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[2015] ZAGPPHC 76
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Mothata v S (A698/2014) [2015] ZAGPPHC 76 (19 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case number:
A698/2014
Date: 19 February
2015
Reportable
Not of interest to
other judges
In the matter
between:
SAMUEL
MOTHATA
..............................................................................................................
Appellant
And
THE
STATE
...........................................................................................................................
Respondent
JUDGMENT
PRETORIUS J,
[1] The appellant
was charged in the Local Circuit Division of the High Court sitting
at Polokwane with one count of murder and
one count of rape.
[2] The appellant
pleaded guilty on the charge of murder and on the lesser count of
indecent assault. The state accepted his plea
and he was convicted on
both counts. The appellant was sentenced to thirty (30) years
imprisonment on 28 November 2007. Leave to
appeal was refused, but
granted by the Supreme Court of Appeal on 20 May 2013 to the full
court of this division. The appellant
was legally represented
throughout the proceedings.
The current appeal
is only against sentence and not against conviction.
[3] The facts are
that on 5 December 2005, at Mmotong Village, the Appellant had
accompanied the deceased to a certain homestead.
He waited outside
for her. Whilst talking to her he found that the house she had
visited was that of her other lover. He confronted
her and she
admitted that the man was her lover and that the person was a
witchdoctor who would bewitch the appellant.
[4] He grabbed her
clothes and she slapped him, whereafter he started throttling her
until she fell to the ground.
He then kicked her
between her thighs and inserted his finger into her vagina. He then
discovered that she had passed away. He undressed
her body and
disposed of the clothes.
[5] The doctor, who
conducted the post mortem, found that the cause of death was
“
Hypoxia
due to manual strangulation.”
[6]
In the present matter the dictum by Marais JA in
S
v Malgas 2001(1) SACR 469 (SCA)
p
481 para 22 is apposite :
“
The
greater the sense of unease a court feels about the imprisonment of a
described sentence, the greater its anxiety will be that
it may be
perpetrating an injustice. Once a court reaches the point where
unease has hardened into conviction that an injustice
will be done,
that can only be because it is satisfied that the circumstances of
the particular case render the prescribed sentence
unjust or, as some
might prefer to put it, disproportionate to the crime, the criminal
and the legitimate needs of society. If
that is the result of a
consideration of the circumstances the court is entitled to
characterise them as substantial and compelling
and such as to
justify the imposition of a lesser sentence.”
[7]
In this instance the court has to agree with counsel for the defence
that the prescribed sentence for murder is 15 years imprisonment,
as
it was not premeditated murder. The court a
quo
had
erred by imposing a sentence of thirty (30) years imprisonment
without indicating and informing the appellant why the court
thought
it prudent to double the prescribed sentence. There was no attempt by
the court to adhere to the guidelines as set out
in
S
v Mathebula and Another 2012(1) 374 (SCR)
at
paragraph 11.
[8]
This court cannot speculate as to the reasons which motivated the
court
a quo
to
impose double the prescribed sentence, as the court did not give any
reasons in the judgment on sentencing. It does not appear
from the
judgment on sentencing that the court had considered substantial and
compelling circumstances when considering the sentence,
therefor the
sentence of the court a
quo
should
be set aside. The court had erred and misdirected itself by not
considering whether there are substantial and compelling
circumstances as provided for in section 51(3) of Act 105 of 1997.
[9]
In
S v Rabie
1975(4) SA 855(A) at 862(G)
Holmes
JA held:
“
It
remains only to add that, while fair punishment may sometimes have to
be robust, an insensitively censorious attitude is to be
avoided in
sentencing a fellow mortal,”
In
S v Dodo 2001(1)
SACR 594 (CC)
Ackerman
J dealt with imprisonment in paragraph 38:
“
To
attempt to justify any period of penal incarceration, let alone
imprisonment for life as in the present case, without inquiring
into
the proportionality between the offence and the period of
imprisonment, is to ignore, if not deny, that which lies at the
heart
of human dignity. Human beings are not commodities to which a price
can be attached; they are creatures with inherent and
infinite worth;
they ought to be treated as ends in themselves,
[10] This court
takes into account the argument by counsel for the appellant that the
court should find compelling and substantial
circumstances. The court
finds the following as substantial and compelling circumstances: the
fact that the appellant pleaded guilty
to the charges; he was 23
years of age, thus relatively young when he committed these crimes,
the current offence was committed
whilst the appellant was under the
influence of liquor and he was provoked by the deceased when she told
him that she had another
boyfriend who was a witchdoctor and who
would bewitch the appellant. The appellant is married and has one
child. He was a welder
earning R1300 per month.
[11] The aggravating
facts are that the appellant has a previous record for similar
offences. In 2001 he was convicted of attempted
rape and indecent
assault. He was convicted of assault on 22 July 2005.
[12] It is so that
women and children are the most vulnerable members of our society.
The murder and indecent assault of a woman
is a scourge in our
country, which deserves harsh sentences. Having said so the appellant
should not be sacrificed on the altar
of deterrence but the court has
to balance the interest of society, the interest of the deceased and
her family, the appellant,
as well as the crime.
[13] The purpose of
sentence is not to destroy a person, but to punish him in a balanced
and considered manner.
The court has
considered all the mitigating and aggravating facts. The court has
also considered whether the two charges should
be taken as one when
sentencing the appellant. Both charges emanated from the murder of
the deceased and therefore they should
be taken as one. The appeal is
upheld.
I therefore propose
the following order:
1. The sentence
imposed on 28 November 2007 is set aside;
2. Counts 1 and 2
are taken as one for sentencing;
3. The appellant is
sentenced to fifteen (15) years imprisonment;
4. This sentence is
ante-dated to 28 November 2007
It is so ordered
C Pretorius
Judge of the High
Court
I agree,
M.W. Msimeki
Judge of the High
Court
I agree,
N B Tuchten
Judge of the High
Court
Case number:
A698/2014
Heard on: 13
February 2015
For the Appellant:
Adv. Monyane Instructed by
For the Respondent:
Adv Mnisi
Instructed by:
Director of Public Prosecutions
Date of Judgment: 19
February 2015