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[2015] ZAECMHC 60
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Ngubo v S (CA70/14) [2015] ZAECMHC 60 (5 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
MTHATHA
Case No.: CA70/14
DATE: 05 JUNE 2015
In the matter between:
THEMBILE
NGUBO
...............................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
Date Heard: 22 May 2015
Date Delivered: 5 June 2015
EKSTEEN J:
[1] The appellant was convicted in the
High Court of Mthatha of various offences, including one count of
murder. He was sentenced
to life imprisonment in respect of the
count of murder. He appeals, with leave of the court a quo, only
against the sentence imposed
in respect of the murder.
[2] The events leading to the
commission of the offence on 6 April 2006 in the rural locality of
Lubanzi, are set out in the judgment
of the court a quo. One Venter
(the deceased), ran a trading store at Zitulele. Early in the
morning of 6 April 2006 he and his
wife set off from their home with
their three grandchildren in a bakkie. Near their home they were
ambushed by the appellant and
three accomplices (the assailants).
The assailants were armed with firearms and opened fire randomly and
indiscriminately on the
bakkie in which the Venters drove. Numerous
shots were discharged and the deceased died as a result of gunshot
wounds sustained
in the incident.
[3] The Venters carried a firearm with
them too and Mrs Venter returned fire. This caused the assailants to
flee. The gunfire
had, however, attracted the attention of local
residents who emerged and saw the assailants flee. They apprehended
the appellant
and returned him to the scene where he was later
arrested.
[4] The appellant made a confession to
the South African Police Services which he disowned at the trial. A
trial-within-a-trial
followed and the court a quo ruled that the
confession was admissible in evidence. This finding is not attacked.
[5] It emerged from the confession, and
the trial Judge found, that the assailants had met the previous
evening, on 5 April and
resolved to rob the Venters the next morning.
They accordingly proceeded to wait for the Venters to emerge from
their home on
6 April. All four were armed. When the Venters
emerged they approached the bakkie and gunshots were discharged. The
appellant
acknowledges that they fled when Mrs Venter returned fire
and he states that he discarded his firearm as he ran. As he was not
able to run as fast as the other three members of the community
caught up with him and apprehended him. Although the appellant
denied in his confession that he had fired shots from his firearm the
Judge a quo found the contrary.
[6] The offence of murder on the facts
which the court a quo found to be proved attracts a discretionary
minimum sentence of life
imprisonment in terms of the provisions of
section 51 of the Criminal Law Amendment Act, 105 of 1997 (herein
referred to as “the
Act”). By virtue of the provisions
of the Act the court is required to impose a sentence of life
imprisonment unless it
is satisfied that substantial and compelling
circumstances exist which justify the imposition of a lesser
sentence. The Judge
a quo gave careful consideration to this issue
and concluded that no substantial and compelling circumstances
existed. He accordingly
imposed the sentence of life imprisonment.
[7] The matter of sentence is primarily
a matter in the discretion of the court burdened with the task of
imposing the sentence.
A court of appeal will only interfere with
the sentence imposed if the reasoning of the court is vitiated by
misdirection, or
where the sentence imposed can be said to be
startlingly inappropriate, or to induce a sense of shock, or where
there is a striking
disparity between the sentence imposed by the
sentencing court and that which the court of appeal considers to be
fair. (Compare
for example S v Kgosimore
1999 (2) SACR 238
(SCA).)
[8] The approach which a court is
required to adopt in instances where discretionary minimum sentences
in terms of the Act find
application was authoritatively set out in S
v Malgas
2001 (1) SACR 469
(SCA). Marais JA pointed out that the
courts were required to approach the imposition of sentence conscious
that the Legislature
has ordained life imprisonment as the sentence
that should ordinarily and in the absence of weighty justification be
imposed.
The prescribed sentences, he said, are not to be departed
from lightly and for flimsy reasons.
[9] Marais JA remarked that if the
court, on consideration of all 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 the
sentence, it is entitled to impose a lesser sentence (p. 482e-f).
[10] In appeal before us Mr Giqwa
argued that the court a quo had given inadequate recognition to the
personal circumstances of
the appellant and had over-emphasised the
seriousness of the offence. He accordingly contends that the court a
quo erred in concluding
that no substantial and compelling
circumstances existed.
Personal circumstances
[11] On behalf of the appellant it is
argued that the court a quo failed to have regard to, or to have
adequate regard to, certain
of the personal circumstances of the
accused. The argument is confined to three features of the personal
circumstances of the
accused. Firstly, that the appellant was a
first offender. Secondly, that he was just 27 years of age at the
time of the commission
of the offence and therefore relatively young
and capable of rehabilitation. Thirdly, that he had spent one year
and seven months
in custody awaiting trial.
[12] Cumulatively, so the argument
goes, these features ought to have been held to constitute
substantial and compelling circumstances
justifying the imposition of
a lesser sentence in that they render the prescribed sentence unjust
in the circumstances.
[13] The court a quo gave careful
consideration to each of these circumstances in the exercise of its
discretion.
First offender
[14] In summarising the personal
circumstances of the appellant the Judge a quo stated:
[15]
“As far as the personal
circumstances of the accused are considered, the fact that he has no
previous convictions and that
this is his first brush with the law is
undoubtedly a factor which the Court must take into account and which
operates in his favour
as a mitigating feature.”
[16] Later, in evaluating the various
features of the case for purposes of the assessment of an appropriate
sentence the court again
reiterated that it took into account that
the appellant had no previous convictions. The submission that the
trial court failed
to have regard to this feature is therefore
unfounded.
Age
[17] The appellant, as recorded
earlier, was approximately 27 years of age at the time of the
commission of the offence. This feature
too the Judge a quo weighed
carefully. He stated:
“It was contended by Mr Mgudlwa
on behalf of the accused, that I must take into account his relative
youthful age, which is
29. He will turn 30 years in September this
year. That means he was approximately 26 years old, nearly 27, when
these crimes
were committed. I take into account that the accused is
a relatively youthful person.”
[18] Later in the judgment in weighing
up the appropriate sentence to be imposed the Judge a quo
reiterated:
“I do take into account the fact
that he was approximately 27 years old at the time of the commission
of the offence.”
[19] Mr Giqwa refers, however, to S v
Nkomo
2007 (2) SACR 198
(SCA) where at 203e-g Lewis JA stated:
“[13] The factors that weigh in
the appellant's favour are that he was relatively young at the time
of the rapes, that he
was employed, and that there may have been a
chance of rehabilitation. No evidence was led to that effect,
however.
[14] Nonetheless these are substantial
and compelling circumstances which the sentencing Court did not take
into account. A sentence
of life imprisonment - the gravest of
sentences that can be passed, even for the crime of murder - is in
the circumstances unjust
and this Court is entitled to interfere and
to impose a different sentence, one that it considers appropriate.”
[20] It is immediately apparent from
this dictum that the court a quo in Nkomo failed to take these
features into consideration.
In the present case the Judge a quo
gave careful consideration to this feature.
[21] Most significantly, however, this
dictum, particularly the reference to the relative youth of a
perpetrator was convincingly
revisited in the Supreme Court of Appeal
in the matter of S v Matyityi
2011 (1) SACR 40
(SCA) where Ponnan J
stated at 47e-48b:
“During the course of the
judgment reference was made to the respondent's 'relative
youthfulness', without any attempt at
defining what exactly that
meant in respect of this particular individual. It is trite that a
teenager is prima facie to be regarded
as immature and that the
youthfulness of an offender will invariably be a mitigating factor,
unless it appears that the viciousness
of his or her deeds rules out
immaturity. Although the exact extent of the mitigation will depend
on all of the circumstances
of the case, in general a court will not
punish an immature young person as severely as it would an adult. It
is well established
that, the younger the offender, the clearer the
evidence needs to be about his or her background, education, level of
intelligence
and mental capacity, in order to enable a court to
determine the level of maturity and therefore moral blameworthiness.
The question,
in the final analysis, is whether the offender's
immaturity, lack of experience, indiscretion and susceptibility to
being influenced
by others reduce his blameworthiness. Thus, whilst
someone under the age of 18 years is to be regarded as naturally
immature, the
same does not hold true for an adult. In my view a
person of 20 years or more must show by acceptable evidence that he
was immature
to such an extent that his immaturity can operate as a
mitigating factor.”
[22] The approach set out in Matyityi
(supra) has been accepted and followed since the publication of the
judgment. The dictum
to which I have referred above serves to
greatly diminish the impact of the submission made on behalf of the
appellant.
Prospects of rehabilitation
[23] It is argued on behalf of the
appellant’s that the appellant’s relative youthfulness is
an indication of his prospects
of rehabilitation.
[24] Reference to rehabilitation is
ordinarily intended to refer to the prospect of the improvement of
the offender. Van der Merwe:
Sentencing [ (1991) Juta ] argues
that where an offender has been made to see that he has acted in
error and, were he to acknowledge
that his punishment has been fair,
he would have gone a long way towards true rehabilitation. In the
present case, however, the
appellant refuses to acknowledge his
wrongdoing and persists in denying his guilt. In this context the
Judge a quo stated:
“The question of rehabilitation,
this Court often finds is a very powerful argument operating in
favour of an accused person.
However, before any person can be
rehabilitated, there must be a genuine and truthful expression of
remorse for his deeds. I do
not believe any criminal can ever be
rehabilitated unless he accepts that what he did was wrong and
expresses remorse and sorrow
for his deeds. Unless he does so, his
chances on rehabilitation, I believe, are relatively slim.”
[25] The reasoning of the Judge a quo
is not attacked in the appeal before us. Rather, it is suggested
that by virtue of the appellant’s
relative youth there is a
longer period during which he may recognise the error of his ways and
acknowledge the fairness of his
punishment. The difficulty with the
argument is that no evidence was tendered to lay any foundation
therefore and, it seems to
me, it is pure speculation. I find no
misdirection in the reasoning of the Judge a quo.
Period of incarceration pending
trial
[26] This feature too, the trial Judge
pertinently recognised and considered in the exercise of his
discretion. I can find no basis
in the evidence for concluding that
the Judge a quo had given inadequate and improper consideration to
this feature.
[27] It is a well-established principle
that when considering the duration of a prison sentence to be imposed
the court will have
regard to the period of incarceration which the
accused person has already endured as a result of the offence which
he has committed.
Where, however, the enquiry is directed at whether
substantial and compelling circumstances exist justifying a deviation
from
a discretionary prescribed minimum sentence of life imprisonment
this feature can carry very little weight. If the accused were
tried
and convicted on the same day of his arrest the prescribed sentence
would have been life imprisonment. It is an indeterminate
period
which endures until the end of the lifetime of the accused person,
irrespective of when it commences. It is accordingly
difficult to
understand why the fact of his incarceration pending trial should
justify the imposition of a lesser sentence than
life imprisonment
which would have been justified had he been tried summarily at the
time of his arrest. Nevertheless, the court
a quo did have regard
to this feature and did give proper effect to it. There was
accordingly no misdirection on the part of
the court a quo.
[28] The court a quo having recognised
all these features found, correctly, that these factors were to be
weighed against the other
features of the case.
Over-emphasis of the seriousness of
the case
[29] It is argued on behalf of the
appellant that the Judge a quo over-emphasised the seriousness of the
offence at the expense
of the appellant’s personal
circumstances. The offence committed is indeed a very serious
offence. The facts relating to
the offence are set out earlier
herein.
[30] Human life is the most precious
value which our legal system seeks to protect, as it has done since
time immemorial, hence
the Biblical commandment “Thou shalt not
kill”. In S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC),
1995 (6) BCLR 665
(CC) para [144] Chaskalson P gave expression
thereto where he stated:
“The rights to life and dignity
are the most important of all human rights and the source of all
other personal rights.”
[31] The courts are accordingly fully
justified in accentuating the seriousness of acts of coldblooded
murder.
[32] The facts of the present case
attracts the recommended minimum sentence of life imprisonment on no
less than three grounds
set out in the Act. Firstly, it was a
pre-mediated, calculated act. Secondly, the murder was committed
during an attempt to commit
an act of robbery with aggravating
circumstances as defined in
section 1
of the
Criminal Procedure Act,
1977
. Thirdly, the offence was committed by a group of persons
acting in the execution or furtherance of a common purpose (compare
Schedule 2 Part 1 of the Act).
[33] In S v Mahomotsa
[2002] 3 All SA
534
(A) at 541G-J Mpati JA stated:
“One must of course guard against
the notion that because still more serious cases than the one under
consideration are imaginable,
it must follow inexorably that
something should be kept in reserve for such cases and therefore that
the sentence imposed in the
case at hand should be correspondingly
lighter than the severer sentences that such hypothetical cases would
merit. There is always
an upper limit in all sentencing
jurisdictions, be it death, life or some lengthy term of
imprisonment, and there will always be
cases which, although
differing in their respective degrees of seriousness, nonetheless all
call for the maximum penalty imposable.
The fact that the crimes
under consideration are not all equally horrendous may not matter if
the least horrendous of them is horrendous
enough to justify the
imposition of the maximum penalty.”
[34] I have no hesitation in concluding
that the facts of the present case are sufficiently horrendous to
justify the prescribed
sentence.
Conclusion
[35] In all the circumstances I am not
persuaded that there has been any misdirection on the part of the
court a quo. The murder
is clearly a very serious offence. When the
features relating to the seriousness of the offence and the interests
of society are
weighed up against the personal circumstances raised
in argument I am unable to find any significant disparity between the
sentence
which I would have been inclined to impose and the sentence
in fact imposed. In these circumstances I can find no ground to
justify
any interference in the sentence imposed by the trial Judge.
[36] In the result the appeal is
dismissed.
J W EKSTEEN
JUDGE OF THE HIGH COURT
VAN ZYL ADJP:
I agree. The appeal is dismissed.
D VAN ZYL
ACTING DEPUTY JUDGE PRESIDENT OF THE
HIGH COURT
ZILWA AJ:
I agree.
P H S ZILWA
ACTING JUDGE OF THE HIGH COURT
Appearances:
For Appellant: Mr Giqwa
Instructed by Mthatha Justice
Centre, Mthatha
For Respondent: Mr Joubert
Instructed by The Director of Public
Prosecution, Mthatha