About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2015
>>
[2015] ZAECBHC 3
|
|
Zozo v S (CA&R8/14) [2015] ZAECBHC 3 (13 February 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE
LOCAL DIVISION, BHISHO
Case no. CA&R 8/14
Date heard:
10.12.2014
Date handed down
13.02.2015
In the matter between:
BUYILE
ZOZO
Appellant
and
THE
STATE
Respondent
JUDGMENT
MALUSI AJ:
[1]
The appellant was arraigned before the regional magistrate in
Mdantsane on a charge of murder
read with
ss1
of the
Criminal Law
Amendment Act 105 of 1997
as amended (the Act). He was
convicted as charged and sentenced to 20 years’ imprisonment.
He now appeals against
both his conviction and sentence.
[2]
It is necessary to set out the evidence led in the court
a quo
before considering the Regional Magistrate’s reasons for the
conviction and sentence. Most of the evidence is largely
common
cause or was not disputed.
[3]
On Sunday the 11
th
November 2012 at about midday, the
deceased
Mfezeko Qwala
was walking with his friend
Thando
Kolisi
on a street in NU15, Mdantsane. As they passed the
appellant’s house, he came out and approached the deceased
Mfezeko Qwala
.
Kolisi
fell back slightly while
the appellant had a conversation with the deceased. Shortly
thereafter the latter reported to him
that the appellant had
confronted the deceased about a window pane in the appellant’s
house which the deceased had allegedly
broken some five months
earlier. Apparently, the deceased had failed to pay for the
replacement of the broken window pane.
[4]
When the deceased and
Kolisi
resumed their journey they were
joined by the deceased’s son,
Sanda
. The appellant
was walking ahead of them in the same direction. A knife fell
from the appellant’s pocket and
the deceased picked it up. The
deceased called out to the appellant and approached him handing over
the knife. The deceased
was at this stage walking slightly
ahead of his two friends who had taken a moment to pass water.
[5]
The appellant gave evidence that after handing him the knife, the
deceased continued walking closely
behind him. The deceased was
saying he would never replace the window pane and was insulting the
appellant. He testified
that he was not certain if the deceased
would attack him. He turned around and stabbed the deceased. The
knife perforated
the chest cavity and caused an incision on the heart
and liver fatally wounding the deceased.
[6]
The regional magistrate rejected the notion of self-defence and lack
of intention to kill on the
part of the appellant. I say notion
for the reason that it was disclosed as the appellant’s basis
of defence in the
explanation of plea by his attorney.
Throughout his evidence the appellant never testified to any facts
proximating
self-defence. The Regional Magistrate correctly
convicted the appellant of murder as the evidence did not disclose
any valid
defence.
[7]
The regional magistrate did not find any substantial and compelling
circumstances to depart from
the discretionary minimum sentence of 15
years imprisonment. In his view, deterrence of would be
offenders required that
the appellant be sentenced to a term of 20
years’ imprisonment. His reasoning was that this
particular offence was
prevalent in the Mdantsane area when people
are killed after petty disputes. He stated that a message
needed to be conveyed
to the community that this conduct was
unacceptable and that harsh sentences would be imposed by the Court.
[8]
It is trite that the approach on appeal to findings of fact by the
trial Court in the absence
of demonstrable and material misdirections
by it, is that its findings are presumed to be correct and will only
be disregarded
if the recorded evidence shows them to be clearly
wrong
[1]
. It was said in
Hadebe
that the question for determination is whether, in the light of all
the evidence adduced at the trial, the guilt of the appellant
was
established beyond reasonable doubt.
[9]
The principles regarding sentence are clear. Punishment is
pre-eminently a matter for the discretion
of the trial Court.
The appeal Court should be careful not to erode such discretion:
sentence should only be altered
if the discretion has not been
judicially and properly exercised. The test is whether the
sentence is vitiated by irregularity
or misdirection or is
disturbingly inappropriate
[2]
.
[10]
Where a statutory discretionary minimum sentence is applicable, the
trial Court is not at liberty to impose
whatever sentence it
considers appropriate upon a clean slate. The starting point
has to be the discretionary minimum sentence
because that is the
sentence that should ordinarily be imposed, unless substantial and
compelling circumstances exist that justify
a deviation from
it
[3]
.
[11]
Mr
Mpokela
, who appeared on behalf of the appellant, submitted
rather shakily that the appellant lacked the intention to kill.
I do
not agree. The appellant stabbed the deceased with a
dangerous instrument in a sensitive area of his body. He
clearly
had the direct intention to kill the deceased. The
evidence did not disclose any basis for self-defence to be
applicable.
I am satisfied that the regional magistrate did not
commit a misdirection in convicting the appellant.
[12]
The regional magistrate found that no substantial and compelling
circumstances existed to justify a departure
from the prescribed
minimum sentence. On the contrary, he was of the view that the
discretionary minimum sentence was not sufficiently
severe to convey
the deterrence aspect of sentencing in these particular
circumstances.
[13]
I am of the view that the regional magistrate committed a material
misdirection when he sentenced the appellant.
Although it is
permissible to consider the effect of the sentence on others a
sentence should not be imposed mainly for the general
deterrence of
other would-be offenders and be grossly in excess of a fair sentence
with respect to the facts of a particular case
and the circumstances
of the accused
[4]
. The
regional magistrate did not have sufficient regard to the personal
circumstances of the appellant and the objective
factual
circumstances of the commission of the offence. He focused too
intently on deterring would be offenders almost as
the sole object of
sentencing the appellant. In doing so, I am of the view that he
misdirected himself in sacrificing the appellant
on the altar of
deterrence
[5]
. He lost
sight of the individualized nature of sentencing
[6]
.
[14]
This Court is at large to consider the sentence afresh in view of the
misdirection by the regional magistrate.
I consider the
following factors as cumulatively constituting substantial and
compelling circumstances:
[14.1] The
appellant had acted out of character as he reportedly was not known
to have had a quarrel with anyone let alone
as being violent.
[14.2] The
appellant had consumed alcohol which affected him negatively and
resulted in him being aggressive.
[14.3] The
appellant had been provoked by the deceased who had insulted him by
referring to the private parts of the appellant’s
mother.
[14.4] The
appellant acted on the spur of the moment and inflicted a single stab
wound.
[15] I
am of the view that the appropriate sentence is substantially less
than that imposed by the regional magistrate.
It is necessary
to substitute the sentence imposed with what I consider to be an
appropriate sentence.
[16] In
the circumstances and for the above reasons I propose the following
order:
(a)
The appeal against conviction is dismissed.
(b)
The appeal against the sentence is upheld.
(c)
The sentence is set aside and there is substituted for it a sentence
of 12 years’ imprisonment.
T. MALUSI
ACTING JUDGE OF THE
HIGH COURT
I agree, and it is so
ordered.
I.T STRETCH
JUDGE OF THE HIGH
COURT
On
behalf of the appellant
Mr
N Mpokela
Ntutu
Mpokela Attorneys
KING
WILLIAMS TOWN
On
behalf of the respondent
Mr
F Kruger
Instructed
by
The
Director of Public Prosecutions
BHISHO
Matter heard on 10
December 2014.
Judgment handed down on
13 February 2015.
[1]
S
v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645e-f
[2]
S
v Sadler
2000 (1) SACR 331
(SCA) para [6]
[3]
S
v Malgas
2001 (2) SACR 1222
(SCA) para [8]
[4]
S
v Mhlakaza
1997 (1) SACR 515
(SCA) at 519j-520b
[5]
S
v Sobandla
1992 (2) SACR 613
(A) at
[6]
S
v Mako
2005 (2) SACR 223
para [10] and [11] (and the cases cited
therein)