aanbetref, is
die Landdroshof soos die staatsadvokaat direk uitgedruk het;
die
hart van 'n ordelike samelewing
.
Ek kan nie daarop
verbeter nie. Dit is 'n plek waar die gewone mens moet kan voorsien
dat geregtigheid sal plaasvind en nie al/eenlik
geregtigheid nie,
maar dat mense, lede van die publiek oak met gerustheid en veiligheid
soontoe kan gaan"
[19]
I tend to agree. Looking at the passage to court 4 where it all
happened, one can imagine the pandemonium and the scare that
would
have been caused to the members of the public. Someone being killed
in cold blood during daylight and fired into his body
several bullets
and walked out of the building with impunity, no doubt, would have
brought a chilling effect in the minds of those
who had witnessed a
movie- like dreadful happening. Many of those who were there would
have come to court to seek justice. Instead,
what they had witnessed
must have been the worst injustice of the century to them.
[20]
The father of the deceased was there and witnessed everything. The
deceased and the appellant were co-accused in a case where
they were
appearing together on 7 October 1996 at Magistrate's court Pretoria.
The case was postponed in the absence of the appellant
and a warrant
of arrest was authorized. While they were still at court 4, the
appellant and other four people approached. They
went straight to
where the deceased was seated on a bench and in a half circle, stood
in front of him. Without saying anything,
the appellant took out a
firearm and shot at the deceased. He fired the second shot into the
body of the deceased. At that stage,
the deceased stood up to run
away, but fell down. The appellant continued to pump bullets into the
deceased's body whilst the deceased
was lying on the floor. The
appellant came closer to the deceased and shot onto his head. The
last bullet was fired at a distance
of 40 centimeters. The other
person who was with the deceased was also shot at as he tried to run
away and this formed the subject
of the attempted murder charge.
[21]
All of the above would have come as a disappointment not only to
those who had witnessed the incident, but also those who might
have
heard about it. To go straight to where justice is sought and
expected to be carried out; and then commit such horrendous
crimes,
would have brought the administration of justice into disrepute. That
should never be allowed to happen, because it can
have the potential
to make people to take the law into their own hands. The appellant's
attitude also displayed the extent to which
he had no respect for the
rule of law. That of course is in the nature of people who get
themselves involved in gangsterism. The
only way of regaining the
respect and confidence in the criminal justice system in the
circumstances of the case, was to impose
a harsher sentence as the
trial court did.
[22]
The other factor which worried the trial court was the meticulous
planning in the commission of the offences. The trial court
explained
it as follows:
"Wat my verder
hinder in verband met die agtergrond is die klaarblyklike beplanning
wat hierdie oortreding vooraf gegaan het
en dit is die beplanning en
die sluheid waarmee die vuurwapen in die bepaalde omstandighede die
landdroskantoor binne gesmokkel
is.
U het k/aarblyklik
misbruik gemaak van die feit dat u ysters in u arm gehad het, wetende
dat dit op die metaa/verklikker opgete/
sou word
om
onder die
dekmantel van die ysters in u arm die vuurwapen dan binne te smokkel.
Die rede hoekom u op
die waarskynlikhede die Landdroskantoor van alle plekke uitgekies
het, is omdat dit normaa/weg moeilik is
om
'n vuurwapen daar
in te smokkel en dit sou meebring dat die oorledene dan ongewapen sou
wees en na a/le waarskyn/ikheid nie behoorlike
weerstand kon bied
nie".
[23]
There must have been a good reason for the commission of these
offences on this particular day and at this particular place
and I
think the trial court correctly described the motive behind the whole
incident as quoted above. The trial court rejected
the version of the
appellant that he thought the deceased was just about to shoot when
he shot at the deceased. The evidence in
my view was overwhelming
against the appellant. His disappearance after the shooting was not
consistent with a person who believed
that he had acted in the
defence of his life.
[24]
One is inclined to agree with the court a
quo
that the murder
of the deceased was pre-mediated and well planned. It was planned in
such a way that the deceased would obviously
have been unaware that
at the door of the court, where both of them were to appear would be
used by the appellant as the place
to end his life. You need a daring
and dangerous person to have such guts and the appellant displayed
himself to be that kind of
a person.
[25]
The appellant belonged to the Bad Boys gang. Any group of people
entering into a pact of unlawful activities, with respect,
has no
place amongst our communities. The trial court put it appropriately
this way:
"Die verdere
tragedie is dat hierdie optrede van u nou al toon in watter mate
bendes en mense soos u ans ordelike gemeenskap
met absolute minagtig
bejeen. Om 'n Janddroshof van a/le plekke uit te kies waar daar ta/le
onskuldige mense is,
om
hierdie tipe van optrede aan die dag
te le..Dit ek kan nie buite rekening bring nie.
...
U het 'n ander
vorm daarvan toegepas, 'n ander vorm van anargie waar u en lede van
'n bende die Landdroskantoor uitgekies het van
a/le plekke
om
hul/e geskille in op te Jos.
Die eerste tipe van
optrede dat verontregte mense die reg in hulle eie hande neem, lei
tot 'n vorm van anargie wat het nie toege/aat
kan word nie. Dit sal
beteken die einde van ans gemeenskap
. ..
Aan die ander kant as
bendes toegelaat word
om
hulle verskille in 'n Landdroskantoor
te begin besleg, toon dit nie al/eenlik hul/e minagting en gebrek aan
respek vir wet en orde
nie, maar dan kan ons maar so vining as wat
ons kan alma/ padgee uit hierdie land, want dan gaan daar niks van
ons geweenskap oorbly
nie".
[26]
It is in the nature of gangsters to harass people and have no respect
for the law. When the deeds of gangsters tend to take
the upper hand
in our society, it must be met with the might of the law through our
courts by imposing heavier sentences. Ordinary
members of the society
must see our courts as the upper guardian of the rule of the law and
not criminals. In that way, confidence
in the justice system is
maintained and the taking of the law into one's hands is diminished.
[27]
In the instant case, there was no reason for the appellant to take
the law into his own hands. He had reported the deceased
to the
police. He laid a charge of attempted murder against the deceased.
Instead of allowing the wheel of the law to take its
course, he
decided to be ahead of it and by so doing untimely brought forward
deceased's life to its end. That was descending into
anarchy and by
no means, can it be tolerated and allowed to happen.
[28]
The trial court was mindful of the fact that it did not have to
overemphasize the nature, magnitude and effect of the crime
itself
and the circumstances under which the offences were committed as set
out earlier in this judgment. It acknowledged the fact
that all
relevant factors ought to be considered equally, without
overemphasizing or less emphasizing the one against the other.
For
this, the trial court also considered the personal circumstances of
the appellant and took note of the fact that when the nature
of the
offence and interests of society are considered, the accused to a
certain extent is still in the background, but when he
as a culpable
human being is considered, the spotlight must be focused fully on his
person in its entirety, with all its facets.
As held in
S v Ou
Toit
1979 (3) SA 846
(A) at 857H-858B, he is not regarded with a
primitive desire of revenge, but with human compassion which demands
that extenuating
circumstances be investigated. The court a
quo
considered the personal circumstances of the appellant which were
put on record as follows: He was young man of about 28 years at
the
time of his sentencing. He was a first offender who had gone to
school up to standard 6. He was unmarried but was having a
girlfriend
who was five months pregnant at the time of his sentencing. He was
working as a mechanical technician earning R450 -00
per week. He was
arrested on 8 October 1996 and was in custody for about 11 months at
the time of sentencing. The trial court found
all of the above to be
mitigating in favour of the appellant.
[29]
The trial court also took the view that the fact that the appellant
was open with the court throughout the proceedings, that
he never
disputed the fact that he shot at the deceased and that the appellant
had problems with the deceased was something to
consider. Insofar as
the trial court might have considered this as a mitigating factor in
favour of the appellant, I share a different
view. The evidence
against the appellant was obviously overwhelming. The shooting took
place in full view of several people. The
deceased's father and the
complainant in the attempted murder charge were amongst the many
people who had witnessed the deceased
being killed in cold blood.
Therefore, his admission to the shooting cannot be attributable to
the appellant feeling remorseful
about what he did. Furthermore, the
fact that he had problems with the deceased was no justification to
act in the manner he did.
He knew exactly what to do. He had already
reported the deceased to the police and the deceased was arrested and
charged with attempted
murder. Instead of allowing the law to take
its course, he resorted to self help. That was aggravating
coupled with the planning
that accompanied the whole mission to kill
the deceased.
[30]
It is so that courts have emphasized that justice should be tempered
by the element of mercy and the concept of mercy has itself
been
subjected to a good deal of judicial scrutiny. In
V
1972 (3)
SA 611
(A) at 6140 Holmes JA held:
'The element of mercy,
a
hallmark of civilized and enlightened administration, should
not be overlooked, lest the court be in danger of reducing itself to
the plane of the criminal. . . The mercy has nothing in common with
soft weakness, or maudlin sympathy for the criminal, or permissive
tolerance. It is an element of justice itself'.
[31]
In considering an element of mercy, one should be guided by a sign of
contrition on the part of the accused person. The appellant,
whilst
acknowledging having killed the deceased, was steadfast that he
thought the deceased was pulling out a firearm to shoot
at him. He
was so persistent despite overwhelming evidence against him. That, in
my view, displayed the daring character in him
and unwillingness to
accept any wrong doing.
[32]
In S
v Van der Westhuizen
1974 (4) SA 61
(C) at 66 E-F, it was
held what mercy means in a criminal court is
"that justice
must be done, but it must be done with compassion and humility, not
by rule of thumb, and that
a
sentence must be assessed not
callously or arbitrarily or vindictively, but with due regard to the
weaknesses of human beings and
their propensity for succumbing to
temptation ... But it must also be borne in mind that consideration
of mercy must not be allowed
to lead to the condonation or
minimization of serious crimes".
[33]
What the appellant did was not just succumbing to temptation, but was
also a clear dishonesty and show of force knowing very
well that the
deceased in all probabilities was unarmed as he would not have passed
through the security check-out point without
a weapon or firearm
being detected, unlike the appellant who managed to fool the security
guards into believing that what activated
the detector was not a
firearm. That was the kind of a person the trial court had to deal
with. Sentencing the appellant to 40
years' imprisonment on the
murder charge, taking into account the applicable case law at the
time; and also considering the fact
that the prescribed minimum
sentence in terms of Act 105 of 1997 was not in place at the time,
cannot be viewed as inducing a sense
of shock, inappropriate or
amounting to improper exercise of discretion.
[34]
The purpose of sentencing is not to satisfy or meet public opinion,
but to serve and promote the public interest, and in my
view, to
promote confidence in the criminal justice system
[7]
.
Public interest must be an ever present concern
[8]
.
The trial court in imposing the sentences as it did, also considered
this factor acknowledging that the society needs protection.
In S
v
Mkhize1 973
(3)
SA 284 Miller J stated:
"While the public
is entitled to protection against any one individual, one cannot
sacrifice the individual entirely in offering
that protection to it.
I think the most the court can do consistently with justice is to
protect the public for as long
a
period as seems commensurate
with the accused's deserts".
[35]
I am unable to find that the trial court in sentencing the appellant
to 40 years' imprisonment on the murder charge did not
consistently
with justice, seek 'to protect the public for as long a period as
seems commensurate with the appellant's deserts'.
Punishment serves
the public interests by discouraging a repetition of the offence by
the offender and the perpetration of similar
offences by others. In
the present case, both the deceased and the appellant were members of
Bad Boys gang. They had followers
or co gangsters in pursuit of
common criminal activities. It became necessary thereto to discourage
those other members of
the gang who were with the appellant or
working with the appellant including those who associated themselves
with the deceased
that crime does not pay. Imposing a sentence of 40
years' imprisonment cannot be said to have gone beyond proper
judicial exercise
of discretion. The appeal should therefore fail.
[36]
The court a
quo
also made a recommendation as follows:
"Dit word verder
aanbeveel dat u 'n periode van mistens 30 jaar gevangenisstraf moet
uitdien alvorens u vir parool oorweeg
word
..."
[37]
In
Zona v The State
20182/2014
[2014] ZA SCA 188
(27 November
2014), Theron JA stated:
"[3] The fixing
of
a
non-parole period constitutes an increase in the penalty
imposed on
a
convicted person, and thus cannot operate
retrospectively. The penalty to which the convicted person is subject
is that applicable
at the time of the commission of the relevant
crime, and not the date of either conviction or sentence. This was
confirmed by this
court in Mchunu v the State where Willis JA held:
'As has been
emphasized in R v Mazibuko, it is an ancient, well-established
principle of our common law that the liability for
a
penalty
arises when the crime is committed and not when
a
person is
either convicted or sentenced. An increase in penalty (which the
fixing of
a
non parole period is) will, therefore,
ordinarily not operate retrospectively in circumstances where that
additional burden
did not apply at the time when the offence was
committed
...
The
crimes in question were committed
before the coming into operation of s 2768 of the Act. There are no
special circumstances, recognized
in our law, which would permit
a
departure from the general principle that sets its face against
the retrospective operation of
a
penalty. The order of the
court below fixing
a
period of time before the appellants may
be released on parole was therefore incorrectly made'.
[38]
Just as in
Zona supra,
the offences in the present case were
committed when there was no legislative provision for a court to
stipulate a non-parole period.
The parole was within the discretion
of the executive in terms of sections 22A and 65 of the Correctional
Services Act 9 of 1959.
In terms of section 22A a prisoner may earn
credits amounting to no more than half of the period of imprisonment.
On the other
hand, in terms of section 65(4)(a) a prisoner serving a
determinate sentence shall not be considered for parole until he or
she
has served half of the term of the imprisonment and that the date
for consideration of parole can be brought forward by the number
of
credits earned.
[39]
In the present case, the appellant will be completing half of his 40
years imprisonment in 2017. The recommendation for non-parole
period
before the appellant had served 30 years imprisonment, could present
a problem or uncertainty to the prison authority which
might feel
obliged to consider the appellant's release on parole only in 2027
when the appellant shall have served 30 years of
his term of
imprisonment.
[40]
The Supreme Court of Appeal criticized the imposition of non-parole
periods. This appears to have caused the legislature to
enact section
2768 of the Criminal Procedure Act 51 of 1997 which deals with the
power of a court to determine a non-parole period.
The section became
operative on 1 October 2004. The offences in the present case were
therefore committed before the section became
operative. Theron JA in
paragraph [6] of
Zono's
case
supra
held:
"[6] In my view
the effect of the recent judgment of this court in Mchunu above,
renders any attempts to stipulate a non-parole
period in a matter
involving a crime committed prior to the coming into operation of s
2768, impermissible. In the absence of legislative
authority to do
so,
it appears that courts that sought to impose such a
non-parole period, as both the sentencing court and the full court in
this matter
did, misdirected themselves. In the circumstances this
court is obliged to set aside that imposition of
a
non-parole
period".
[41]
The court
a quo
seems to have accepted that the imposition of
non-parole period must sparingly be resorted to. The acknowledgement
of this seems
to have been founded on the fact that the officials of
Correctional Services Department are better placed to decide when a
particular
prisoner must be placed on parole. In its recommendation
for non-parole period the trial court stated:
"Die diskresie
berus nog aan die einde van die dag by die Departement van
Korrektiewe Oienste".
This
comment in my view did not do away with the recommendation which the
court a
quo
made. The 30 years non-parole period
recommendation stands. The period is just too long and has the
potential to interfere with
the Department's discretion to integrate
much earlier into the community a well behaved prisoner. As I said
earlier, the recommendation
for non-parole period was unnecessary and
could present a problem if allowed to stand.
[42]
As far as the other sentences are concerned the appellant was
sentenced to 10 years' imprisonment on the attempted murder charge,
3
and 1 years' imprisonment on the unlawful possession of a firearm and
ammunitions respectively. The complainant in the attempted
murder
charge was shot three times as he tried to run away from the
appellant at the time the appellant started shooting. The one
bullet
which got stuck underneath his right knee was taken out at the
hospital. He was also shot on his left toe and the one piece
of the
bullet remained stuck therein. The other bullet hit him behind his
left leg. The bullet remained stuck on his leg and could
not be taken
out except if his leg was to be cut. Having regard to all of this, 10
years' imprisonment imposed on the appellant
regarding the attempted
murder charge cannot be said to induce a sense of shock. I do not
think there is much to be said regarding
the 3 years and the 1 year
imprisonment for unlawful possession of firearm and ammunitions
respectively. The cumulative effect
of these sentences was minimized
by the order to have the sentences run concurrently with the 40
years' imprisonment on the murder
charge. There is no reason to
interfere with this order.
[43]
Consequently an order is hereby made as follows:
43.1. The appeal against
sentence imposed on the appellant in respect of all the charges is
hereby dismissed.
43.2. The recommendation
for non-parole period of 30 years is hereby set aside and the
appellant is entitled to be considered for
parole in accordance with
applicable legislative frame work.
43.3. The order for the
sentences on the attempted murder charge, unlawful possession of fire
arm and ammunitions to run concurrently
with the 40 years'
imprisonment on the murder charge is hereby confirmed and the
sentence is antedated to 27 September 1997 being
the date on which
the appellant was sentenced and started serving his sentence.
_________________________
M
F LEGODI
JUDGE
OF THE HIGH COURT
I
agree
____________________________________
W
R C PRINSLOO
I
agree
____________________________________
T
J RAULINGA
FOR
THE APPELLANT: LEGAL AID SOUTH AFRICA
FNB
Building
2
nd
Floor
206
Church Street
PRETORIA
012
401 9200
FOR
THE RESPONDENT: DIRCTOR OF PUBLIC PROSECUTIONS
PRETORIA
012
351 6700
[1]
See S v PB
2013 (2) SACR 533
(SCA) at para 19.
[2]
See S v D 1995 (I ) SACR 259 (A) at 260e.
[3]
See S v PB supra at para. 18.
[4]
See R v S 1958 (3) SA 102 (A).
[5]
See S v Karolia
2006 (2) SACR 75
(SCA) at 93c-h.
[6]
See S v Rabie 1975 (4) SA 855 (A).
[7]
See S v Mhlakaza & Another
1997 (1) SACR 515
(SCA) at 518 e-f.
[8]
See S v SM
2013 (2) SACR 1
11 (SCA) at para 56.