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[2016] ZAKZPHC 69
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Majola and Another v S (AR 753/14) [2016] ZAKZPHC 69 (5 August 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
KWAZULU NATAL
DIVISION, PIETERMARITZBURG
Case No: AR
753/14
DATE: 5 AUGUST
2016
In the matter
between:
BUHLEBUYEZA
KWAZIKWAKHE
MAJOLA
...............................................
FIRST
APPELLANT
SIBUSISO PHILEMON
MAJOLA
................................................................
SECOND
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram : Jappie
JP, Poyo Dlwati J et Maharaj AJ
Heard : 27 July
2016
Delivered : 05
August 2016
ORDER
On
appeal from the KwaZulu-Natal High Court, sitting in Mtunzini,
Henriques J sitting as a court of first instance:
Accordingly,
I propose the following order:
‘
The
appeal against sentence is dismissed.’
JUDGMENT
POYO
DLWATI J
[1]
The appellants were indicted before Henriques J and an assessor
sitting as a court of first instance in the High Court, Mtunzini
on
one count of murder (count one), one count of unlawful possession of
prohibited semi-automatic firearms (count two) and one
count of
unlawful possession of ammunition (count three). They pleaded not
guilty to the charges but were convicted of all charges
on 9 April
2013. On 2 May 2013 they were sentenced to life imprisonment for
count one and eight years’ imprisonment for counts
two and
three which were taken as one for purposes of sentence.
[2]
Their applications for leave to appeal against convictions were
refused by the court
a quo
but
leave to appeal against sentence was granted. The first appellant
petitioned the Supreme Court of appeal in respect of their
leave to
appeal against their convictions but same was dismissed on 19
February 2016. This appeal therefore pertains to sentence
only.
[3]
In order to have regard to the contentions raised on the appellants’
behalf in this appeal, it is necessary to set out
the facts and
circumstance surrounding the commission of the offences leading to
the convictions of the appellants. The deceased,
Zenzele Abednigo
Nxumalo, was employed as a manager at Bell Equipment in Richards Bay.
He was a human resource practitioner. His
duties included perusing
and drawing up of charge sheets for disciplinary inquiries, notifying
employees of such inquiries and
informing them about the results of
such inquiries. The first appellant was also employed at Bell
Equipment. The state alleged
that he (the first appellant) was facing
disciplinary proceedings for having been absent at work without
leave. According to the
evidence presented by the state the first
appellant had been notified by the deceased on 4 August 2011 of an
upcoming enquiry against
him, something which he denied throughout
his trial.
[4]
The state further alleged that he (the first appellant) decided not
to attend the inquiry as he thought that he might lose his
employment. Instead, he decided to kill the deceased in order to
avoid the inquiry. For this purpose he enlisted the services of
the
second appellant. On the morning of 5 August 2011 the appellants
proceeded to the deceased’s home. They found him at
his home,
seated in his motor vehicle outside his garage awaiting his wife and
children. The second appellant fired several shots
at him and he died
as a result of gunshot wounds. The appellants were arrested shortly
after the incident. After a lengthy trial
they were convicted of all
counts.
[5]
At issue in this appeal is whether the learned judge erred in not
taking into account the reason for the killing of the deceased
as a
factor that could constitute substantial and compelling circumstances
therefore resulting in the imposition of a less severe
sentence than
the one prescribed. Mr Mngadi, on behalf of the appellants, argued
that the reason for committing a crime should
be taken as a core of
the moral blameworthiness of the offender. The court therefore is
required to strike a balance between the
degree of harmfulness of the
offence and the degree of culpability of the offender. He contended
that blameworthiness or culpability
of the offender is a measure of
how severe punishment ought to be. He argued that moral
blameworthiness therefore includes internal
subjective factors like
fear of losing employment. In this regard he referred us to
S
v Mvuleni
1992 (2) SACR 89
(A) at page
94E, which I will deal with later.
[6]
The appellants, however, have never admitted
that they killed the deceased for their fear of losing employment.
They never took
the court into their confidence even at the
sentencing stage and to explain the real reason for having killed the
deceased. For
moral blameworthiness one must acknowledge their wrong
first and not rely on the courts’ finding. It cannot therefore
be
argued that one needs to look into their fear and establish
whether it was real in the circumstances. In
S
v Letsolo
1970 (3) SA 476
(A) at
pages 476 – 477, the court, as per Holmes JA pointed out that
there are extenuating factors that have a bearing on
the weight of
moral blameworthiness of an accused. The court held as follows:
‘
Extenuating
circumstances have more than once been defined by this Court as any
facts, bearing on the commission of the crime, which
reduce the moral
blameworthiness of the accused, as distinct from his legal
culpability. In this regard a trial Court has
to consider –
(a)
whether there are any
facts which might be relevant to extenuation, such as immaturity,
intoxication or provocation (the list is
not exhaustive);
(b)
whether such facts,
in their cumulative effect, probably had a bearing on the accused's
state of mind in doing what he did;
(c)
whether such bearing
was sufficiently appreciable to abate the moral blameworthiness of
the accused in doing what he did.
In
deciding
(c)
the trial Court exercises a moral judgment. If its answer is yes, it
expresses its opinion that there are extenuating circumstances.
Such
an opinion having been expressed, the trial Judge has a discretion,
to be exercised judicially on a consideration of all relevant
facts
including the criminal record of the accused, to decide whether it
would be appropriate to take the drastically extreme step
of ordering
him [to life imprisonment] or whether some alternative, short of this
incomparably utter extreme, would sufficiently
satisfy the deterrent,
punitive and reformative aspects of sentence. … Every relevant
consideration should receive the most
scrupulous care and reasoned
attention; and all the more so because the sentence is unalterable on
appeal, save on an improper
exercise of judicial discretion, that is
to say unless the sentence is vitiated by irregularity or
misdirection or is disturbingly
inappropriate.’
If
they had admitted the killing at some stage, then one would examine
their actions leading up to the killing. The learned judge,
correctly
in my view referred to the reason for the killing as senseless. Even
if therefore one were to have regard to that reason,
I do not
believe, even when taken together cumulatively with other personal
circumstances, there would be a deviation from imposing
the
prescribed sentence of life imprisonment for count one. Their
ultimate cumulative impact is not such as to justify a departure
from
the prescribed minimum sentence. In
S v
December
1995 (1) SACR 438
(A) at 444E
ffg, although the matter is distinguishable in that the murder of the
two deceased was not premeditated, the accused
had been insolent and
unreasonable to his former employers, an elderly husband and wife
couple. The accused never gave the reason
for the sudden outburst and
brutal, almost methodical murder of the two deceased and what the
actual trigger was for his violent
reaction. The court in that case
held that the death sentence, especially for the one murder, was the
only appropriate sentence
– the death sentence at the time of
the
December
judgment was still being deliberated on by the Constitutional Court.
[7]
Mr Mngadi, in his heads of argument seems to suggest that the court
in
Mvuleni supra
found that where the main source of discontent related to employment
issues, the death sentence for murder is not the only proper
sentence. I disagree. In my view, all that was said in
Mvuleni
was that the appellant’s dissatisfaction with his conditions of
employment and wages, as well as his disappointment with
the first
deceased’s attitude when he tried to discuss the problem, these
were factors that ought to have been considered.
In the light of the
above and considered in this context it does not necessarily mean
that where employment issues are at stake,
this would lead to an
automatic reduction of the sentence.
[8]
Furthermore, the facts in
Mvuleni
were quite distinguishable from the facts of this case. The deceased
in this matter was not the cause of the disciplinary proceedings
that
the first appellant was facing. However, convening disciplinary
hearings was something that fell within his job description.
Therefore he was killed only for performing his duties. That, in my
view, is an aggravating factor. For that matter even if one
has to
accept that the first appellant’s fear of losing employment was
real, how could it have been so if he had not attended
the hearing
first. In fact in
Mvuleni
supra
at
page 94D Grosskopf JA held that the presence or absence of mitigating
and aggravating factors must be considered against the
background as
supplied by the appellant’s own evidence.
[9]
The same goes for the second appellant and that is he knew that he
was being asked to assist in the commission of a crime of
a very
serious nature. Nothing prevented him from resisting participation in
such a heinous crime. Hence,
S v Smith
and Others
1984 (1) SA 583
(A) will
therefore not find application in the present matter. It therefore
cannot be said that the court a
quo
misdirected itself in any way or that the sentence imposed is
shocking, startling or disturbingly inappropriate. Having considered
the learned judge’s sentence, I agree that there are no
substantial and compelling circumstances that justified deviation
from the prescribed sentence. The trial court gave careful
consideration to all factors relevant to sentence and it gave a
sentence
which it considered appropriate. Our interference is
therefore not warranted. Any mitigating factors that are present in
the appellant’s
personal circumstances are outweighed by the
gravity of the offence, its prevalence and the interests of society.
The appeal must
therefore fail.
Order
[8]
Accordingly, I propose the following order:
‘
The
appeal against sentence is dismissed.’
POYO
DLWATI J
I
agree
JAPPIE
JP
MAHARAJ
AJ
Date
of Hearing : 27 July 2016
Date
of Judgment : 05 August 2016
Counsel
for Appellant : Mr Mngadi
Instructed
by : Justice Centre Durban
Counsel
for Respondent : Adv F Van Heerden
Instructed
by : The Director of Public Prosecutions