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[2016] ZAGPPHC 290
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Director of Public Prosecutions, Gauteng, Pretoria v Tsotetsi (CC13/2014) [2016] ZAGPPHC 290 (22 April 2016)
HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION,
PRETORIA)
22/4/2016
Not reportable
Not of interest to
other Judges
CASE NO:
CC 13/2014
In the matter between:
THE DIRECTOR OF PUBLIC
PROSECUTIONS,
GAUTENG,
PRETORIA
Applicant
and
PORTIA THULISILE
TSOTETSI
Respondent
JUDGMENT - Leave to
appeal
MAKGOKA, J
[1] This is an
application by the Director of Public Prosecutions for leave to
appeal against the sentence imposed on the respondent,
who was
convicted of two counts of murder. In both counts, the sentences were
subject to the provisions of
s 51
of the
Criminal Law Amendment Act
105 of 1997
, in terms of which the respondent had to be sentenced to
imprisonment for life in each count, unless substantial and
compelling
circumstances were found to exist, in which event, lesser
sentences could be imposed. The court found such circumstances to
exist,
and imposed a sentence of 20 years' imprisonment in respect of
each count, and ordered the sentences to run concurrently. The
effective
sentence was therefore 20 years' imprisonment.
[2] In concluding that
substantial and compelling circumstances existed, justifying
deviation from the prescribed sentences, the
court considered the
cumulative effect of the personal circumstances of the respondent and
the length of period which the respondent
had spent in custody
awaiting the finalization of the trial. As regards the respondent' s
personal circumstances, she is amongst
others, HIV positive.
Ordinarily, this factor, on its own, would not carry much weight when
sentence is considered for serious
crimes.
[1]
However, in the present case, the court took into account the
circumstances under which the respondent acquired the HI virus,
namely that she was infected by her husband, the deceased in one of
the murder counts.
[3] As regards the period
spent in custody awaiting finalization of the trial, the respondent
had spent a period of just under 5
years - 4 years and 8 months to be
exact. The respondent was only 26 years old when the murders were
committed. That is relatively
young. I say 'relatively young'
guardedly, because In
S
v Matyitiyi
[2]
the
Supreme Court of Appeal concluded that the age of 20 and above could
not be regarded as a mitigating factor. On the other hand,
the same
Court considered the age of 29 as 'relatively young' and a mitigating
factor in
S
v Nkomo
.
[3]
[4] The above
considerations, taken cumulatively with the other aspects of the
respondent's personal circumstances, including the
fact that she is a
first offender, impelled the court to conclude that substantial and
compelling circumstances were present, justifying
the imposition of
lesser sentences.
[5] In its notice of
application for leave to appeal, the Director of Public Prosecutions
criticizes the court for 'speculating'
about the respondent's motive
for committing the murder in count 1. It is correct that the court
inadvertently overlooked the evidence
that the intention to commit
the murder in count 1 had been established months before the
respondent discovered that she was HIV
positive. The upshot of this
is that her knowledge of her HIV status could not have been the
motive. This aspect, however, has
no bearing on whether the court
properly considered, on the objective and established facts, the
presence of substantial and compelling
circumstances. As it is often
said, an appeal does not lie against the reasoning, but the
conclusion, of the court. As a result,
nothing really turns on this
so-called misdirection. The key question is whether another would
come to a different conclusion on
whether substantial and compelling
circumstances are present.
[6] The Director of
Public Prosecutions also complains that the court downplayed the
respondent's ' absence of remorse.' During
her evidence in mitigation
of sentence, the respondent offered an apology to the families of the
deceased. Pressed during cross-examination,
she stopped short of
admitting her role in the murder of the two deceased. This, the
Director of Public Prosecutions, contends,
is indicative of lack of
remorse. From that premise, it is argued that the respondent's
prospects for rehabilitation are remote.
I do not agree. It was clear
during cross examination of the respondent by the State that the
State wanted the respondent
to admit her involvement in the killing
of the deceased. The manner in which she elected to defend herself
made it difficult simultaneously
to express remorse in the manner the
State would have preferred. Short of changing her plea to one of
guilty during mitigation
of sentence, there was very little the
respondent could say regarding her apology and remorse.
[7] I closely observe the
respondent's demeanor in the witness box when the apology referred to
above, was made. The general tenor
of the apology appears to entail
the recognition by the respondent that deaths of the two deceased had
caused considerable pain
to their respective families. In all
circumstances, it is unduly harsh and not factually grounded to write
off the respondent as
an irredeemable recidivist. As correctly
observed by Theron AJA in her minority judgment in
S
v Nkomo,
[4]
there is hardly any person of whom it can be said that there is no
prospect of rehabilitation.
[5]
[8] The other ground of
appeal by the Director of Public Prosecutions is even if the finding
of the presence of substantial and
compelling circumstances was
correct, the Court erred by ordering the two sentences to be served
concurrently. The approach in
this regard is trite. Where an accused
person is convicted of more than one offence, it is a salutary
practice for a sentencing
court to consider the cumulative effect of
the respective sentences. In this regard, an order that the sentences
should run concurrently
may be used to prevent an accused person from
undergoing a severe and unjustifiably long effective term of
imprisonment.
[6]
An order that
sentences should run concurrently is called for where the evidence
shows that the relevant offences are 'inextricably
linked in terms of
the locality, time, protagonists and, importantly, the fact that they
were committed with one common intent'.
[7]
Put differently, where there is a close link between offences, and
where the elements of one are closely bound up with the elements
of
another, the concurrence of sentences in particular should be
considered.
[8]
[9] In the present case,
the Director of Public Prosecutions contends that the two murders
were 'not closely linked in time or space
and totally separate
processes of planning (preceding) each of the murders.' This
statement cannot be correct. It is clear from
the totality of the
evidence that the two murders were closely related and linked. In
fact, it was the State' theory during the
trial that the deceased in
count 2 was killed because of his involvement in the killing of the
deceased in count 1, and his subsequent
blackmailing of the
respondent to spill the beans about the respondent as the master-mind
behind the killing of the deceased in
count 1. The evidence
established this, and accordingly, the Court found an inextricable
link between the two murders in terms
of the locality, time and the
protagonists. The contention by the Director of Public Prosecution is
therefore devoid of any merit,
and is in fact, disingenuous in light
of the stance taken by the State during the trial.
[10] Lastly, the Director
of Public Prosecutions contends that the Court did attach sufficient
weight to the seriousness of contract
killings and that the sentence
fails to reflect this aggravating feature of both murders. Each case
must be determined on its merits.
The Supreme Court of Appeal has,
for example, reduced sentences of life imprisonment to lesser
sentences for contract killing.
[9]
[11] The sum total of all
the above is that there is no merit in any of the grounds raised by
the Director of Public Prosecutions.
There are therefore no
reasonable prospects that the Supreme Court would come to a different
conclusion on sentence. The application
falls to fail.
[12] In the circumstances
the following order is made:
1. The application by the
Director of Public Prosecutions (Gauteng) in terms of
s 3168
of the
Criminal Procedure Act 51 of 1977
, for leave to appeal to the Supreme
Court of Appeal against the sentence imposed on the respondent, is
dismissed.
_________________________
TM Makgoka
Judge of the High Court
[1]
S v
Mahachi
1993 (1) SA 36 (Z).
[2]
S v
Matyityi
2011 SACR 40
(SCA) para 14.
[3]
S v
Nkomo
(fn 2 above) para 13.
[4]
S v
Nkomo
2007 (2) SACR 198 (SCA).
[5]
Para 30.
[6]
S v
Whitehead
1970 (4) SA 424 (A).
[7]
S v
Makela
2012 (1) SACR 431
(SCA) para 11.
[8]
S v
Mate
2000 (1) SACR 552 (T).
[9]
See, for example
OPP
v Gcwala
(295/13) [2014] 44 (31 March 2014).