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[2015] ZAKZPHC 6
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Mthethwa v S (AR76/14) [2015] ZAKZPHC 6; 2016 (1) SACR 510 (KZP) (16 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR 76/14
REPORTABLE
In
the matter between:
ANDILE
MSHANA PAUL JUSTICE
MTHETHWA
..................................................
APPELLANT
v
THE
STATE
..................................................................................................................
RESPONDENT
APPEAL
JUDGMENT
POYO
DLWATI J (K PILLAY et VAHED JJ Concurring):
[1]
The appellant was charged and convicted of one count of murder (count
1) and one count of attempted murder (count 2).
At the time of
the commission of these offences the appellant was 16 years and 6
months old. On 31 January 2007 he was sentenced
to 18 years
imprisonment on count 1 and 8 years imprisonment on count 2.
The sentences were ordered to run concurrently.
They were also
antedated to 20 April 2006, being the date when judgment on
conviction was handed down by the trial court. The appellant
appeals
against sentence only, with leave of the
court
a quo
.
[2]
Two issues arise in this appeal. The first issue is whether the
learned judge misdirected herself when she sentenced the appellant
to
18 years imprisonment and believed that the provisions of section 51
of the Criminal Law Amendment Act 105 of 1997(the Act)
were
applicable. The second issue is whether the learned judge erred in
imposing eight years imprisonment in respect of count 2
whilst the
prescribed minimum sentence was 5 years without addressing any
aggravating factors that persuaded her to impose a more
severe
sentence than the one prescribed.
[3]
Mr Truter, on behalf of the State, conceded the appeal in respect of
count 2. He submitted that the sentence was harsh
in view of
the fact that nothing extra ordinary existed in respect of the
attempted murder. There were no aggravating factors
pointed out
by the learned judge
a quo
justifying the imposition of a more severe sentence than the one
prescribed. In respect of count 1 he submitted that at the
time
that the sentence was imposed the learned judge
a
quo
was entitled to impose life
imprisonment and had therefore not erred in applying the provisions
of section 51 of the Act but conceded
that due to the subsequent
amendment in legislation this court has to revisit the sentence.
He however argued that notwithstanding
the amendment the sentence of
18 years imprisonment was still appropriate for the offence committed
by the appellant.
[4]
Before its amendment in 2007 section 51(6) of the Act stated that the
provisions of the section were not applicable in respect
of a child
who was under the age of 16 years at the time of the commission of
the act which constituted the offence in question.
I pause here to
mention that the appellant was sixteen years and six months at the
time of commission of the offences. The amended
section 51 (6) of the
Act provides that the provisions of section 51 do not apply in
respect of an accused person who was under
the age of 18 years at the
time of commission of an offence. The provisions of the then
section 51(6) were declared to be
inconsistent with the constitution
and invalid, to the extent that they apply to persons who were under
18 years of age at the
time of the commission of the offence.
See
Centre for Child Law v
Minister of Justice
2009 (2) SACR 477
CC at 504 para 78. This order was made to apply retrospectively
in matters such as the appellant’s one, where the appellant’s
leave to appeal application was still pending before the court a
quo
.
Furthermore, the learned judge failed to give reasons as to why she
imposed 8 years imprisonment on count 2 instead of the
prescribed
minimum of 5 years. Mr Khan, on behalf of the appellant,
submitted that the sentence of 18 years imprisonment
on a 16 year old
child is shockingly harsh and disproportionate to the circumstances
of this court. In light of the amendment
in the legislation and
the decision of the Constitutional Court in
Centre
for Child Law
referred to
supra
,
and the misdirection on sentence in count 2, this court is entitled
to interfere with the sentence. See
S
v Rabie
1975 (4) SA 857
(A) at 851 E.
[5]
The evidence in mitigation reveals a childhood that is characterized
by neglect and ineffective parenting. The appellant’s
mother abandoned him as a baby and he was brought up by his paternal
grandmother. He has no significant relationship with
his
father. He began to mix with the wrong crowd at age 13 and in a
way this led to the commission of this offence.
One cannot
underestimate the seriousness of the offence committed by the
appellant and ignore the interests of society. However,
the appellant
was a child and should have been treated as such. He should not be
treated as a young adult as it often happens in
cases where children
are involved. Our courts have been urged to impose imprisonment as a
last resort when sentencing child offenders.
This should be so
as to prepare the child offender from the moment of entering into
detention facility for his or her return to
society. In my view the
learned judge did not attach much weight to the youthfulness of the
appellant. Furthermore the prospect
of rehabilitation is one of
the considerations which play a role in the imposition of sentence,
see
S v Sikhipha
2006
(2) SACR 439
(SCA) at 445 para 18 and
S
v Nkomo
2007(2) SACR 198 (SCA) at 205
para 21. As held in Child Law Centre supra at paragraph 35, child
offenders may be uniquely capable
of rehabilitation. In my view, the
youthfulness of the appellant and the fact that he was a first
offender demonstrate that there
are real prospects of rehabilitation.
In my view a lesser period of imprisonment than the one imposed
by the court
a quo
is
warranted.
[6]
Accordingly, I make the following order:
The
appeal against sentence is upheld. The sentence imposed by the
court a quo is set aside and substituted with the following
sentence.
“
(a)
On count 1 the accused is sentenced to 12 years’ imprisonment;
(b)
On count 2 the accused is sentenced to 5 years’ imprisonment.
The sentence on count 2 is to run concurrently with
the sentence on
count
1.
The sentences are ante dated to 20 April 2006.”
_______________
POYO
DLWATI J
_______________
VAHED
J
_______________
K
PILLAY J
APPEARANCES
For
appellant: Mr I R Khan
Instructed
by Pietermaritzburg Justice Centre (legal Aid)
033 394
2190
For
the State: Mr Truter
Instructed
by The Director of Public Prosecutions (PMB)
033 845
4400
Date
of Appeal: 26 January 2015
Date
of Judgment: 16 February 2015