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[2016] ZAGPPHC 752
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Masango v S (A260/2015) [2016] ZAGPPHC 752 (20 June 2016)
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Certain
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REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTH
GAUTENG DIVISION, PRETORIA
CASE
NO: A260/2015
20/6/2016
Reportable:
no
Of
interest to other judges: no
Revised.
In
the matter between:
TUTA
MUZI
MASANGO
Appellant
and
THE
STATE
Respondent
JUDGMENT
PHATUDI AJ,
[1]
INTRODUCTION
1.1.
The Appellant in this
matter has been convicted of murder read with the provisions of
Section
51(1) of Act 105 of 1997
[1]
, and was sentenced to
life imprisonment by the learned Magistrate E. Schutte, sitting as a
Court of First instance at Actonville
Regional Division.
1.2.
As a result of the
capital sentence imposed the Appellant enjoys automatic right of
appeal in terms of the provisions of
Section
10 of Act 42 of 2013.
[2]
The Appellant now appeals
against both conviction and sentence imposed against him. The
Appellant was assisted by an Attorney throughout
the trial.
1.3.
The facts giving rise to the conviction may be briefly summarized as
follows:
[2]
A BRIEF SURVEY OF THE STATE'S CASE:
The
first witness for the State,
Ms. Zinhle Dlamini
testified
that:
2.1. On
01 March 2014,
Mabel Nondlyebo Olnglswayo
("the deceased") who was her
friend, went to town accompanied by her child one
A.
to do
some shopping. That evening the deceased came to pay her a visit at
about
18h30.
She was delirious and crying with her vest torn.
The deceased later received a phone call from the Appellant who asked
her to come
back home at […] Street, Wadville where they
cohabited.
2.2. Upon arrival at that
residence, the witness asked the Apellant as to why he had assaulted
the deceased. Appellant hit her with
an open hand on her cheek
and she fell down. Then in the
dining room was
the deceased, Appellant,
A,
the deceased's grandfather, the witness, and two children who
were all in the house.
2.3. All of a sudden
after the deceased asked why he slapped the witness, she suddenly saw
that the deceased was down on the floor
face down, with her arms
around her head, covering her face. The witness saw the Appellant
coming from the kitchen with a knife
in his hand which when measured
was
32
centimetres in length with a
15
centimetre
blade. She saw Appellant sitting on the deceased's back and stabbing
her twice in the back. Thereafter, the Appellant
wrapped the knife in
his shirt and fled on foot. Later Appellant returned to the house and
locked himself therein. The police arrived
at the scene of the crime
and arrested the Appellant.
2.4. The second witness
to give evidence was one
Herald Mavimbela.
The gist of his
evidence was that he was related to the deceased and that both the
Appellant and deceased lived together at […]
Street where the
grandfather
Isaac Nkabinde
also lived. He stated that he was
phoned to come to the house in question
([…] Street) on 02
March 2014
where an incident occurred. On arrival he found the
house in a state of disarray and there was blood on the floor which
spilled
between the dining room and the kitchen. It was from the
dining room door where he saw a knife under the bed in the bedroom.
He
described it as a homemade knife. Although found clean, the knife
had black marks on the handle. This knife was later collected
by the
police as an exhibit.
2.5. The third witness
for the prosecution was
Constable Lucas Ambani Sadiki
attached
to Actonville police Statoion. He stated that he and one Constable
Manilla (surname not recorded) visited the crime scene
at house no:
[…] Street on 01 March 2014
at about
20h00-21h00.
An old man appointed out
to them a body of a person with a stab wound at the back, who it
appeared was still alive when they arrived
at the house.
The victim informed them
that it was Appellant who stabbed her at the back. According to him
the victim died while on the way to
the hospital. The fourth witness
to testify was
Warrant Officer Rashimiti Simeon Chokwe,
also a
police officer attached to Actonville Police Station. He testified
that on
02 March 2014
while on duty paid a visit at house no
[…]
Street to collect an exhibit, a knife, which was
shown to him by the second witness,
Herald Mavimbela.
He said
that he found the knife under the bed and booked it into
SAP
13,214/2014.
2.6.
A
further witness was the minor child
(8
years old) A.,
the
deceased's daughter, who testified in camera with the assistance of
an Intermediary a
Ms.
Khaya Khasi Poepe,
duly
appointed in terms of
Section
170A of Act 51 of 1977
[3]
,
as
amended.
The crux of her evidence
was that on the day in question her mother (the deceased), and
Zinhle,
the first witness, on arrival from town were busy
consuming liquor at home until late that evening when they returned
home.
On arrival, her
grandfather and Appellant were home. Appellant asked her mother for a
R100.00
note which she gave to him. They returned to
Zinhle's
house and later returned home, where her mother's purse was torn
up and damaged. She alleged it was damaged by the Appellant, although
that was a mere suspicion.
An altercation ensued
between her mother and Appellant over the money. Appellant then
grabbed deceased by her neck. He sat on top
of the deceased but she
managed to push him away. Appellant went into the kitchen from where
he emerged armed with
a knife. He again sat
on top of the deceased, stabbing her twice with the knife in her
back. Demonstrating with dolls,
the position of her mother, she
illustrated that her mother was lying face down, while Appellant
straddled on her back as he stabbed
her. That was the summary of her
evidence.
2.7. The last witness for
the State was one
Dr Mohammed Sharam.
He confined his
evidence to exhibit
"B"
being a post-mortem report.
The gravamen of his evidence was that a good or sufficient force was
required to inflict the wound which
collapsed the deceased's lung.
The injury was sufficient to fell the victim. Of crucial importance
was that it was physically impossible
for the deceased to have
stabbed herself in the back while her arm was twisted behind her
back. It was also said that it was medically
possible for the knife
to have penetrated the body twice in the same position and at the
same tractor. The State's case was concluded
at this point.
[3]
The Appellant also presented his version of events briefly as
follows:
3.1. That on his arrival
at home,
Zinhle,
the deceased
Mabel,
and his Uncle
Isaac Nkabinde
were present. He stated that
Mabel
(the
deceased), demanded her money from him, and slapped him twice. She
started throwing objects and broke some items and then went
into the
kitchen and returned armed with a knife. She came straight to him
with the aim to stab him with the knife.
3.2. Appellant allegedly
jumped and stood behind her and grabbed her from behind with his arm
around her neck. He twisted her arm
around her neck, bent forward,
and they both fell. He fell on top of her and both were down. He
stated that he believed that she
stabbed herself accidentally as she
fell down. He went outside the house to summon an ambulance to convey
the victim to the hospital.
He left the knife on the floor.
[4]
The vexed question is whether the State had succeeded in proving its
case beyond reasonable doubt.
[5]
It is common cause that the following facts had been established by
the evidence:
5.1. The deceased died on
the night of
01 March 2014.
The cause of death was on account
of a stab wound caused by a knife near her shoulder blade.
5.2.
The
evidence of the first witness,
Zinhle,
and the
minor child
A.
corroborated
each other as to who inflicted the fatal wound. The Court
a
quo
found
their evidence "very coherent and clear'' and that it was the
Appellant who went to fetch the knife. He sat on top of
the deceased,
straddling her as he stabbed her twice
[4]
.
5.3. The Appellant's
evidence that she accidentally stabbed herself has been refuted by
the medical evidence of
Dr Sharam.
The deceased could not have
managed to stab herself twice while her hand was twisted behind her
back, while lying on the floor with
her face down. The sharp end of
the knife would have pointed downwards and could not have inflicted
the wound on the upper shoulder
blade as Appellant alleged it did. I
am of the view, therefore, that the Appellant's version is not only
improbable, but also not
reasonably possibly true.
5.4. The testimony of the
said two state witnesses' indicated that the Appellant was the
aggressor.
5.5.
The
knife blade would not have been plunged in the area where it would
have been able to inflict the nature of the wound sustained.
The penetration of both lobes of the lungs suggests that considerable
force was used from the position described by the eye witnesses
referred to. The knife,
.
because of the depth of the penetration had to be
extricated from her back.
[5]
It
follows, that on the semblance of the State's evidence as opposed to
that of the Appellant, his version is not only fraught
with
improbabilities, but is beyond reasonable doubt, false.
5.6. In view of not only
the formal admissions that Appellant made in terms of the provisions
of
Section 220 of Act 51 of 1977 (exhibit "A"),
but
also the totality of the evidence presented, during the trial, I
entertain no doubt that the Appellant had been properly convicted
of
murder. The evidence and the facts presented do not however support a
conviction of murder within the purview in
Section 51 (1) of Act
105 of 1997.
There was no evidence adduced that the killing was
premeditated either.
[6]
This then brings another dimension to the appropriateness of the life
sentence imposed. Due to the obvious error on conviction
of
premeditated murder it is open to this Court to interfere with the
sentence.
[7]
The Appellant was
considered a first offender as the previous convictions were not
related to the current offence which is one of
murder
[6]
.
[8]
It is trite principle
that sentencing an offender is a matter pre-eminently residing in the
discretion of the sentencing court,
and clearly, the courts of
Appellate jurisdiction should be slow if not loathe to erode such
discretion. Accordingly, the sentence
imposed should only be altered
and disturbed where the discretion has not been judicially and
properly exercised. The yardstick
is often whether the sentence is
vitiated by irregularity and misdirection or that it is disturbingly
inappropriate. See:
S
v Rabie
[7]
regarding the above
principles. See also
S
v
SM
[8]
.
[9]
The Court, in interfering
with the sentence of the court
a
quo,
has
to determine the appropriate sentence. This is done regard being had
to the triad that was enunciated in S v
Zinn
[9]
where Rumpff JA said:
"It then becomes
the task of this Court to impose the sentence which it thinks
is
suitable in the circumstances. What has to be considered is the
triad consisting of the crime, the offender and the interests
of
society."
[10]
Holmes JA, in S v
Rabie
[10]
said:
"Punishment
should fit the criminal as well as the crime be fair to society, and
be blended with a measure of mercy according
to the circumstances."
[11]
Interfering with the
sentence of the court
a
quo
does
not reduce the seriousness of the crime that the Appellant has been
convicted of. The crime remains serious and the Courts,
in serious
cases are not to avoid imposing appropriate sentences for flimsy
reasons. (See: S v Malgas
[11]
2001 (1) SACR 469
(SCA) at 4811-482A).
[12]
The absence of premeditation, as I have found, makes the sentence
imposed by the court a
quo
harsh and inappropriate. This
Court, therefore, is at large to disturb the sentence and substitute
it with a lesser sentence.
[13]
Having regard to the triad and what I said above, I, in the
circumstances, propose to make the following order:
(1)
The
appeal against the murder conviction is dismissed.
(2)
The
appeal against the sentence of life imprisonment is upheld.
(3)
The
sentence is set aside and substituted with the following
sentence:
"3.1
The accused is sentenced to twenty (20) years
imprisonment".
3.2
"The sentence in 3.1 above is, in terms of Section 282 of Act 51
of 1977, antedated to 18 November 2014".
_________________________
M.G.PHATUDI
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION OF THE HIGH COURT,
PRETORIA
I
concur and it is so ordered
_________________________
M
W MSIMEKI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION OF THE HIGH COURT
PRETORIA
I
agree
Counsel
for Appellant:
Ms M. M.
P Masete
Pretoria Justice Centre
Pretoria
Counsel
for Respondent:
Advocate J. J Jacobs
The Director of Public
Prosecutions Pretoria
Date
heard:
3 December 2015
Date
delivered:
[1]
The
Criminal Law Amendment Act., 1997
[2]
Judicial Matter Amendment Ad., 2013
[3]
The
Criminal Procedure Act, 1977
[4]
Pp 95-96, line 20, record
[5]
P. 96, record
[6]
P 111, line 10-20, recorded
[7]
[8]
2010 (1) SACR 504
at 510 c-d (WC)
[9]
1969 (2) SA 537
(A) at 540G
[10]
1975 (4) SA 855
(A) at 862G
[11]
2001 (1) SACR 469
(SCA) at 481i-48a).