About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 322
|
|
Mapothama v S (A394/2014) [2016] ZAGPPHC 322 (5 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
5/5/16
CASE NO.: A394/2014
Not
reportable
Not of
interest to other judges
Revised
In the
matter between:
NICHOLAS
MATHIBELA
MAPOTHAMA
Appellant
and
THE
STATE
Respondent
JUDGMENT
Jansen
J
[1]
In this matter an appeal was heard in respect of the first appellant
during 2014 and a written judgment was delivered on 9 October
2014.
The appellant's co-accused's appeal against sentence was successful
and the sentences reduced to an effective term of 20
years'
imprisonment. The non-parole order imposed by the magistrate was set
aside
(Maroga v State
Case No.
A394/2014 (9/10/14)).
[2]
The second appellant's appeal was not heard as his attorneys of
record had withdrawn due to a lack of instructions. Both appellants
were granted leave to appeal on a petition to this court on sentence
only.
[3]
On 30 July 2013, the appellant and his co-accused (the first
appellant, as appears
ex facie
the
record) were convicted in the Pretoria Regional Court of robbery with
aggravating circumstances and murder. The charge sheet
referred to
section 51(2) of Act 105 of 1997 only. Hence the provisions of
section 51(1) which refer to a life sentence in certain
circumstances
set out in part 1 of Schedule 2, find no application.
[1]
[4]
On 30 October 2013, the appellant was sentenced to 15 years'
imprisonment for robbery with aggravating circumstances and 18
years'
imprisonment for murder. The sentences imposed were to run
consecutively.
[5]
In terms of section 2768(1) of Act 51 of 1977, a non-parole period of
22 years was imposed. The effective term of direct imprisonment
imposed is therefore a period of 33 years.
[6]
A synopsis of the evidence demonstrates that the appellant and
friends were drinking at a tavern when they noticed a man who
was
purchasing liquor for two women. When the man and the women left, the
appellant, his co-accused and the state witness Mekgwe,
decided to
follow them and to rob them. A struggle ensued and one of the women
was hit on the head with a bottle (and was robbed
of two cell phones)
by the appellant's co-accused. The other woman managed to flee.
Because the deceased put up a fight, the appellant
(apparently) used
a bottle to stab the deceased twice. (Although a knife was found at
the scene, no blood was found on it.) The
wound was 17cm long - a
deep wound which would indicate the use of a knife. However, the
knife was never inspected for fingerprints
or blood.
[7]
The deceased fell to the ground and the appellant's co-accused kicked
him. According to the post-mortem report, and the evidence
of Dr M M
Sefanyatsu, the cause of death of the deceased was a stab wound in
his armpit and the fact that an axillary artery and
nerves were
severed. (The axillary artery conveys oxygenated blood to the lateral
aspect of the thorax, the axilla (armpit) and
the upper limbs.)
[8] For
purposes of sentencing, the following evidence is important: -
a)
Though the
appellant was under the influence of liquor, he admitted that he knew
what was happening, even after a long evening of
drinking. The
deceased was similarly under the influence of liquor. The post mortem
report indicated that the stomach contents
of the deceased smelt
strongly of alcohol.
b)
The murder
was not premeditated and the magistrate only found
dolus
eventualis
as far as the murder is concerned.
This, in itself, is not a mitigating circumstance but may be regarded
as such should it be demonstrated
that the intention of the appellant
when perpetrating the crime is less heinous.
(S
v Rapitsi
1987
(4) SA 351
(A)).
As set out above, section
51(1) was not relied upon in the charge sheet and hence premeditated
murder was not a charge preferred
against the appellant.
c)
The appellant
had no previous convictions or pending cases against him.
d)
The appellant
was born during October 1990, and was described as a relatively young
person by the magistrate. He was 19 when the
incident occurred. He
was unmarried. He passed matric and was studying further at the
Tshwane Self Study College (namely N4 and
N6 in mechanical
engineering). He was in a scholarship program at Eskom in Lephalale
at the time of his arrest and earned R 1,200
per month.
e)
He came from
a happy family with both his parents being permanently employed. He
was a social drinker, did not smoke and attended
the ZCC church.
f)
There was no
evidence of undue force being used. The deceased died of one fatal
stab wound.
[9]
The learned magistrate alleged that he took the cumulative effect of
the sentences into account but paid mere lip service thereto.
[10]
There was a misdirection on the part of the magistrate when imposing
sentence in tarring him with the brush of his co-accused,
who was a
hardened criminal. The magistrate failed to take the age of the
appellant, the fact that he was a first offender and
the
circumstances under which the crimes were committed into account.
[11]
In this regard it was held in
S v Mokela
2012 (1)
SACR 431
(SCA)
at (11) that when the evidence shows that the
offences are
"...inextricably linked in terms of locality,
time, protagonists and importantly the fact that they were committed
with one
common intent" ,
sentences should be ordered to
run concurrently.
[12]
In the instant case, the evidence is clear to the effect that the two
offences are inextricably linked in that during the robbery
the
deceased fought back and was stabbed during the imbroglio.
[13]
The magistrate further
mero motu
imposed a non-parole period
without affording the parties an opportunity to address the court on
this issue. The magistrate's conduct,
in the court's opinion,
violated the accused's fair trial rights, as was held in
S v
Stander
2012 (1) SACR 537
(SCA)
at paragraph
[22].
The court also omitted to make a specific finding regarding
exceptional circumstances which would justify the imposition of a
non-parole
period supported with reasons. In
S v
Pauls
(2) SACR 417 (ECG)
at page
421 f-g
it
was held that the magistrate was duty bound to do so.
[14]
The appellant was sentenced in accordance with the provisions of
section 51(2)(a)(i) of Act 105 of 1977 for the robbery, which
provides for a maximum sentence of 15 years for a first offender.
[15]
De facto
no account was taken of the fact that the appellant
was young. Nonetheless, his youth cannot detract from the severity of
the crimes.
Based on the evidence presented at the trial, the
appellant's counsel did not seek to argue that the minimum sentence
should be
deviated from in respect of the robbery.
[16] In
the premises, the appeal is upheld and the following order is
proposed.
[17]
The order of the magistrate is set aside and the following order is
substituted therefor:
Order
1.
The appellant
is sentenced to a term of 15 years' imprisonment in respect of both
counts 3 and 4, the sentences to run concurrently.
The sentence is
antedated in terms of
section 282
of the
Criminal Procedure Act 51 of
1977
to 30 October 2013.
2.
The
imposition of a non-parole term is set aside.
3.
The appellant
is declared unfit to possess a firearm in terms of
section 103(1)
of
Act 60 of 2000.
_________________________
MM
JANSEN J
Judge
of the High Court
I agree
and it is so ordered.
________________________
N
KHUMALO J
Judge
of the High Court
For
the Appellant:
Advocate J P Marais
Instructed
by:
Centaur House, 38 Ingersol Street,
Lynnwood Glen, Pretoria,
jpmarais.law@mweb.co.za
For
the Respondent:
Advocate A Roos
Instructed
by:
Director of Public Prosecutions, 28
Church Square, Pretoria
_________________________
MM
JANSEN J
Judge
of the High Court
I agree
and it is so ordered.
________________________
N
KHUMALO J
Judge
of the High Court
For
the Appellant:
Advocate J P Marais
Instructed
by:
Centaur House, 38 Ingersol Street,
Lynnwood Glen, Pretoria,
jpmarais.law@mweb.co.za
For
the Respondent:
Advocate A Roos
Instructed
by:
Director of Public Prosecutions, 28
Church Square, Pretoria
[1]
(Section 51 (I ) of the Criminal Law Amendment Act I 05 of 1997
stipulates that: -
"...(n)otwithstanding any other law, but subject to
subsections (3) and (6), a regional court or High Court shall
sentence
a person it has convicted of an offence referred to in Part
1 of Schedule 2 to imprisonmentfor life.
In part I of
Schedule 2 (c) (i i) the following is stated: -
"Murder, when -
(a)
(b)
(c) The death of the victim was caused by tile accused
in committing or attempting to commit or after having committed or
attempted to commit one of thefollowing offences:
(i)
(ii) Robbery with aggravating circumstances as defined in
section 1 of tile Criminal Procedure Act, 1977 (Act 51 of 1977);'')