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[2016] ZAGPPHC 451
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Bopape v S (A638/2015) [2016] ZAGPPHC 451 (15 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
No: A638/2015
Not
reportable
Of
interest to other judges
Revised.
15/6/2016
In
the matter between:
JACKY
BUTINYANE
BOPAPE Appellant
And
THE
STATE Respondent
JUDGMENT
HUGHES
J
1.
On 29 June 2015, the appellant, Jackie Butinyane Bopape, was
convicted of murder read with the provisions of
section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
and sentenced to 15 years'
imprisonmment and declared unfit to possess a firearm in terms of
section 103
(1) of the
Firearms Control Act 60 of 2000
.
2.
At the trial the appellant was legally represented and pleaded guilty
to the charge preferred. On application the trial court
granted the
appellant leave to appeal against the sentence imposed.
3.
Briefly, the appeallant on 31 August 2013 unlawfully and
intentionally killed Senzile Sidney Gadjie. The appellant and the
deceased
were patrons at a stokvel drinking alcohol. The deceased
asked the appellant for a cigarette and the appellant refused, an
altercation
ensued, which other patrons managed to diffuse. The
appellant left the stokvel and at some stage obtained a knife from a
friend.
Thereafter he met the deceased with his cousin on the street
and they assaulted him. He drew the knife and stabbed the deceased
once in the chest. The deceased was not armed neither was the cousin.
The post-mortem report records the cause of death as "penetrating
incised wound of the heart".
4.
It emerged from the pre-sentencing report that the appellant handed
himself to the police after the commission of the offence.
He also
instructed his mother to seek forgiveness from the family of the
deceased even though the mother of the deceased refused
to forgive
the appellant.
5.
The submission made in mitigation on behalf of the appellant are
merely general in nature :
5.1.1. He was relatively
young, 26 years of age;
5.1.2. He is a first
offender;
5.1.3. He is a candidate
to rehabilitation;
5.1.4. He pleaded guilty;
5.1.5. He did not waste
the court's time;
5.1.6. He showed remorse;
5.1.7. He accepted
responsibility for his actions, and
5.1.8. He was under the
influence of liquor at the time of the commission of the offense.
6.
The main import of the appellant's argument in the face of the
submissions above is that the magistrate erred in finding that
there
were no substantial and compelling circumstances to deviate from the
imposition of the prescribed minimum sentence and that
the sentence
was shockingly inappropriate. Further, the mitigating factors weighed
heavily in favour of the appellant but the magistrate
showed no mercy
in the sentencing. Lastly, a longterm prison sentence would not
rehabilitate the appellant but rather tum him into
a harden criminal.
7.
Besides the general submissions usually made by the State:
- the minimum sentence
was imposed;
- another court would not
likely interfere with the findings of the trial court;
- no substantial and
compelling circumstances were advanced;
- sentence must address
retribution, deterance, prevention and the protection of society when
sentencing;
The
State agrued that the conduct of the accused in using a knife to kill
the deceased showed that he had no respect for human life.
8.
It is trite that sentencing is within the discretion of the trial
court, an appeal court does not lightly interfere with a sentence
imposed by the trail court unless there is an irregularity or
misdirection. The circumstances entitling a court of appeal to
interfere
with a sentence imposed by a trial court were recapitulated
in
Ma/gas
(para 12) where Marais JA held:
'A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers It. To do
so
would be to usurp the sentencing discretion of the trial
court....However, even in the absence of material misdirection, an
appellate court may yet be justified in Interfering with the sentence
imposed by the trial court. It may do so when the disparity
between
the sentence of the trial court and the sentence which the appellate
Court would have imposed had it been the trial court
is so marked
that It can properly be described as "shocking”,
“startling” or "disturbingly inappropriate”.’
9.
In my view, the magistrate, took into account the mitigating factors
expressed on behalf of the appellant in respect of youth,
rehabilitation prospects and being a first offender. It weighed these
against the aggravating circumstances of the seriousness
of the
offence, the intention of the appellant to kill the deceased, the
taking of the deceased's life, the loss to his family,
society's need
to deter perpetrators or potential perpetrators and the taking of the
law into one's hands.
10.
I am not convinced that the magistrate did not take into account the
nature of the crime, the personal circumstances of the
appellant and
the interest of society, as was stated in
S v Zinn
1969 (2) SA 537
(A) at 540G,
in the evaluation stated above. In the
circumstances, in the absence of any misdirection by the magistrate
it stands to reason that
the appeal against sentence must fail.
11.
In conclusion the following order is made:
The appeal against
sentence is dismissed.
It
is so ordered
______________________
W
HUGHES
Judge
of the Gauteng, Pretoria
I concur
______________________
AC BASSON
Judge of the High Court
Gauteng, Pretoria
Date
of hearing: 06 June 2016
Date
delivered: 15 June 2016
Attorneys
for the Appellant: Adv C Ndalane
Telephone:
0723007619
Attorney
for the Respondent: Adv M J Nethononda
Telephone:0123516700