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[2015] ZAGPPHC 469
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Ngwepe v S (A653/2014) [2015] ZAGPPHC 469 (8 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: A653/2014
DATE: 08 JUNE 2015
In the matter between:
MATHLODI DRUKKY
NGWEPE
.........................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
MAKGOKA J et MUDAU AJ:
[i] The appellant was convicted in the
regional court, Pretoria North, on two counts of attempted murder
(counts 1 and 3); one count
of assault with intent to do grievous
bodily harm (count 2) and one count of assault (count 4). On 8
December 2008 he was sentenced
as follows: 7 years’
imprisonment on count 1; 2 years’ imprisonment on count 2; 10
years’ imprisonment on count
3; and 2 months’
imprisonment on count 4. It was ordered that the sentences imposed on
counts 2 and 4 should run concurrently
with the sentence imposed on
count 1. The effective sentence is therefore 17 years’
imprisonment. The appellant was also
declared unfit to possess a
firearm. Aggrieved, the appellant appeals against that sentence, with
leave of this court. In the main,
the appellant contends that the
trial court misdirected itself in not considering the severity of the
cumulative effect of the
sentence. The State supports the sentence.
[2] The facts giving rise to the counts
faced by the appellant are these. The complainant and the appellant
are husband and wife.
They had been married for approximately 10
years at the date of sentencing. It appears that they had been
experiencing marital
problems before the incidents in issue. The
first of the incidents occurred on an unidentified day in October
2001. This formed
the basis of the first count of murder. The
complainant requested money from the appellant to purchase some
mealie-meal. This resulted
in an argument between them, with the
appellant accusing the complainant of being good for nothing except
always asking for money.
Later, when the complainant was in the
toilet, the appellant followed her, holding a firearm. He fired four
shots at her, two of
which struck her struck her at the back of her
head. She managed to escape to a neighbour’s house, who took
her to the hospital
for medical treatment, where she was admitted for
two weeks. Upon her discharge from hospital, she stayed with a friend
for about
two weeks, as she was too scared to go home. Thereafter,
she reported the matter to the police. She eventually returned home,
as
she had nowhere else to
go-
[3] The second incident, of assault
with intent to do grievous bodily harm, occurred on 7 March 2007 at
approximately 21h00. The
appellant wanted to send out one of their
children to buy him some beer. The complainant objected to the idea,
protesting that
it was already late. The appellant became upset. He
approached her where she was seated on a sofa, pulled and assaulted
her with
open hands and fists. She broke loose and ran into the
street. As she ran away, the appellant broke a bottle with which he
stabbed
her on her hand and shoulder.
[4] The third incident formed the basis
of the second attempted murder charge. It occurred on Good Friday, 6
April 2007. The parties
were expecting guests at the house. However,
there was no food except for mealie-meal. The appellant requested the
appellant to
go to the local butcher to buy some meat, as she
prepared porridge. By 13h00, the appellant had not returned home. She
became worried
and went out of the house to look for him. She
eventually traced him to his friend’s house where she found him
drinking liquor.
He was also speaking on his cell phone. The
appellant’s car was also parked there. The appellant was angry
that she had followed
him. He threw a beer bottle at her. His friend
had to restrain him. She turned and made her way back home. She used
a footpath
to get home.
[5] Shortly thereafter, as she was
walking, the appellant and his friend came driving down the road next
to the footpath. The appellant
veered off the road and bumped into
her. She landed on the windscreen of the car but fell off to the
ground. The appellant however,
drove over her. She sustained broken
limbs. The appellant had to be restrained as he threatened to kill
her. She was eventually
taken to hospital where she spent months
recuperating from her injuries. Since the incident, she has not
regained full use of her
arm.
[6] The fourth and last incident,
concerning assault, happened on 9 January 2008. On that occasion, she
had received an agent’s
call to report for work. When she
reported for duty, she could not carry out the task because of
problems with her hands. She was
then excused and returned home
early. When she arrived home, she found the appellant inside the
house in the company of an unknown
woman. She enquired from the
appellant as to what was going on. She also wanted to assault the
woman. The appellant assaulted her.
She ran out into the street. The
appellant followed her and slapped her. He also threw a brick at her,
but missed her.
[7] In its judgment on sentence, the
trial court considered the gravity of the offences, and the personal
circumstances of the appellant.
He was 44 years old at the time of
sentencing. He was married to the complainant and had three children.
The appellant passed standard
5 but had a 3 year technical diploma.
He was employed by Telkom as an operations manager. The appellant is
a first offender.
[8] It was contended on behalf of the
appellant that an effective sentence of 17 years’ imprisonment
is harsh and induces
a sense of shock. It was further contended that
the trial court should have taken into account that the appellant was
not only
a breadwinner, but a first offender who had pleaded guilty.
Furthermore that, the trial court should have ordered that the
sentences
in respect of counts 1, 2 and 4 to run concurrently with
the sentence of 10 years in respect of current 3.
[9] It is trite that sentence lies as a
sole discretion of the trial court. See S v Rabie
1975 (4) SA 855
(A)
at 857D-E; S v Pieters
1987 (3) SA 717
(A); S v Kibido
[1998] 3 All
SA 72
(A); S v Botha
1998 (2) SACR 206
(SCA); 5 v Kgosimore
1999 (2)
SACR 238
(SCA); S v Barnard
2004 (1) SACR 191
(SCA). The appeal
court’s power to interfere with a sentence is circumscribed to
instances where the sentence is vitiated
by an irregularity,
misdirection or where there is a striking disparity between the
sentence and that which the appeal court would
have imposed had it
been the trial court. See generally: S v Petkar
1988 (3) SA 571
(A),
S v Snyder
1982 (2) SA 694
(A) and S v Sadler
2000 (1) SACR 331
(SCA)
and Director of Public Prosecutions, KZN v P
2006 (1) SACR 243
(SCA)
para 10. As to the nature of the misdirection which entitles a court
of appeal to interfere, the following was stated in
S v Pillay
1977
(4) SA 531
(A) at 535E-F: ‘Now the word ‘misdirection’
in the present context simply means an error committed by the Court
in determining or applying the facts for assessing the appropriate
sentence. As the essential inquiry in an appeal against sentence,
however, is not whether the sentence was right or wrong, but whether
the Court in imposing it exercised its discretion properly
and
judicially, a mere misdirection is not by itself sufficient to
entitle the Appeal Court to interfere with the sentence; it
must be
of such nature, degree, or seriousness that is shows, directly or
inferentially, that the Court did not exercise its discretion
at all
or exercised it improperly or unreasonably. Such misdirection is
usually and conveniently termed one that vitiates the Court’s
decision on sentence.’
[10] It is trite that if the offences
committed are of a serious nature, as in this case, the interests of
the offender must be
considered less (as compared to the other
competing interests within the triad referred to in S v Zinn
1969 (2)
SA 537
(A). The scourge of domestic violence must be dealt with
effectively by the State and society, and, if necessary by the courts
(S v Baloyi
2001 (1) SACR 81
(CC) 87; Van Eeden v Minister of Safety
and Security (Women’s Legal Centre Trust, as Amicus Curiae)
2003 (1) SA 389
(SCA) paras 12, 13: S v Roberts
2000 (2) SACR 522
para 20; S v Ferreira and others
[2004] 4 All SA 373
(SCA).
[11] Equally, it is a salutary practice
that if an accused is sentenced in respect of two or more related
offences, the accepted
practice is that the sentencing court should
have regard to the cumulative effect of the sentences imposed in
order to ensure that
the total sentence is not disproportionate to
the accused’s blameworthiness in relation to the offences in
respect of which
he or she has to be sentenced. See S v Mpofu
1985
(4) SA 322
(ZHC) at 324G-J; S v Coales
1995 (1) SACR 33
(A) at 36e-f;
S v Mhlakaza and another
1997 (1) SACR 515
(SCA) at 523g-h; S v
Seventer
2002 (2) SACR 400
(C) at 404j-405a-b.
[12] The learned regional magistrate
was alive to the above practice, for he ordered the sentences imposed
in counts 2 and 4 to
run concurrently with the sentence in count 1.
But that amounted to paying lip-service to the practice, for those
sentences (2
years and 2 months, respectively) had no significant
effect, with the result that the cumulative effect being an effective
17 years’
imprisonment remains disturbingly disproportionate.
[13] Undoubtedly, the offences of which
the appellant was convicted are grave. The most aggravating factor is
obviously the fact
that the offences were committed in a domestic
setting. Domestic violence, of which women and children bear the
brunt, is an abominable
offence in that the victims are often
helpless and suffer in silence. The appellant has not shown any
remorse. Instead, he sought
to blame the complainant for his conduct.
This was clear during the plea stage, when he sought to plead guilty,
but did not unequivocally
admit all the elements of the offences.
Instead, he sought to justify his violent conduct towards the
complainant. This resulted
in the trial court entering a plea of not
guilty on his behalf. His lack of remorse manifested itself
throughout the trial.
[14] Despite this, an effective
sentence of 17 years is, in our view, disturbingly disproportionate
in the circumstances of the
case. There is certainly a striking
disparity between the sentence imposed by the trial court and that
which we, had we each sat
as the trial court, would have imposed. By
failing to consider the cumulative effect of the sentence, the trial
court committed
a misdirection. This entitles us to interfere with
the sentence and impose what we consider to be an appropriate
sentence in the
circumstances. We would retain all the sentences
imposed in respect of each count. However, to ameliorate the overall
impact, we
would order that the 5 years of sentence of imposed in
respect of count 1, as well as the whole of the sentences imposed in
counts
2 and 4, should run concurrently with the sentence imposed in
respect of count 1.
[15] In the result we make the
following order:
1. The appeal against the sentence is
upheld to the extent set out below;
2. The sentence imposed by the trial
court is set aside and in its place the following is substituted:
‘The accused is sentenced as
follows:
Count 1: 7 years’ imprisonment.
Count 2: 2 years’ imprisonment;
Count 3:10 years imprisonment Count 4:
2 months’ imprisonment.
It is ordered that 5 years imposed in
respect of count I, as well as the whole of sentences imposed in
counts 2 and 4 is to be served
concurrently with the sentence imposed
in respect of count 3. The effective sentence is therefore 12 years
imprisonment.’
3. In terms of
section 282
of the
Criminal Procedure Act 51 of 1977
, the substituted sentences are
ante-dated to 8 December 2008, being the date on the sentences were
imposed.
TM Makgoka
Judge of the High Court
T.P MUDAU
Acting Judge of the High Court
Date heard: 24 February 2015
Judgment delivered: 7 June 2015 APPEARANCES
For the appellant: Adv. M. C.
Ndalane Instructed by Legal Aid South Africa For the State: Adv. CP
Harmzen
Instructed by National Director of
Public Prosecutions, Pretoria.