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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2015] ZAKZPHC 15
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Ncobela v S (AR74/14) [2015] ZAKZPHC 15 (2 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
AR
NO: AR 74/14
In
the matter between:
MTHEMBENI
RICHARD NCOBELA
and
THE STATE
Order:
‘
The
appeal is dismissed’
APPEAL
JUDGMENT
K
PILLAY J
(Vahed et Poyo Dlwati JJ
concurring):
[1]
On 22 December 2010, three men, Ncobela (appellant), Zulu and
Bunting, turned an evening of enjoyment for 3 friends,
en
route
home from a musical concert, into
a night of tragedy, pain and terror.
[2]
As they stood waiting for a lift, they were accosted by the appellant
and the aforesaid Zulu and Bunting who stabbed them and
took a cell
phone, cash and a pair of sandals. Zulu and Bunting were
accused 2 and 3 respectively in the Court
a
quo
. The appellant was accused 1.
Charges were withdrawn against Zulu
in
absentia
as he had died.
[3]
Two of the friends, Nkosikhona and Mthandeni, survived the attack,
however the third, Sabelo (deceased), succumbed to his injuries
–
a stab wound to the neck.
[4]
According to Nkosikhona and Mthandeni, while they stood at a hiking
spot in Margaret Road, with the deceased, the appellant
and his two
companions, the aforesaid Zulu and Bunting, approached. They
were each grabbed by one of the three. The
one who grabbed
Nkosikhona demanded a cell phone and then stabbed him in the chest
area, twice. He fought back, freed himself
and ran to a nearby
garage to seek help whilst his friends were being similarly attacked.
[5]
His cell phone was removed from his pocket. He identified
Exhibit 1 as the phone in question by the fact that his name
was
inscribed on it and that it contained his photographs. He was
admitted to hospital for one night. Although he identified
the
appellant as his assailant, the identification was properly rejected
by the trial court.
[6]
The trial court however accepted the identification evidence of
Mthandeni who corroborated Nkosikhona’s version of the
events.
He was able to identify two of the assailants, namely the erstwhile
accused 3 and one Sphamandla. He described
the third assailant
as being short and dark, which description, it was not disputed,
fitted the appellant.
[7]
A further witness, Mzikayise Hlongwa, testified that he saw the
appellant, Zulu and Bunting walk towards the hiking spot on
the night
in question. A few minutes thereafter he saw the two witnesses run
towards the garage with stab wounds. Later at
about 1 am he
went to the appellant’s home where he found the appellant
drinking with Sphamandla and others. An incident
occurred where
he was allegedly stabbed by the erstwhile accused 3 who was
later acquitted of the charge. He did not
see who stabbed the
complainant.
[8]
It was also common cause that Exhibit 1 was recovered from one
Mnyamezeli Nzambe who acquired it from Mhleli Zulu. Zulu
confirmed this evidence and averred that on 24 December 2010 he was
asked to sell this phone by Sphamandla, which he did, for R400.00.
He was given R50.00 for his effort.
[9]
The appellant testified that he had attended the same musical event
as the complainants but had left at 9 pm. He went
home after
escorting his girlfriend to her transport. He denied any
involvement in the matter.
[10]
The trial court critically assessed the evidence in its entirety and
rejected the appellant’s denial. The appellant
and
Bunting were convicted of the following offences:
Count
1: Murder
Count
2: Attempted Murder
Count
3: Attempted Murder
Count
4: Robbery with Aggravating Circumstances.
The
following sentences were imposed on appellant:
‘
On
Count 1 Accused No 1 is sentenced to Imprisonment for Life. On
Counts 2 and 3 the accused is sentenced to Five (5) years
imprisonment on each count. On Count 4 the accused is sentenced
to Ten (10) years imprisonment. The sentences on Counts
2, 3
and 4 will run concurrently with the sentence on Count 1.’
The
reasons furnished for the conviction amply support the verdict.
[11]
With leave of the court
a quo
,
the appellant appeals against the sentence of life imprisonment.
He impugns the sentence on the basis that there were substantial
and
compelling circumstances justifying the imposition of a lesser
sentence, that the sentence was excessive and disproportionate
to the
crime, the criminal and the legitimate needs of society. There
appears to be no challenge to the sentences imposed
in respect of
Counts 2, 3 and 4.
[12]
It is well established that the discretion of a trial Court with
regard to the imposition of sentence can only be interfered
with on
limited grounds. Thus, if the sentenced imposed is vitiated by
irregularity, is startlingly inappropriate or induces
a shock,
interference would be warranted. This was crisply summed up in
S v Bogaards 2013(1) SACR 1 CC para
41
as follows:
‘
It
can only do so where there has been an irregularity that results in a
failure of justice; the court below misdirected itself
to such an
extent that its decision on sentence is vitiated; or the sentence is
so disproportionate or shocking that no reasonable
court could have
imposed it.’
[13]
In this case the trial court’s assessment of sentence was
thorough. Counsel for the appellant was hard pressed
to point
to any misdirection. His only argument was that the sentence
imposed on Count 1 was unduly harsh. The learned
trial Judge
clearly balanced the proportionality of the crime to the offender and
the interests of society before finding that
life imprisonment was
warranted. The question which thus arises is whether the
sentence on Count 1 is unduly harsh.
[14]
The acts of violence were perpetrated with no justifiable
motivation. The extreme violence used was not warranted.
As a result of the appellant and his cohorts’ callous disregard
for human life, an intelligent young man, as it emerges from
the
pre-sentence report, lost his life. The value of a cell phone
was regarded as being higher than that of life and limb.
[15]
One of the aggravating factors, as the trial court found, was the
absence of remorse. In such instances it is well-known
that
rehabilitation would be difficult. There were no facts placed
before the trial Court pointing to any reduction in appellant’s
moral blameworthiness.
[16]
In addition, the appellant does not have an unblemished criminal
record. His previous convictions which list housebreaking
with
intent to steal and theft and robbery indicate that the previous
sentences imposed had no salutary effect on him.
[17]
I am therefore satisfied that the trial court’s imposition of
life imprisonment was manifestly correct.
[18]
The appeal is dismissed.
__________________
K
Pillay J
__________________
Vahed
J
__________________
Poyo
Dlwati J
Appearances
For
the Appellant: Irshaad Khan
c/o
PMB Justice centre
183
Church Street
Pietermaritzburg
3201
For
the Respondent: The Director of Public Prosecutions
3
rd
Floor
High
Court Building
301
Church Street
Pietermaritzburg
3201
Date
of Hearing: 26 January 2015
Date
of Judgment: 2 February 2015