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[2015] ZAGPPHC 535
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Mpithi v S (A830/2014) [2015] ZAGPPHC 535 (26 June 2015)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
In
the matter between:
APPEAL NO: A830/2014
THABO
PETROS
MPHITHI
APPELLANT
and
THE
STATE
RESPONDENT
J
U D G M E N T
MOLOPA-SETHOSA
J:
[1]
The appellant was arraigned in the Circuit Local Division of the High
Court, held at Delmas on the following charges:
[1.1]
Count 1: Murder, read with the provisions of s 51 ( 1) of Act
105 of 1997 (the Act);
[1.2]
Count 2: Robbery with aggravating circumstances;
[1.3]
Count 3: Robbery with aggravating circumstances; and
[1.4]
Count 4: Rape in contravention of s 3 of Act 32 of 2007.
[2]
The charges arose from an incident which occurred on the night of 28
April 2008, in an open field, at Riverside, Kwa-Thema,
and during
which the deceased was accosted by the appellant and his friends,
robbed of her takkies and stabbed to death in an attempt
to rape her.
[3]
The appellant appeared in the court
a
quo
as
accused 4. On 12 February 2009 the appellant pleaded guilty on counts
1 and 2 and on count 4 he pleaded guilty to abetting as
an accomplice
to an attempt to rape (a lesser offence to count 4). The State
withdrew count 3 and accepted the plea of the appellant.
The
appellant was convicted as pleaded. The trial of the other accused,
who had all pleaded not guilty on all counts, was separated
from that
of the appellant, and postponed
sine
die.
[4]
In his plea statement in terms of
s 112(2)
of the
Criminal Procedure
Act 51 of 1977
which was handed in, the appellant describes his role
and participation in the offences he was convicted of, as follows:
Count
]
9.1
On 28 April 2008 at Kwathema(sic) I killed E. I. S.(the deceased) by
stabbing her several times
with a knife.
9.3
I admit that she died as of stab wounds
to the
abdomen.
9.4
I
admit
that
I
knew
what
I
did
was
wrong
and
when
I
stabbed
the
deceased she
could
die
as
a
result thereof
Count
2
9.5
I admit
that I was
threatening
the deceased
with a knife
and
holding
her
while she was searched
and her takkies were taken by accused
3 Themba
Mvubu.
9.6
I
admit that
I
had no
right to
threaten the
deceased
while her takkies were
taken from
her.
9.
7
I admit
that the
deceased
was
the rightful
owner
of the takkies
that were
taken from
her
by Themba Mvubu.
9.8
I
admit
that
I
wanted
to
rob
the
deceased
together
with
my
co-accused
and
that
is
the
reason
why
I
threatened
her
with
the
knife.
Count
4
9.9
I
admit that on 28 April
2008
accused
2 Johannes
Mahlangu
tried
to
insert his
penis
in the vagina
of the deceased
without her consent.
9.10
I
admit that
while
Johannes
Mahlangu was trying to insert his
penis into
the
vagina of
the
deceased I
was holding her legs.
9.11
I
admit that
at the
time
when
Johannes Mahlangu tried to
insert
his
penis
in
the
vagina of
the
deceased,
I
knew that it
was wrong to
help
someone while
he is
trying to
inset
his
penis into
the
vagina of
a
woman without her
consent.
10
10.1
1was
drinking at Noge
Tavern during the
evening
of 27 April
2008 when
Khumbulani
Magagula, Johannes
Mahlangu
and
Themba Mvubu
(accused
1,
2
and
3) arrived. I
had already
had
4 beers when they arrived
at about
22:00 and I continued
to drink with them until about
01:00 the next morning of 28 April
2008 when I
left the tavern
in the company of my co-accused.
10.2
I was drinking Black Label
quarts and although I
was under the influence of alcohol, I was aware of what was happening
around me, aware of my own
actions and I can still
remember what happened.
10.3
I wa
s
friends with
Themba Mvubu
but not with accused
1 and 2 and 1got
to
know them through
Themba Mvubu.
10.4
1
did not know
the deceased
before her death.
10.5
We came across
the deceased
and
he
r
friends on our way home and our
intention was
to rob.
10.6
Khumbulani
Magagula
suggested
that the deceased
must be raped because we did
no
t
find any money
in her
possession.
Everybody
else agreed
and she
was pulled
to the grass.
10.7
While
Johannes
Mahlangu
was
trying to insert his penis
in the vagina of the
deceased,
Themba Mvubu
and Khumbulani
were holding her arms.
10.8
After
Johannes
Mahlangu
tried to rape the deceased,
she
recognised Themba Mvubu.
10.9
Themba
Mvubu
gave me
the
knife
when
we
started
searching the deceased and
I
still had it
when the
deceased recognised Themba
Mvubu.
10.10
Themba
Mvubu confirmed that
the
deceased knew him
and
that
we
are
all going to
be
arrested and that
I
must do
something. Ipanicked
because I
did not
want to
be
arrested and
1stabbed the
deceased.
10.11
11
Khumbulani Magagula kicked the
deceased into
a
nearby stream
after
I
stabbed
her and we left.
11
11.1
1
reported at
the
police
station later on
28
April 2008 after I
heard that th
e
police were looking for me and
I
gave them the knife that
I still had.
11.2
I
decided
t
o
plead
guilty
because
I
am
ashamed
about
what
I
did
and
my
conscience
is
bothering me.
I want to
take
responsibility
for my
actions.
11.3
I
have
already through my legal
representative
informed
th
e
prosecution
that I am prepared to
give my co-operation
and
to
testify; in any further
proceedings that they
intend
instituting
in connection with
the death and the surrounding
circumstances
after
my conviction and sentence.
"
[7]
From the above it appears that the appellant threatened the deceased
with a knife while she was robbed of her takkies by a co-accused.
He
was also holding the legs of the deceased while a co-accused tried to
insert his penis into the private part of the deceased.
He stabbed
the deceased several times with a knife and caused her death.
[8]
On the 13
th
of February 2009 the appellant was
sentenced as follows:
[10.1] Count
1: 18 years' imprisonment;
[10.2]
Count 2: 15 years' imprisonment;
[10.3]
Count 4: 9 years' imprisonment;
[10.4] the court
a quo
further ordered that 10 years of the sentence in respect of count
2 shall run concurrently with the sentence in respect of count
1; and
[I 0.5] the court
a
quo
further ordered that:
"in respect of the
sentence of 9 years, relating to count 4, the
period the accused has been in custody from
28
th
April
up to
13'" February
2009,
shall be deducted
toward the determination
or
the period he
must
serve,
after
taking
into
consideration
the
credits and
remission
granted
to
him.
"The
effective sentence is thus 32 years imprisonment.
[11]
On the 9 April 2014 the appellant applied for and was granted leave
to appeal against sentence to this court.
[12]
The appellant admitted the following previous convictions:
[12.1]
26 March 2003- assault with the intent to do grievous bodily harm;
he
was sentenced to 12 months imprisonment, wholly suspended for a
period of 5 years on condition that he is not found guilty of
assault
where direct imprisonment is imposed without a fine or assault with
intent to do grievous bodily harm committed during
the period of
suspension;
[12.2]
26 March 2003-Theft; he sentenced to 6 months imprisonment, wholly
suspended for a period of 5 years on condition that he is not found
guilty of theft or attempted theft committed during the period
of
suspension.
[13]
The appellant testified in mitigation of sentence. The personal
circumstances of the appellant were:
1) He was
born on the [….] and […..] years old when the offences
were committed;
2) He
attended school up to standard 9;
3)
At the time of his arrest he was self-employed selling fruit and
vegetables at a stall earning an income of
approximately R400 to R500
per week;
4) He
further earned an income of R250 a fortnight from temporary
employment at World Market in Springs, where
he weighed fruits and
vegetables sold at the market.
5) He
is single;
6)
He has one child aged [……..];
7)
His child resided with the child's mother;
8)
He contributed to his household and also maintained his child;
9)
His mother has passed away, his father is still alive;
I0) He a
brother and 4 sisters;
11) He testified
that he was remorseful for his actions;
12)
He asked the family of the deceased for forgiveness.
[14]
By agreement between the parties, the State
handed in the following exhibits
in aggravation of
sentence:
14.1
A photo album of the scene of the crime (Exhibit "B")
14.2
A copy of the photo album of the
post
mortem
(Exhibit "C")
14.3
The
post mortem
report of the deceased (Exhibit "D").
The cause of death is indicated as "stab wounds abdomen
(transected aorta)"
[15]
The state also called the following witnesses in aggravation of
sentence:
[15.1]
Dr G.J. Du Preez:
He
testified that he was a medical practitioner and that he conducted
the
post mortem
examination on the body of the deceased. He
found eight (8) stab wounds in total on the deceased's body,
including two (2) fatal
wounds on the abdomen. That one of the
abdominal wounds penetrated the intestines as well as the abdominal
aorta, cutting the main
blood vessel that took blood from the heart
to the abdomen and the legs. He further testified that the deceased
was a
virgo
intata,
i.e. that she had
never had intercourse before and was also not sexually penetrated on
the day of the incident; there was no tear
to her hymen and no
remains of semen. She had an injury on the genitalia that was an
indication of blunt trauma to the skin on
the genitalia. He testified
that the cause of death was severe intra-abdominal haemorrhage. Under
cross examination he stated that
the stabbing of the deceased was a
frenzied attack.
[15.2
]
Mally
Elizabeth
Simelane:
She
testified that she was the deceased's mother. She further testified
that the deceased was a former soccer player for Banyana
Banyana, the
South African national women's soccer team; and she was an
internationally qualified soccer referee. She testified
that the
deceased helped HIV positive people, was the coordinator of an HIV
positive group and sponsored some children who were
coming from
disadvantaged backgrounds. The deceased was taking care of her
family. She and the deceased's father were both pensioners.
She/deceased liked getting involved in sporting activities and was
loved by her community.
[16]
Counsel for the appellant in the court
a
quo
argued that the following factors, cumulatively considered,
amounted to substantial and compelling circumstances justifying the
imposition of a sentence less than the prescribed minimum of life
imprisonment:
1)
The appellant was still relatively young;
2) The
appellant showed good prospects of rehabilitation;
3) The
appellant showed remorse by pleading guilty;
4)
The appellant was prepared to assist the State with any further
prosecution of the other accused involved
in the matter;
5)
In the appellant's plea explanation he did not shift the blame;
6) The
appellant is taking responsibility of his actions;
7) The
incident was not planned;
8) He
was drinking prior to the incident;
9) The
appellant stabbed the deceased in a fit of panic.
[17]
The Court
a quo
found substantial and compelling circumstances
mainly in the appellant's age, his intoxication during the commission
of the offences,
his level of education and that he committed the
murder when he panicked, and thus deviated from the minimum sentence
of life imprisonment
in respect of count 1.
[18]
The appellant in essence appeals against the severity of the sentence
and contends that the court
a quo
failed to properly take the
factors set out in para [17] above into account and that the
cumulative effect of the sentences is too
harsh.
[19]
The appellant contends that the failure by the court
a quo
to
properly take the above factors into account resulted in a cumulative
sentence of inappropriate length. Counsel for the appellant
submitted
that the court
a quo
ought to have ordered a portion of the
sentence in respect of count 4 to run concurrently with the sentences
in respect of counts
1 and 2.
[20]
The appellant further raised a point
in limine
in respect of
the reduction ordered as part of count 4 the wording of which is
confusing as it is impossible on a reading thereof
to determine
exactly what period of to be deducted.
[21]
The appellant had been in custody awaiting trial for almost 10
months. Counsel correctly submitted that when taking into account
the
wording of the order, the period of almost 10 months must be deducted
which could have been achieved by the imposition of 8
years' instead
of 9 years' imprisonment.
[22]
I agree that the second part of the court order in respect of the
sentence in count 4 indeed creates confusion, and that the
simplest
way is to just impose a determinate sentence, deducting
the period the appellant spent in
custody awaiting
trial, which is almost one (1) year.
[23]
Counsel for the respondent, on the other hand, submitted that the
sentence was in order; that the court
a
quo
considered sentence in a balanced manner and that it cannot be
said that the court
a
quo
committed any
irregularity or misdirection.
[24]
Counsel however conceded that a correction should be made by this
court to the reduction portion to count 4.
[25]
The imposition of a sentence is pre-eminently within the discretion
of the sentencing court. It is trite that a court of appeal
does not
lightly interfere with a sentence imposed by the court of first
instance (see
R
v Lindley
1957 (2) SA 235
(N)).
A court of appeal will interfere with the sentence only if there is a
material misdirection or if the court could not, in
the circumstances
of the case, reasonably have imposed the particular sentence. In S
v
Salzwedel
1999 (2) SACR 586
(SCA) 591F-G it was held:
"A court of appeal
was entitled to interfere with a sentence imposed by a trial court in
a case where the sentence
is
'disturbingly inappropriate', or totally out of proportion to
the gravity or magnitude of the offence, or sufficiently disparate,
or vitiated by misdirections of a nature which shows that the trial
court did not exercise its discretion reasonably.
"
[26]
The general approach to be followed by a court of appeal with regards
to sentence, is set out as follows in S
v Pieters
1987
(3) SA 717
(A) 727:
"Met betrekking tot
appelle teen vonnis in die algemeen is daar herhaaldelik in talle
uitsprake van hierdie Hof beklemtoon
dat vonnis-oplegging berus by
die diskresie van die Verhoorregter. Juis omdat dit so is, kan en sal
hierdie Hof nie ingryp en die
vonnis van 'n Verhoorregter verander
nie, tensy dit blyk dat hy die diskresie wat aan horn toevertrou is
nie op 'n behoorlike of
redelike wyse uitgeoefen het nie. Om dit
andersom te stel: daar is ruimte vir hierdie Hof om 'n Verhoorregter
se vonnis te verander
alleenlik as dit blyk dat hy sy diskresie op 'n
onbehoorlike of onredelike wyse uitgeoefen het. Dit is die
grondbeginsel wat alle
appelle teen vonnis beheers.
"
[27]In
the S
v Pillay
1977 (4) SA 531
(A) 535 E-G, the court
held:
"....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 a nature, degree,
or seriousness that it shows, directly or
inferentially, that the
court did not exercise its discretion at all or exercised it
improperly or unreasonably.
"
[28]
In terms of
section 51(
I ) read with
Part I
of Schedule 2 of Act I
05 of 1997, the applicable minimum sentence for the murder (count 1)
was life imprisonment, because the
death of the deceased was caused
during a robbery with aggravating circumstances. A minimum sentence
of 15 years' imprisonment
was also applicable to count 2 (robbery
with aggravating circumstances).
[29]
As I have already mentioned, the court
a
quo
found substantial and compelling circumstances mainly in the
appellant's age, his intoxication during the commission of the
offences,
his level of education and that he committed the murder
when he panicked.
[30]
In S
v Matyityi
2011 (1) SACR 40
(SCA), approximately
nine years after S
v
Malga
s
,
the Court noted that criminality is still on the rise in our
country, despite the imposition of minimum sentences, and has again
stressed the relevance of the legislation (para [23].
[31]
In S
v Makatu
2014 (2) SACR 539
(SCA) para [30] the
Court remarked:
"For some time now
this country has witnessed an ever increasing wave of crimes and
violence, notably murder and sexual offences.
Undoubtedly, these
crimes seriously threaten the social and moral fabric of our society.
As a result our society is seriously fractured.
The majority of our
people, particularly the vulnerable and the defenceless, which
include women, children, the elderly and infirm,
live in constant
fear. It is no exaggeration to say that every woman or girl in this
country is a potential victim of either murder
or rape ... ...... ...
"
and
also (para [31]):
"......................,
despite
all
these
valiant
efforts
by
government, we
are
not
winning the
war
against these
crimes.
"
[32]
Taking into consideration all the circumstances of this case, it
cannot in my view, be said that the effective sentence is
shockingly
inappropriate.
[33]
Evidently sentencing in this matter must attach due weight to the
gravity of the crimes for which the appellant was been convicted.
The
seriousness of the crimes must weigh heavily in deciding upon
appropriate sentences. The trial court was fully aware thereof
and
imposed a sentence of appropriate severity, but in favour of the
appellant, found substantial and compelling circumstances
to exist
and did not impose life imprisonment in respect of count 1. 10 years
of the sentence in count 2 was ordered to run concurrently
with the
sentence in count 1.
[34]
The question is whether the court
a
quo
properly considered the concurrency of the sentences and whether
the cumulative sentence is shockingly inappropriate. I cannot find
on
the facts before this court that the cumulative sentence is
shockingly inappropriate or that the learned judge committed any
misdirection.
[35]
The effective sentence is tempered by the fact that a sentence of
life imprisonment was not imposed as prescribed minimum sentence
on
the charge of murder (count 1); a substantial period of
imprisonment [10 years] on the charge of robbery with aggravating
circumstances (count 2) was ordered to run concurrently with the
sentence on count 1; the appellant will in addition serve a shorter
term of imprisonment as the term he was in prison awaiting trial will
be deducted in the sentence this court proposes to impose
on count 4.
No doubt the offence perpetrated on the deceased was a fortuitous,
brutal, senseless attack on a defenceless woman
that shocked the
deceased's family, the sporting fraternity and the community at
large. Violence against women remains rife and
prevalent and has
become pervasive and endemic, and sentencing in such matters must
reflect the gravity of the crime, for society
not to lose confidence
in the criminal justice system. In
The
Director
of
Public
Prosecutions v
Mngoma
2010 (1) SACR 427 (SCA) 432, para
[14], the following is stated:
"afailure
by our courts to impose appropriate sentences,
i
n
particular for
violent crimes by
men against women, would lead to society losing its confidence in the
criminal
justice
system.
"
[36]
Having considered the arguments advanced in this court I am satisfied
that the sentences imposed duly reflect the gravity of
the crimes and
that the sentences are appropriate and proportionate taking
into account the prevalence of violence on women
and the vulnerable
in South Africa (cf S
v Roberts
2000 (2) SACR 522
(SCA)).
[37]
Society cries out for protection against all types of criminals who
should not be sent to prison today to return tomorrow showing
bold
and daring faces as heroes of crime in a community that shuns crime.
The convicted offenders must do their stint in prison
for all serious
crimes (as the ones here) so that when they return they must respect
the right to life, property and dignity and
all other rights of the
citizens of this country, including the rights of women and children.
[38]
In my view, interference with the sentence and a further reduction of
the effective term of imprisonment will disregard the
seriousness of
the offence, the interests of the society and the other objectives of
sentence and will over-emphasize the personal
interests of the
appellant.
[39]
The courts are there to protect the society by imposing appropriate
sentences and send a clear message that there is no room
for
criminals in our society. This also enhances the confidence of the
public in the judicial system.
[40]
Taking into consideration all factors, the effective sentence is
appropriate. The appeal against sentence accordingly falls
to be
dismissed, save that the period of 9 years' imprisonment on count 4
wi ll be substituted with a
period
of 8 years' of imprisonment. The effective sentence is thus 31 years'
imprisonment.
[41]
I n the result the following order is made:
1. The appeal against the
sentence on count 4 is upheld only insofar as the period of 9 years'
imprisonment is replaced with a period
of 8 years' imprisonment.
2. The appeal against the
sentences on counts 1 and 2 is dismissed. The effective sentence is
thus 31 years' imprisonment.
L
M MOLOPA-SETHOSA
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered.
FHD
V AN OOSTEN
J
UDGE
OF THE HIGH
COURT
I
agree.
S
POTTERILL
JUDGE
OF THE HIGH COURT
COUNSEL
FOR APPELLANT COUNSEL FOR RESPONDENT
DATE
OF HEARING DATE OF JUDGMENT 26
JUNE 2015
LA
VAN WYK GCJ
MARITZ 12
JUNE
2015