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[2016] ZAGPPHC 188
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Radebe v S (A105/2015) [2016] ZAGPPHC 188 (17 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
Number: A105/2015
DATE:
17 MARCH 2016
In the matter
between:
SIPHO MOSES
RADEBE
........................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT J ANSE
VAN NIEUWENHUIZEN J
[1] The appellant
was convicted of murder in the Regional Division of South Gauteng,
held at Benoni and sentenced to 15 years imprisonments.
[2] This appeal is
only against sentence.
EVIDENCE
[3] On 27 July 2013
between 10h00am and llh00am in the morning, the appellant visited the
Primary Care Clinic in Daveyton with his
wife who was pregnant at the
time. The clinic is situated in a shopping mall and the appellant
parked his vehicle outside the shopping
mall. Upon his return to his
motor vehicle, it appeared to the appellant that his motor vehicle
had been washed during his absence
which fact upset him. He noticed a
tin next to one of the tyres of his motor vehicle and kicked the tin,
which caused the contents
of the tin to spill.
[4] Shortly after
kicking the tin the appellant was accosted by the deceased and a
certain Pedro. Both the deceased and Pedro were
washing cars in the
parking lot where the appellant7s car was parked.
[5] The deceased and
Pedro was aggrieved by the fact that the contents of the tin spilled
when the appellant kicked it and an argument
ensued between the
appellant, the deceased and Pedro. From the evidence it appears that
the argument became heated resulting in
the appellant stabbing the
deceased 3 times with a knife in his neck and back. These injuries
caused the death of the deceased.
[6] The appellant
admitted that he stabbed the deceased and that the injuries caused
the death of the deceased, but maintained that
he acted in
self-defence. In substantiation of his defence, the appellant
testified as follows:
"As I wanted to
hit him with the fist he then took out a knife. When he took out a
knife Your Worship I managed to grab hold
of him with a knife.
(demonstration around the hand Your Worship). He still had his knife
on him. At that stage the other friend
Your Worship, who said I must
be beaten up was now closer.I managed to grab the hand Your Worship,
which had the knife and eventually
I managed to take the knife from
him. I took it and then I stabbed him with the knife. Then I realised
Your Worship that I made
a mistake. I then got inside the motor
vehicle, I drove to the police station. When I got to the police
station I made a statement
or statements were taken down. Then I was
kept in custody, kept in the cells."
[7] The appellant's
version was not accepted by the court a quo, which resulted in the
conviction on the murder charge.
SENTENCE COURT A
QUO
[8] In view of the
conviction on the aforesaid facts, the provisions of the Criminal Law
Amendment Act 105 of 1997 ("the Act")
and more specifically
section 51(2) (a) is applicable to the sentence to be imposed. The
section provides for a minimum sentence
of 15 years imprisonment in
the prevailing circumstances.
[9] The court a quo,
in a judgment consisting of four paragraphs, sentenced the appellant
to 15 years imprisonment without considering
whether substantial and
compelling circumstances, as contemplated in section 51 (3) of the
Act, exist that would justify a lesser
sentence.
GROUND OF APPEAL
[10] The appellant
submits that the court a quo erred in not having had regard to the
provisions of section 51(3) of the Act. I
agree and the appeal
against sentence must succeed.
APPROPRIATE
REMEDY
[11] Both Mr Mashuga
, counsel for the State and Ms Dube, counsel for the appellant agreed
that the record contains enough facts
to enable this court to
consider sentence afresh.
SENTENCE
REVISITED
Personal
circumstances
[12] The appellant
is a 40 year old male, married and has four minor dependants.
[13] The appellant
was gainfully employed at the time of the commission of the defence.
[14] The appellant
is a first offender for purposes of the crime he has committed.
[15] The appellant
is remorseful and had paid the burial costs of the deceased in the
amount of R4000,00.
Nature of crime
[16] The crime of
murder is no doubt very serious in nature. It is for the aforesaid
reason that the Legislator enacted the Minimum
Sentence Act. The
murder of the deceased was a senseless crime committed in
circumstances where there was no threat to the life
of the appellant
The appellant clearly lost his temper and in a fit of rage stabbed
the deceased to death.
Interests of the
community
[17] Having regard
to the prevailing murder rate in South Africa, it is incumbent upon
courts to impose a sentence that would send
a message to the
community at large, that murder is not acceptable. It is the right of
each member of society to live their daily
lives peacefully and
without the fear that one's life can be taken away senselessly and a
callous manor at any given moment. The
community, no doubt, has an
interest in the proper punishment of persons who commit murder.
Evaluation
[18] In considering
the imposition of a minimum sentence, the Supreme of Appeal in S v
Malgas 2001 (2) SA1222 SCA, laid down the
following test at 1236 D:
"If the
sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
xoould be
done by imposing that sentence, it is entitled to impose a lesser
sentence".
[19] The appellant
was up until the day he committed the crime in question, a law
abiding citizen who contributed positively to
the well-being of his
family. He was, furthermore, gainfully employed and made a
contribution to the economy at large. The senseless
murder of the
deceased was largely occasioned by the fact that the appellant is not
able to control his temper. The record reflects
that the appellant
immediately realised that he had made a mistake. To this end, the
appellant will benefit from an anger management
course.
[20] The appellant
showed true remorse in that he engaged with the family of the
deceased and as stated supra contributed to the
burial costs of the
deceased. In view of the aforesaid circumstances, the imposition of
the minimum sentence of 15 years is, in
my view, disproportionate to
the crime, the appellant and the interests of society. Society will,
in view of the attributes of
the appellant, be better served if the
appellant is rehabilitated and introduced back into society.
[21] The appellant
was sentenced on 16 May 2014 and has therefore to date almost served
two years of his sentence. In the premises,
the appellant has already
experienced the harsh punishment of imprisonment.
[22] As stated
supra, the appellant, in my view, will benefit from an anger
management course. Should the appellant be capable to
control his
temper, the chances of the appellant committing further violent
crimes in future will at least be minimised. In all
the
circumstances, I am of the view that the imposition of the minimum
sentence will not be fair and reasonable.
[23] In the
premises, I suggest the following sentence:
Eight years
imprisonment of which five years are suspended on condition that:
1. The appellant
successfully completes an anger management course; and
2. That the
appellant does not commit a violent offence during the period of
suspension.
ORDER
I propose the
following order:
1. The appeal
against sentence is upheld
2. The order of the
court a quo is set aside and replaced with the following:
"Eight years
imprisonment of which five years are suspended on condition that:
a. The appellant
successfully completes an anger management course; and
b. That the
appellant does not commit a violent offence during the period of
suspension.
3. The sentence is
antedated to 16 May 2014.
N JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
I agree.
VRNS NKOSI
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
It is so ordered.
Appearances:
Counsel for the
Appellant : Advocate S M Dube
Instructed by : Q
Khumalo Attorneys
Counsel for the
state : Advocate Mashuga
Instructed by:
The State