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[2015] ZAKZPHC 13
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Mbutho v S (AR279/2014) [2015] ZAKZPHC 13 (27 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
AR
279/2014
In
the matter between:
COSMOS
SIZWE
MBUTHO
.................................................................................................
Appellant
and
THE
STATE
...........................................................................................................................
Respondent
Order:
The
sentence of life imprisonment is set aside and substituted with a
sentence of imprisonment of 25 years. The sentence is antedated
to 3
March 2014.
APPEAL
JUDGMENT
K
PILLAY J
(Chili J concurring)
[1]
On 28 February 2014 pursuant to a plea of guilty the appellant was
convicted of Murder read with the provisions of Section 51(1)
of Part
1 of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
.
[2]
The background facts giving rise to the charge were largely contained
in a statement in terms of
Section 112(2)
of Act 51 of 1977, which
was handed in after its contents were confirmed by the appellant and
may be summarised as follows.
[3]
The appellant and the deceased were lovers who lived together.
On the day of the incident, he saw her with another man
at the
latter’s house. Armed with a bush knife he proceeded
there with intent to kill her and confronted her with why
she was in
another man’s house. A quarrel ensued. Enraged he
chopped her with the bush knife repeatedly.
He immediately
reported the incident to the Induna and apologised for his actions.
He then vowed to kill himself.
[4]
According to the post-mortem report (which was admitted) the deceased
sustained 11 chop wounds to various parts of her body.
The skull was
fragmented. The cause of death was determined to be ‘
Sharp
Force Head Trauma.’
[5]
That the deceased suffered an agonisingly painful death is clear from
the post-mortem findings as well as from the photographs
handed in.
They paint a gruesome picture of the last moments of the deceased and
suggest that the appellant acted in utter
rage.
[6]
The appellant was duly convicted of murder as aforesaid and sentenced
to life imprisonment. With leave of the court
a
quo
, the appellant appeals against the
sentence imposed.
[7]
The propriety of the sentenced imposed is assailed on the following
basis:
(i)
That the trial court erred in finding that
the appellant’s mitigating factors collectively were not
sufficiently substantial
and compelling to justify a deviation.
(ii)
As a result of a dearth of facts in the
Section 112(2) statement it was not proved conclusively that the
appellant ‘
premeditated’
or planned to kill the deceased, as is required by Part 1 of Schedule
2 to justify the imposition of life imprisonment.
[8]
In support thereof, this court was referred to the following dicta in
S v Raath 2009(2) SACR 46 (C) para 16:
‘
There
is, however, a broad continuum between the two poles of a murder
committed in the heat of the moment and a murder which may
be have
been conceived and planned over months or even years before its
execution. In my view only an examination of all
the
circumstances surrounding any particular murder, including not least
the accused’s state of mind, will allow one to arrive
at a
conclusion as to whether a particular murder is “planned or
premeditated”. In such an evaluation the period
of time
between the accused forming the intent to commit the murder and
carrying out this intention is obviously of cardinal importance
but,
equally, does not at some point, provide a ready-made answer to the
question of whether the murder was “planned or premeditated’.’
[9]
This submission would probably have held sway if the Section 112(2)
statement was silent on this issue. The need for elaboration
would
then have been greater. However in his plea explanation, the
appellant clearly and unambiguously articulated as follows:
‘
On
the day of the incident I saw her with another man at his house and I
then armed myself with a bush knife with the intention
to kill her, a
(sic) I went there and asked her what she was doing there’.
[10]
It is clear from the above that incensed by seeing her with another
male, he armed himself with a bush knife with, in his own
words, the
intention to kill her. He then proceeded to the house where he
saw her with the other man and chopped her with
the bush knife.
This can hardly be considered as a crime committed on the spur of the
moment. In my view there is no
merit in this submission.
[11]
Turning to the contention that the trial court failed to find the
existence of substantial and compelling circumstances in
the
appellant’s background, a perusal of the judgment on sentence
indicates that the trial court, clearly and thoroughly
considered all
factors relevant to the imposition of sentence.
[12]
The question which arises is, did he fail to accord any weight to the
fact that the appellant, until the commission of this
crime was a
model citizen who had no brushes with the law. In addition the
accepted facts were that he immediately admitted his
wrongdoing to
the Induna in the area and pleaded guilty to the charge.
[13]
The powers of an appeal court are limited. This has been
emphasised in a number of cases. The State aptly referred
to
the decision in
State v Barnard 2004(1)
SACR 191 (SCA) para 9
where the
following was stated:
‘
A
Court sitting on 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. A misdirection that would justify interference
by an
appeal court should not be trivial but should be of such a nature,
degree or seriousness that it shows that the court did
not exercise
its discretion at all or exercised it improperly or unreasonably.’
[14]
In the absence of misdirection the question turns to whether the
sentence imposed is so strikingly or disturbingly inappropriate
or
unduly harsh as to justify interference.
[15]
This was, as stated before, a particularly heinous crime where the
appellant proceeded to confront the deceased about her presumed
infidelity, armed with a bush knife with intent to kill her.
That he did so, callously and brazenly in front of a witness,
is
common cause.
[16]
It is clear from the judgment that the Magistrate properly considered
the appellant’s personal circumstances, namely
that the
appellant was a first offender who pleaded guilty; that the appellant
had spent less than a year in custody awaiting finalisation
of the
case; had displayed remorse; that he has five minor children; that he
was in gainful employment as a gardener and painter,
a position he
held for 11 years. His employer confirmed in writing that the
appellant was a conscientious and diligent worker.
[17]
As against these factors, the Magistrate considered the fact that the
appellant’s actions were spurred by jealousy, that
the crime
committed was serious, that the interests of society have to be
protected and that it was wrong to focus only on the
well-being of
the appellant at the expense of the other objectives of punishment.
[18]
Clearly alive to the prescripts of Section 51(1) Act 105 of 1997 he
found that cumulatively considered, the appellant’s
personal
circumstances were not sufficiently substantial to compel the
imposition of less than the minimum sentence, namely, life
imprisonment.
[19]
Even with such finding it is still important to consider whether, the
imposition of the benchmark ordained by the legislature,
given the
mitigating factors, weighed against all the circumstances extant in a
given case, is unjust.
[20]
In
State v Malgas 2001(1) SACR 469 (SCA)
para 25 I
the view expressed for when
prescribed sentences may be departed from is the following:
‘
If
the 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.’
[23]
The appellant was a model citizen. The deceased was his
girlfriend with whom he lived and had a child. It is natural
that on seeing her with another man he would become upset at
perceiving a threat to his relationship. The appellant’s
behaviour on the fateful day is clearly not in keeping with the image
portrayed of him by the chairperson of the body corporate.
Until this incident he appears to have had led an exemplary life.
His remorse appears to be genuine.
[21]
In this case, without detracting from the seriousness and viciousness
of appellant’s conduct and that the killing was
committed
intentionally, I consider that the personal circumstances of the
appellant, ‘his clean record’, his proven
exemplary
employment record, his genuine manifestation of remorse, and the fact
that he pleaded guilty immediately are sufficiently
strong mitigating
factors to satisfy me that the imposition of a sentence of life
imprisonment would be unjust.
[24]
Whilst I could not fault the trial court’s assessment of the
seriousness of the accused’s actions, in order to
achieve a
balanced sentence, the above factors should also have been given some
consideration. Unfortunately this was not
the case and
therefore this court is entitled to interfere.
[22]
Given the heinous nature of the crime in question, my view is that a
sentence of 25 years imprisonment is appropriate. Domestic
violence
is endemic. Persons like the appellant should seek alternative
solutions to relationship problems, like counselling,
rather than
resorting to violence. Those who did choose violence instead,
deserved severe censure.
[26]
The appeal succeeds. The sentence of life imprisonment is set
aside and substituted with a sentence of imprisonment of
25 years.
The sentence is antedated to 3 March 2014.
______________________
K
PILLAY J
_____________________
CHILI
J
Appearances
For
the Appellant: Mr T P Pillay
c/o
Durban Justice Centre
DURBAN
4000
For
the Respondent: A Bissessur
The
Director of Public Prosecutions
DURBAN
4000
Date
of Hearing: 19 February 2015
Date
of Judgment: 27 February 2015