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[2015] ZANCHC 2
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Mfeka v S (CA&R 116/14) [2015] ZANCHC 2 (4 May 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case No: CA&R 116/14
DATE: 04 MAY 2015
In the matter:
LEBOGANG ALFRED
MFEKA
.....................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram: Phatshoane J et Mamosebo AJ
JUDGMENT ON APPEAL
Heard on: 23-03-2015
Delivered on: 04-05-2015
Phatshoane J:
1. Mr Lebogang Alfred Mfeka, aged 28,
the appellant, was arraigned in the Magistrate Court for the district
of Warrenton before
Magistrate Mr E.J van der Westhuizen on a charge
of assault with intent to cause grievous bodily harm. On 02 July 2012
he was convicted
as charged and sentenced to three (3) years
imprisonment, one (1) year of which was wholly suspended for a period
of three (3)
years on certain conditions. On 03 July 2012 the Court a
quo granted him leave to appeal against his sentence only and was
released
on bail pending this appeal.
2. The factual background leading to
the appellant’s conviction paints the following picture. On 25
December 2011, around
lunch time, the 20 year old Mr Lesego Moabi,
the complainant, and his friend, Mr Dikgang Abel Mocumi, were seated
at Lesego’s
residence when they saw the appellant in the
street. He was accompanied by his girlfriend, Ms Lerato Moketsi, and
Mr Kabelo Nicolaas
Leeuw. The appellant gave Kabelo money to buy some
beers for him. Lesego followed the appellant demanding that he pay
him back
the R10.00 he owed him. The appellant, in turn, insulted
Lesego by his mother’s private parts. Lesego retaliated by
exchanging
derogatory epithets with the appellant. Lesego then walked
away. Kabelo also hurled some insults at Lesego and gave the
appellant
a bottle of beer. The appellant broke this bottle, accosted
Lesego, stabbed him with its shard on the left arm, and ran away.
Lesego
was unarmed. He bled and was taken to Warrenton Hospital.
3. Dr P B Mokhua, a medical
practitioner, examined Lesego on 25 December 2011 and completed the
medical report (J88). He was not
called to testify, however, his
clinical findings are recorded as follows in the J88 which was
admitted in evidence as exhibit
“A” by consent: “Very
large laceration on the left hand with possible tendon or nerve
injury”. It is further
recorded that Lesego was referred to
Kimberley Hospital for further management. The conclusion reached by
the medical practitioner
was that Lesego suffered a serious non- life
threatening injury.
4. Lesego testified that he was
admitted at Kimberly Hospital for four days. The observations made
during the Court proceedings
were that Lesego had a scar tissue with
numerous surgical sutures on the left upper arm close to the elbow
and that his wrist had
bended. Lesego intimated that it was so bended
due to the injury inflicted by the appellant. He was unable to lift
his hand or
use it properly.
5. The appellant is a first offender,
unmarried with two minor children aged 5 and 6. At the time of the
sentencing phase on 02
July 2012 he had, since 2011, been
self-employed as a builder, earning R1000 per month and maintained
his children and his mother.
He left school in Std 6 (Grade 8). With
regard to the offence he committed he intimated that he made a
mistake and asked that he
be forgiven. Counsel representing him in
the Court a quo urged that he receive a wholly suspended sentence as
this would deter
him from committing further offences. The Prosecutor
was of the view that a thirty six (36) months term of direct
imprisonment
would be appropriate and sent a clear message to the
community of Warrenton that crime does not pay or solve problems.
6. The appellant’s grounds of
appeal came down to the following:
6.1 That the Magistrate failed to take
into account his personal and mitigating circumstances.
6.2 That the Magistrate overemphasized
the seriousness of the offence, the interest of the society and the
prevalence of the offence
to the large exclusion of his personal
circumstances.
6.3 That the Magistrate erred in not
taking into account that the injury sustained by Lesego was not life
threatening.
6.4 That the Magistrate misdirected
himself by not considering other sentencing options and confined
himself to the submissions
made by counsel.
6.5 That the sentence imposed is unduly
harsh, shockingly inappropriate and was not blended with a measure of
mercy.
7. The approach to sentencing by an
appellate Court is well known and was reaffirmed as follows in S v
Kibido
1998 (2) SACR 213
(SCA) at 216g-j:
“Now, it is trite law that the
determination of a sentence in a criminal matter is pre-eminently a
matter for the discretion
of the trial court. In the exercise of this
function the trial court has a wide discretion in (a) deciding which
factors should
be allowed to influence the court in determining the
measure of punishment and (b) in determining the value to attach to
each factor
taken into account (see S v Fazzie and Others
1964 (4) SA
673
(A) at 684A - B; S v Pillay
1977 (4) SA 531
(A) at 535A-B). A
failure to take certain factors into account or an improper
determination of the value of such factors amounts
to a misdirection,
but only when the dictates of justice carry clear conviction that an
error has been committed in this regard
(S v Fazzie and Others
(supra) at 684B - C; S v Pillay (supra) at 535E).
Furthermore, a mere misdirection is not
by itself sufficient to entitle a Court of appeal 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 (see Trollip JA in S v Pillay (supra) at 535E - G).”
See also S v Moswathupa
2012 (1) SACR
259
(SCA) at 261d-f para 4, S v Sadler
2000 (1) SACR 331
(A) at
334h-335a para 8.
8. In his two pages long sentence the
Magistrate states that Lesego lost some of the use of his left arm
and alluded to the prevalence
of crime (general deterrence). He
concluded:
“I will take into account that
you are 28 years old, that you fathered two children aged 5 and 6,
that you are a healthy person,
that you are a builder, that you earn
about a R1000 per month. According to you, you have got dependants,
it is the children as
well as your mother. Your level of education is
standard 8. Your attorney asked that I should impose a suspended
sentence and the
prosecutor asked that I should send you directly to
jail. I am of the opinion that the following is a proper sentence.
The accused
is sentenced to undergo three years imprisonment of which
one year is suspended for three years on condition that the accused
is
not convicted of assault with intent to do grievous bodily harm or
any offence which constitutes a competent verdict to assault
with
intent to do grievous bodily harm committed within the period of
suspension and which he is sentenced to a term of imprisonment
without the option of a fine and I am going to find you to be unfit
to possess a firearm.”
9. The Magistrate made reference to the
well-known triad in S v Zinn
1969 (2) SA 537
(A) at 540G – H in
imposing sentence. As more fully appears from his brief reasoning he
listed the appellant’s personal
and mitigating circumstances
and intimated, without more, that he is taking them into account. In
my view the Magistrate paid mere
lip service to the appellant’s
mitigating circumstances. This failure amounts to a material
misdirection which warrants interference
with the sentence imposed.
10. Mr Cloete, the defence counsel
urged, in the event the sentence was to be upset, that the appellant
receive a suspended sentence
or that the matter be remitted to the
Court a quo for consideration of imposing a sentence in terms of s
276(1)(h) of the Criminal
Procedure Act, 51 of 1977(the CPA),
(correctional supervision). Ms Mabaso, for the State, is of the view
that there is no merit
in the appeal and stands to be dismissed.
11. There can be no doubt that assault
with intent to cause grievous bodily harm is a serious offence. As
was held in S v McMillan
2003 (1) SACR 27
(SCA) at 34f-g para 10
perceived consistency of punishment was an unmistakable requirement
of justice. It disallows the imposition
of sentences entirely out of
keeping with sentences in comparable cases. It holds true that each
case should be judged on its own
merits and that the circumstances of
the cases differ. However, the sentences imposed in similar cases
would always provide a useful
guide. In S v Singh
2002 (2) SACR 562
(SCA) the appellant had been convicted of assaulting the complainant,
who he claimed was his girlfriend, by breaking a glass and
cutting
her on the chin with it and later assaulting her by punching her. He
was a first offender, with dependent children; he
committed the
offence while in a jealous rage and when intoxicated. The attack was
not premeditated. The injury inflicted on the
complainant was a
severe one, which left a scar, and she required further medical
treatment. His sentence of four years' imprisonment,
subject to the
provisions of s 276(1)(i) of the CPA, was confirmed on appeal.
12. Another case in point is S v Eales
1991 (1) SACR 160
(N) where the appellant had been convicted in a
Magistrates’ court, inter alia, of assault with intent to do
grievous bodily
harm in that he had, in an unprovoked attack in a
hotel, struck the complainant more than one blow on the head with a
beer glass,
causing severe injury. The attack caused wounds to the
complainant's face, the scars of which he would carry for the rest of
his
life. The appellant was sentenced to three years' direct
imprisonment. On appeal the sentence was altered by suspending one
year
of the three years' imprisonment for five years on certain
conditions.
13. There was certainly no genuine
empathy or remorse shown by the appellant for his misdemeanour. While
he says that he made a
mistake by stabbing Lesego, he maintained that
he had not yet made peace with him. He instigated the insults
following Lesego’s
demand that he return his R10.00. Lesego was
unarmed when the appellant attacked him. He was years older than
Lesego who was still
attending school when the incident took place.
He ought to have played an exemplary role than to be involved in a
street brawl
with Lesego. Although Lesego did not sustain a
life-threatening injury it was nevertheless still a serious wound
which kept him
in hospital for four days. These are serious
aggravating circumstances which cannot be ignored. Therefore, to the
extent that the
Magistrate concluded that a custodial sentence was
appropriate, he cannot be faulted.
14. It was argued on the appellant’s
behalf that the alcohol that both of them drank led to their exchange
of insults and
that there was a measure of provocation which was
fuelled by these insults. I cannot agree because, in their own words,
they were
moderately under the influence of alcohol and there is no
evidence that the appellant lost control of his emotions due to his
alcohol
consumption as his counsel sought to argue.
15. The fact that the appellant had no
previous brushes with the law, was gainfully employed and contributed
towards the wellbeing
of his children and his mother are all positive
and weighty extenuating factors. At the age of 28 he has some good
prospects of
rehabilitation and some window of hope must be left open
for him. Nothing on the evidence led suggests that he has a
propensity
for violence or is a danger to society. In addition, the
offence appears to have been perpetrated in a spur of the moment. I
am
therefore of view that a reduced custodial sentence is called for.
16. In the result:
Order:
1. The appeal is upheld.
2. The sentence of the Court a quo is
set aside and replaced with the following:
“The accused is sentenced to two
(2) years imprisonment, one (1) year of which is suspended for three
(3) years on condition
that the accused is not convicted of an
assault to the person of another committed during the period of
suspension and for which
offence he is sentenced to a period of
imprisonment without the option of a fine.”
Phatshoane J
I concur:
Mamosebo AJ
On behalf of the Appellant Adv P.
J. Cloete
Instructed by Kimberley Justice
Centre
On behalf of the Respondent Adv
J.S. Mabaso
Instructed by Director of Public
Prosecutions