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[2015] ZAGPPHC 233
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Mbatha v S (A565/2014) [2015] ZAGPPHC 233 (25 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
DATE:25 March 2015
CASE NO: A565/2014
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
SIBUSISO SIMON
MBATHA
...................................................................................................
APPELLANT
And
THE
STATE
.............................................................................................................................
RESPONDENT
JUDGMENT
MSIMEKI, J
INTRODUCTION
[1] On 28 November
2011, the appellant stood trial in the High Court of South Africa,
Circuit Local Division, Ermelo, charged with
murder, robbery with
aggravating circumstances and malicious damage to property. He
pleaded guilty to the charges and was accordingly
convicted as
charged.
On 29 November 2011,
the appellant was sentenced to 25 years imprisonment, 10 years
imprisonment and 5 years imprisonment in respect
of the murder, the
robbery and malicious damage to property respectively. The sentences
were ordered to run concurrently. The trial
court gave the appellant
leave to appeal against sentence and the appeal now serves before us.
[2] Advocate M B
Kgagara (Mr Kgagara) and Advocate J Cronje (Ms Cronje) represented
the appellant and the respondent respectively
when the appeal was
argued.
BRIEF FACTS
[3] On 23 September
2010 the appellant, in the company of the deceased, proceeded to
Nelspruit to do some deliveries on behalf of
House and Home
[furniture shop]. On their way to Nelspruit, due to the lateness of
hour and the fact that he was tired, the deceased
who was driving
their truck stopped next to the road and slept. The appellant, during
the night, saw an opportunity to enrich himself.
He strangled the
deceased and tied him with the wires which he found in the truck.
This was after he had made up his mind to rob
the deceased of the
goods that were to be delivered together with the truck. He drove to
Daggaskraal where he offloaded some of
the goods. The rest of the
goods were dropped at his parents’ home. He then decided to
drive back to Johannesburg. He, however,
abandoned the idea and
decided to use a gravel road which took him to a desolate place where
he set the truck alight with the deceased
inside, tied as he had
been. The idea, of setting the truck alight, as he put it in his plea
explanation, was to remove his fingerprints
which could link him to
the incident. The truck was destroyed and the deceased was burnt
beyond recognition. The state accepted
the appellant’s version.
[4] This appeal, as
stated above, concerns only the sentence. This court only has to deal
with the appropriateness of the sentences.
THE LAW
[5]
Trial courts have the advantage of dealing directly with the accused
persons. They watch them as they testify and form their
opinions of
these accused as they testify. Trial courts, with this advantage, are
better placed to exercise their discretion when
it comes to the issue
of sentences. It is for this reason that appeal courts do not lightly
interfere with the sentences of the
trial courts. For the appeal
courts to interfere with the sentence of the trial court the sentence
must have been vitiated by misdirection
or irregularity or
disturbingly inappropriate. The trial court must exercise its
discretion judicially and properly otherwise a
situation may arise
where the trial court may be regarded as not having exercised its
discretion at all.
(State
v Rabie
1975 (4) SA 855
at 857D-E; and State v Pieterse
1987 (3) SA
717
(A) and State v Pillay 9177 (4) SA X 531 at 535E-G).
[6]
Punishment, as I demonstrated in paragraph 5 above, “is
pre-eminently a matter for the discretion of the trial court.
Appeal
courts have to be alert and avoid eroding this discretion. It should
also be remembered that “punishment should fit
the criminal as
well as the crime, be fair to society, and blended with a measure of
mercy according to the circumstances.”
(State
v Rabie (supra) at 862G).
[7]
The trial court, in my view, was alive to the fact that the triad of
State
v Zinn
1969
(2) SA 537
at 540G
is
key in the determination of a suitable and appropriate sentence. The
triad consists of the crime, the offender and the interests
of
society.
THE CRIME
[8] The offences
that the appellant has been convicted of are very serious. The
deceased was killed in a very painful way. It will,
in my view,
remain very difficult to establish whether the deceased was in fact
dead when the truck was set alight with the deceased
inside. It will
need a man of sterner steel, to be able to look at photographs of the
deceased in the burnt up truck. It needs
someone who will first die
inwardly to be able to do what the appellant did. The manner in which
the offences were committed speaks
volumes. In short the offences are
serious and heinous. The appellant’s and the respondent’s
counsel agreed.
THE OFFENDER
[9] The appellant
was 28 years old when the offence was committed. He was not married.
He went to school up to standard 9. He has
two minor children he
supported at the time of his arrest. He was unemployed. He spent a
year in custody awaiting trial. He is
a first offender who has
apologised to the deceased’s family. He pleaded guilty and
demonstrated remorse that was evident
to the trial court.
THE SOCIETY
[10]
Society can never be pleased by conduct such as the appellant
demonstrated. Society needs protection which must be provided
by the
courts. Society’s confidence in the criminal justice system is
of utmost significance. The loss of such confidence
by the society
spells out calamity as society, in that event, takes the law into its
own hands. We are all well aware of what society
does these days.
People are burnt to death and their properties set alight. No one is
safe anymore. Without unnecessarily appeasing
society, society needs
to see punishment which will serve the purpose. In this way the
purpose of punishment must be deterrent,
preventive, reformative and
retributive. (S
v
Rabie (supra) at 862A).
[11]
I need to mention that there are instances where the seriousness of
the offence requires that the personal circumstances of
the offender
recede into the background. These are cases which deserve punishment
which should not be avoided “for flimsy
reasons”
(State
v Matjetje
2011 (1) SACR 40
(SCA); State v Vilakazi
2009 (1) SACR 552
(SCA) at [58] and State v Abrahams
2002 (1) SACR 116
(SCA) at [25]).
[12]
The trial court duly considered the triad enunciated
State
v Zinn (supra)
and
all the factors relevant to sentence.
[13] The court found
substantial and compelling circumstances referred to in Section 51
(3) (a) of the Criminal Law Amendment Act
105 of 1997 (CLAA) which
enabled it to impose a lesser sentence than the prescribed minimum
sentence of imprisonment for life.
[14] As proof that
the sentences were blended with a measure of mercy the trial court
ordered that the sentences on courts 2 and
3 run concurrently with
the sentence on count 1.
[15] I have found no
demonstrable and material misdirections or irregularities in the
manner in which the trial court exercised
its discretion with regard
to the appropriateness of the sentences. The appellant was dul\
convicted and sentenced. Appeal against
sentence should fail. The
sentences are appropriate.
[16] I, in the
result, would propose the following order:
The appeal is
dismissed.
M.W.MSIMEKI
JUDGE OF THE
GAUTENG DIVISION
PRETORIA
I agree. I wish to
add that, if at all, the trial court erred on the side of leniency.
E. BERTELSMANN
JUDGE OF THE
GAUTENG DIVISION,
PRETORIA
I agree
And it is so ordered
A.M.L PHATUDI
JUDGE OF THE
GAUTENG DIVISION
PRETORIA
Heard
on
: 15 March 2015
For
the Appellant
: Mr
MB Kgagara
Instructed
by
: Pretoria
Justice Centre
For
the Respondent
:
Adv J Cronje
Instructed
by
: DPP
Date
of Judgment
: