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[2015] ZAKZPHC 4
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Shezi v S (AR 254/2014) [2015] ZAKZPHC 4 (17 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
AR
254/2014
In
the matter between:
SIPHIWE
BONGUMUSA
SHEZI
...........................................................................
APPELLANT
and
THE
STATE
............................................................................................................
RESPONDENT
ORDER
1.
The appeal is dismissed.
JUDGMENT
Delivered
on 17 February 2015
BEZUIDENHOUT,
AJ
1.
Appellant was convicted on a count of
housebreaking with intent to commit murder and murder and sentenced
to life imprisonment.
He appeals against his sentence with
leave of the court
a quo
.
2.
Appellant was 21 years of age at the time,
a first offender and a student. He had been in custody for
approximately 18 months.
There was friction at the time between
the families of the deceased and that of appellant who were taxi
owners. The learned
magistrate found that the substantial and
compelling circumstances must be real and not deductions by the
court. He considered
the manner in which the attack took place
and that appellant was not alone at the time. He considered the
youthfulness of
appellant and found that there were no substantial
and compelling circumstances.
3.
At about 10 o’clock in the evening
appellant and two others approached the home of the deceased and
informed them that they
were members of the South African Police
Services. When the occupants of the house saw that they were
not police officers
and refused to open the door, they broke down the
front door of the house entered it and asked why they had been
charged and shot
the deceased where he was in his bedroom. The
deceased sustained multiple gunshot wounds to the head and other
parts of his
body.
4.
In
S v Malgas
2001 (1) SACR 469
(SCA) it was held that the specified sentences
should not be departed from lightly and for flimsy reasons. It
further held
that “if a sentencing court on consideration of
the circumstances of the particular case is satisfied that they
render the
prescribed sentence unjust in that it would be
disproportionate to the crime, the criminal, and the needs of
society, so that an
injustice would be done by imposing that
sentence, it is entitled to impose a lesser sentence.
In
S v Matyityi
2011(1) SACR 40 (SCA) it was held that parliament had ordained
minimum sentences for certain specified offences and that these
were
to be imposed unless there were truly convincing reasons for the
departure thereof. Further that a person of 20 years
or more
has to show by acceptable evidence that he was immature to the extent
that the immaturity was a mitigating factor.
No
such evidence was placed before the court
a
quo
. On the contrary the conduct
of appellant on the day in question showed the opposite.
Appellant was upset because he
had been charged. As a result he
attacked and killed the deceased at his home together with his two
accomplices. The
manner in which the attack was conducted
proves that it was indeed premeditated. It is clear that
appellant together with
two others approached the home of the
deceased with the intention to kill him. It was a brutal attack
upon the deceased,
during the evening, at his home where he should
have been safe. Appellant together with the others took the law
into their
own hands.
5.
Mr Barnard appearing on behalf of appellant
submitted that the learned magistrate misdirected himself by
referring to the rehabilitation
of appellant but then imposing a life
sentence. Even if this is so it must still be established
whether the sentence imposed
by the court
a
quo
was a just sentence in the
circumstances. We were referred to the following cases where
less than life imprisonment were
imposed:
S
v Sangweni
2010 (1) SACR 419
(KZP) at
423F where it was held that the fact that appellant was relatively
young being 30 years of age, was gainfully employed
and a first
offender, weighed in his favour. However, in the case of
Matyityi
referred to above at 53f the Supreme Court of Appeal held that courts
should not resort to concepts such as “relative youthfulness”.
In
S v Au
and
Another
2014 (2) SACR 91
(GP) a
sentence of 20 years imprisonment was imposed on a conviction of
murder. It held at 97c “The third appellant
had neither
planned nor premeditated the murder of the deceased on count 2.
Accordingly the sentence of life imprisonment
in the circumstances
was in my view not in terms of the law and should be set aside.”
It is distinguishable as in the
present case the murder was
premeditated.
DPP, North Gauteng,
Pretoria v Gcwala
2014 (2) SACR 339
(SCA), two hired killers were each sentenced to 20 years
imprisonment. This case is also distinguishable as the state
conceded
that there were substantial and compelling circumstances.
6.
Reverting to the present case, appellant
was 21 years of age at the time of the incident and attacked the
deceased for no other
reason that the deceased had caused him to be
charged. Appellant and his cohorts conducted themselves that
evening with utter
disregard for the sanctity of human life.
The age of appellant at the time of the commission of the offence
together with
the fact that he was a first offender in my view do not
amount to substantial and compelling circumstances justifying a
lesser
sentence. In
S v Barnard
2004 (1 SACR) 191
(SCA) it was held at 194d “A court sitting an
appeal on sentence should always guard against eroding the trial
court’s
discretion in this regard and should interfere only
where the discretion was not exercised judicially and properly.”
In this
case the prescribed minimum sentence is not unjust and is not
disproportionate to the crime and the needs of society and the
personal
circumstances of appellant. It cannot be said that the
magistrate did not exercise his discretion judicially and properly
in
determining the sentence. There is no justification for a
deviation therefrom. The sentence is in my view appropriate
in
the circumstances.
I
would accordingly propose that the appeal be dismissed:
ORDER
:
1.
The appeal is dismissed.
______________________
BEZUIDENHOUT
AJ
______________________
K.
PILLAY J
I
agree
APPEARANCES
:
Date
of Hearing: 12 February 2015
Date
of Judgment: 17 February 2016
APPELLANT’S
COUNSEL: Mr L. BARNARD
Instructed
by: c/o PMB Justice Centre
Pietermaritzburg
Tel:
033 394 2190
RESPONDENT’S
COUNSEL: Mr LETSHOLO
Instructed by: c/o
Director of Public Prosecutions
301
Pietermaritz Street
Tel:
033 845 4400
Ref:
J. du Toit/D. Mtolo