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[2016] ZAGPPHC 232
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Mathunjwa v S (A544/2015) [2016] ZAGPPHC 232 (26 February 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: A544/2015
DATE: 26 FEBRUARY 2016
In the matter between
KENNETH JABULANI
MATHUNJWA
.........................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT VAN OOSTEN J:
[1] The appellant was charged with and
convicted by this court (Matojane J) of murder. He was sentenced to
25 years’ imprisonment.
The learned judge a quo granted leave
to appeal against the sentence.
[2] The appellant pleaded guilty to the
charge. Except for the appellant’s statement in terms of s 112
(2) of the Criminal
Procedure Act 51 of 1977 (the statement), which
was confirmed by the appellant and placed before the court a quo, no
evidence was
led either on the merits or sentence. The facts and
circumstances that led to the murder, as set out by the appellant in
the statement,
constitutes the factual matrix of this matter (S v
Jansen 1999 (2) WSACR 368 (C)) and are the following. The deceased
was the appellant’s
girlfriend and they resided together in a
house, in Wesselton, Ermelo. On the 2 November 2017, at approximately
06h30, the appellant
prepared to go to work. The deceased requested
money from him to go to Secunda. He had R200 with him and he offered
to give it
to her. The events that occurred thereafter are described
in the statement as follows;
‘Sy het met my baklei en my
beskuldig dat ek geld met ander meisies gaan spandeer as sy weg is.
Ek het kwaad geword en die
oorledene aan haar keei gegryp en haar
gewurg en na ‘n rukkie haar agtertoe gestamp dat sy op die bed
beiand het. Ek het
werk toe gegaan.
After work, later that afternoon, the
appellant returned home and discovered that the deceased had died. He
left her like that and
went to his parents’ house in Dunonald.
He kept the incident secret. Five days later he returned home only to
find that the
deceased’s body was still on the bed and in a
advanced state of decomposition. He then proceeded to bury the body
in a hole
of one metre deep he had dug under the bed. The deceased’s
family repeatedly enquired as to her whereabouts but he simply
informed them that the deceased had gone to Secunda.
[3] The appellant was arrested on 20
December 2007 and on the same day made a confession before a
magistrate which was referred
to and confirmed by the appellant in
his statement. The confession however, is significantly at variance
with the version of the
appellant proffered in the statement. In the
confession he stated as follows:
Ek het Sipiwe doodgemaak. Ek het baie
van haar gehou. Die ding wat my baie kwaad gemaak het, is toe ek haar
soek, kon ek haar nie
kry nie. Dit was 2 November 2007, op ‘n
Vrydag oggend, ek het haar toe gekry, ons het nie ‘n rusie
gehad nier ek het
haar net gewurg. Sy sou die betrokke Vrydag na
Secunda gaan om die kind se kiere by haar suster te kry. Ek het
gedink as sy soontoe
gaan, sai sy nie terugkom nie, dit is hoekom ek
haar wurg. Ek het haar toe begrawe. Dit is my storie.'
[4] On 21 December 2007 the appellant
pointed out the house where the incident had occurred as well the
grave in which he had buried
the body of the deceased resulting in
the discovery of the body of the deceased.
[5] The offence, it hardly bears
mentioning, is most serious. The trial court duly took cognisance
thereof as well as the appellant’s
personal circumstances. He
was 29 years old at the time of the offence and 33 years old when
sentence was passed. He was married
and no dependants. He left school
at standard 5 and thereafter was employed as a gardener He had a
clean record.
[6] On appeal counsel for the appellant
was confined to rely on the personal circumstances of the appellant,
which I have already
referred to, for the submission that the
sentence was ‘shockingly heavy and inappropriate’. The
appellant’s personal
circumstances were duly considered by the
court a quo.
[7] It is trite that sentencing remains
pre-eminently within the discretion of the sentencing court. In
Mokefa v The State
2012 (1) SACR 431
(SCA) para [9], Bosielo JA put
it thus:
This salutary principle implies that
the appeal court does not enjoy carte blanche to interfere with
sentences which have been properly
imposed by a sentencing court. In
my view, this includes the terms and conditions imposed by a
sentencing court on how or when
the sentence is to be served. The
limited circumstances under which an appeal court can interfere with
the sentence imposed by
a sentencing court have been distilled and
set out in many judgments of this Court. See S v Pieters
1987 (3) SA
717
(A) at 727F-H; S v Malgas
2001 (1) SACR 469
(SCA) para 12;
Director of Public Prosecutions v Mngoma
2010 (1) SACR 427
(SCA) para
11; and S v Le Roux & others
2010 (2) SACR 11
(SCA) at 26b-d.'
[8] This is a serious case of murder.
The appellant proffered conflicting versions as to the reasons for
his conduct. I am unable
to reconcile the versions. At best for the
appellant the vague and feeble reason for strangling the deceased,
referred to in his
statement, if accepted, did not at all justify his
actions. I am driven to conclude that the appellant has not revealed
the true
reason for the killing of the deceased and that there was,
in any event, little or no provocation or emotional disturbance. This
of course also brings to the fore reservations as to the genuineness
of his remorse in pleading guilty. The manner in which the
appellant
killed the deceased was most gruesome: death by strangulation takes
time to occur from which it can be inferred that
the deceased must
have suffered immense stress and agony. The appellant’s
indifference to the consequences of his conduct
is demonstrated in
him leaving the body of the deceased unattended for 5 days and
thereafter burying it in a shallow hole under
his bed,
[9] 1 am unable to find any
misdirections in the sentence imposed. By strangling and killing the
deceased the appellant acted in
a manner that is unacceptable in any
civilised society that ought to be committed to the protection of the
rights of ail persons,
including women. Intimate partner violence
remains alarmingly prevalent as a serious social problem in our
society and deterrent
sentences are called for (see Jimmy Sebone
Seemela v The State (20508/14)
[2015] ZASCA 41
(26 March 2015);
Kekana v The State (629/2013)
[2014] ZASCA 158
(1 October 2014)).
Against this background such mitigating factors as may exist in this
case, pale into insignificance when viewed
against the objective
gravity of the offence (S v Vilakazi
2012 (6) SA 353
(SCA) para
[58]). I am of the view that the sentence imposed is appropriate,
fair and proportionate to the offence the appellant
has been
convicted of.
[10] In the result the appeal is
dismissed.
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
I agree
HJ DE VOS
JUDGE OF THE HIGH COURT
I agree
DS MOLEFE
JUDGE OF THE HIGH COURT
COUNSEL FOR APPELLANT ADVK MOGALE
COUNSEL FOR RESPONDENT ADVAJ FOURIE
DATE OF HEARING 26 FEBRUARY 2016
DA TE OF JUDGMENT 26 FEBRUARY 2016