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[2015] ZAFSHC 52
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Molefe v S (A185/2014) [2015] ZAFSHC 52 (5 March 2015)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case No. : A185/2014
In the matter
between
IZAK
LEBOGANG MOLEFE
….............................................................................................
Appellant
And
THE
STATE
….......................................................................................................................
Respondent
CORAM:
EBRAHIM,
MOCUMIE
et
NAIDOO,
JJJ
HEARD
ON:
23
FEBRUARY 2015
DELIVERED
ON
:
5
MARCH 2015
MOCUMIE. J
[1]
This is an appeal from the Free State High Court (Rampai J sitting as
a court of first instance).The appellant was tried in
the court a
quo
on
three counts. Count one: housebreaking with intent to rob and robbery
read with section 51(2) Act 105 of 1997, count two: murder
read with
section 51(1) Act 105 of 1997 and, count three: contravention of
section 3 Firearms Control Act 60 of 2000 (possession
of a
semi-automatic rifle) read with section 51(2)(A) Act 105 of 1997.
Despite his plea of not guilty on all three counts, he was
convicted
as charged and sentenced to ten years imprisonment on count one. On
count two, twenty years imprisonment and on count
three, fifteen
years imprisonment, of which ten years was ordered to run
concurrently with the ten years imprisonment imposed in
count one.
Thus the appellant was sentenced to an effective forty years
imprisonment. The appellant unsuccessfully appealed against
the
severity of his sentences. The appeal is with leave of the Supreme
Court of Appeal.
[2]
There is no doubt that all the offences were committed out of greed
and regardless of the consequences that might ensue from
attacking a
defenceless and old man of the deceased’s age, seventy two
years. After the appellant and his cohort had broken
into the
deceased’s home during the night, the appellant assaulted the
deceased with a blunt object several times over his
head. The two
then ransacked his home, stole valuable goods including a collection
of rare knives and a firearm, a semi-automatic
pistol. The two then
left the deceased injured and bleeding for the whole night until he
was discovered the next day and taken
to hospital where he succumbed
to the head injuries inflicted as depicted in the post mortem report.
[3]Although
the offences were clearly not planned or premeditated, resistance was
overcome by use of a blunt object to the deceased’s
head. The
deceased sustained severe head injuries which later led to his death.
It hardly needs to be emphasised that armed robberies
and I must add
murders are a plague in this country and a bane of society.
1
By their very nature, they are severe offences deserving of heavy
punishment.
2
These offences were committed in March 2010. The
Criminal Law
Amendment Act 105 of 1997
was already in force. It is not without
significance that the legislature ordained that offences of this
nature attract prescribed
minimum sentences ranging from life
imprisonment to 25 years.
[4]
The appellant’s attorney initially relied on certain
misdirections including that the court
a
quo
should
have found that compelling and substantantial circumstances existed
in respect of both count one and three as it found in
respect of
count two. But ultimately narrowed her argument to the contention
that the cumulative effect of the three sentences
was shockingly
inappropriate.
[5]
Recently in
Muller
and Another v S
3
the
Supreme Court of Appeal made this appeal:
‘
When
dealing with multiple offences, a sentencing court must have regard
to the totality of the offender’s criminal conduct
and moral
blameworthiness in determining what effective sentence should be
imposed in order to ensure that the aggregate penalty
is not too
severe. In doing so, while punishment and deterrence indeed come to
the fore when imposing sentences for armed robbery,
it must be
remembered, as Holmes JA pointed out in his inimitable style, that
mercy and not a sledgehammer is the concomitant of
justice and while
a judicial officer must not hesitate to be firm when necessary ‘he
should approach his task with a humane
and compassionate
understanding of human frailties and the pressures of society which
contribute to criminality.’
[6]
As the Supreme Court of Appeal aptly observed in
Itani
Thomas Mudau v
S
4
:
‘
[it]
is
generally accepted that inordinately long terms of imprisonment do
not contribute to the reform of an accused person. On the
contrary
they have negative effect of denuding the accused of all hope of
rehabilitation.’ ‘Wrong doers must not be
visited with
punishment to the point of being broken.’
5
[7] Accepting as the
appellant’s attorney did, that the sentences in respect of
counts one and two were appropriate what remains
is the sentence in
respect of count three. It is common cause between the state and the
defence that although the appellant was
found in possession of a
semi-automatic pistol, the firearm was not used during the commission
of the offences. The deceased was
hit several times over his head
with a blunt object until he lost consciousness. He died from his
injuries he sustained in hospital
the next day.
[8]
This factor alone together with the appellant’s other personal
circumstances including the fact that he was relatively
young at the
time he committed these offences; he spent at least nine months in
custody awaiting trial
6
amount to compelling and substantial circumstances which justifies a
deviation from the prescribed minimum sentence. In cases of
similar
nature and circumstances that have come before our courts five years
imprisonment has been imposed as the most appropriate
sentence.
7
The
state readily conceded this point from the onset.
[9]
Despite not showing any remorse as the court a
quo
lamented,
as already indicated the appellant was relatively young, a factor
which points to a possibility of rehabilitation; particularly
with
the rehabilitation programs currently available in correctional
facilities across the country. The appellant was for all intents
and
purposes regarded by the court a
quo,
correctly
so, as a first offender. Not a hardened criminal who had been given
opportunities to rehabilitate in the past but misused
such
opportunities. Over and above all these factors, there is nothing
that shows that a lengthy period of imprisonment will not
bring home
the error of his ways. It would be unjust to impose a sentence the
effect of which is more likely to destroy than reform.
It is for that
reason why we consider that forty years imprisonment is excessively
long and rules out any chance of rehabilitation,
and ought to be set
aside.
[10] In the result,
I make the following order.
ORDER
1. The appeal
succeeds only to the extent indicated in paragraph 2 below.
2. The order of the
court a quo in respect of count three is set aside and substituted as
follows:
‘
(a)
Five (5) years imprisonment.
(b) In terms of
section 280
(2) of the
Criminal Procedure Act 51 of 1977
it is
ordered that the five years imprisonment imposed in respect of count
three should run concurrently with the sentence imposed
in respect of
count one.’
3. The sentences (ie
in respect of counts one and two) are otherwise confirmed.”
B.
C. MOCUMIE,
J
I concur
EBRAHIAM, J
I concur
NAIDOO,
J
On behalf of
Appellant: MS. S Kruger
Instructed by:
Justice Centre
On behalf of the
Respondent: Adv. J Botha
Instructed by:
The
Director of Public Prosecution, Free State Division
1
Muller
and Another v S
2012(2)
SACR 545 (SCA) para 7.
2
S
v Mhlakaza
1997
(1) SACR 515
(SCA) 518a-f.
3
Muller and Another
above
para 9
4
Itani
Thomas Mudau v S
(419/12)
[2011] (ZASCA) 191 para 5.
5
S
v
Sparks
and Another
1972
(3) SA 396
(A) 410G.
6
See
S v Vilakazi
2009
1) SACR 552
(SCA) para 60.
7
S
v
Mhlokaja and Another
1997
(1) SACR 515
(SCA) 523
f-g
and
524
g.