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2015
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[2015] ZAFSHC 242
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Ludada v S (A258/2014) [2015] ZAFSHC 242 (3 December 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: A258/2014
In
the matter between:
XOLILE
JACOB
LUDADA
Appellant
and
THE
STATE
Respondent
CORAM:
MOLEMELA JP,
et
MOLOI J
et
MOHALE AJ
HEARD
ON:
30 NOVEMBER 2015
JUDGEMENT
BY:
MOLOI, J
DELIVERED
ON:
3 DECEMBER 2015
[1]
This is an appeal against the sentence imposed by my brother
Daffue J, in which he gave leave to appeal against the sentence
only.
The Appellant and two others were convicted on charges of Armed
Robbery with Aggravating Circumstances and Murder.
Both charges were subject to the provisions of Section 51 of Act 105
of 1997 and sentences of fifteen (15) years imprisonment and
life
imprisonment, respectively, were imposed.
[2]
In the heads of argument already the appeal against
the fifteen (15) years imprisonment on count 1, the aggravated
robbery was abandoned. The gist of the appeal against the life
imprisonment was based on the finding of the
court
a
quo
that there were no substantial and compelling
circumstances present to justify a departure from the prescribed
sentence of life
imprisonment. It would be argued that the fact that
the murder was premised on
do/us eventualis,
either
that fact alone or read in conjunction with other mitigating
circumstances, would constitute substantial and compelling
circumstances. This argument was, however and correctly so, also
abandoned during the hearing.
[3]
The Appellant and his co-accused had way-laid passer-by at a secluded
place very late at night and the deceased just happened
to find
himself at the wrong place at the wrong time. A stone bigger than a
cricket ball was hurled at him and landed on his head
fracturing the
skull to such an extent that bones from the skull perforated the
brain tissue. He fell to the ground.
The three
assailants kicked him repeatedly to such an extent that his
ribs broke and penetrated the lungs. This happened
as he was lying on
the ground, helplessly at the mercy of his attackers. The assailants'
action bore all the hallmarks of brutality,
lack of sympathy and
barbaric conduct of "wild dogs attacking their prey"
according to the trial court. The deceased
was thereafter tied up and
thrown into the boot of a car. At the post-mortem examination,
a piece of rope was found around
his neck, but was not tight enough
to result in cardiac arrest or strangulation.
[4]
The respondent was justified, and I agree fully, to argue that
from the manner in which the deceased
was attacked, only
dolus directus
could be inferred and there was no question of
dolus
eventualis
at all. Likewise, the Appellant was well
advised not to pursue that argument at the hearing. It is trite that
a court of appeal,
in this case the full bench of this division can
interfere with the sentencing discretion of the trial court only in
limited circumstances
e.g. where a misdirection was committed by the
trial court and that misdirection was of such a nature, degree and
seriousness that
shows, directly or inferentially that the court did
not exercise its discretion at all or exercised it improperly or
unreasonably
"
S
v
P
illay,
1977
(4) SA 531
(A). See also
S
v
Kibido
1998 (2) SACR 213
(SCA).
[5]
The court of appeal can also interfere with the sentence imposed by
the trial court if sentence "induces a sense of shock"
-
S
v
De
Jager
and Another
1965 (2) SA 616
(A). Life
imprisonment is an extremely harsh sentence, but it is a sentence
prescribed by the law in cases of this nature. A departure
from its
imposition can only be rightly done if substantial and compelling
circumstances are found to exist. The courts have repeatedly
warned
not to depart from imposition of life sentence where the
circumstances justify its imposition for "flimsy
reasons that
cannot withstand scrutiny -
S v
Malgas
2001 (1) SACR 469
(SCA) and
S v
Matyityi
2011 (1) SACR 40
at 53 where Ponnan JA expressed himself as follows:
"Courts
are obliged to impose those sentences unless there are truly
convincing reasons for departing from them".
Moreover, the
provisions of the
Criminal Law Amendment Act 105 of 1997
the
so-called Minimum Sentencing Act, makes no distinction between a
murder committed with
dolus
directus,
dolus
indirectus
or
dolus
eventualis.
It
will be foolhardy in this case to find justification that the
dolus
eventualis
referred to in passing would justify the finding of
substantial and compelling circumstances.
[6]
In the result, the appeal is dismissed.
_______________________
K.J.
MOLOI, J
I
concur.
_______________________
M.B.
MOLOMELA, J P
I
concur.
_______________________
I.B.
MOHALE, AJ
On
behalf of the Appellant:
Adv. P.W. NEL
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On
behalf of the Respondent:
Adv. F. PIENAAR
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN