About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 198
|
|
Ncube v S (A582/2013) [2014] ZAGPPHC 198 (14 March 2014)
(IN THE NORTH
GAUTENG HIGH COURT, PRETORIA)
(REPUBLIC OF
SOUTH AFRICA)
CASE
NO: A582/2013
DATE:
14 MARCH 2014
In the matter
between:
MESHACK THAPELO
NCUBE
................................
APPELLANT
AND
THE
STATE
..............................................................
RESPONDENT
JUDGEMENT
TEFFO, J:
[1] The appellant
was convicted in the regional Court sitting at Ventersdorp on 27 July
2012 for murder after pleading guilty and
sentenced to 15 years
imprisonment.
[2] He appeals
against sentence with the leave of the court a quo.
[3] The facts in
this matter are the following: on 6 December 2011 the appellant and
the deceased who lived together as husband
and wife were visiting
friends in the township where they were drinking. The appellant then
left and went home leaving the deceased
behind. Later on he returned
to the township to fetch the deceased. Upon arrival at their
homestead a quarrel ensued and they started
fighting. The appellant
strangled the deceased on her neck and hit her with a fist on her
face causing her to fall backwards as
a result of which she'hit her
head on the floor. She bled excessively and this resulted in her
death.
[4] The appellant
bases his appeal on the fact that the sentence imposed by the court a
quo is shockingly inappropriate; it is out
of proportion to the
totality of the accepted facts in mitigation; the sentence disregards
the period which he spent in custody
awaiting trial; the court a quo
erred by not imposing a shorter term of imprisonment coupled with a
further suspended sentence,
in view of the following facts:- Absence
of planning; the age and personal circumstances of the appellant; the
rehabilitation element;
the mitigating factors inherent in the facts
proven. The court a quo overemphasised the following factors:- the
seriousness of
the offence; the interests of society; the prevalence
of the offence; the deterrent effect of the sentence; the retributive
element
of sentencing.
[5] It is trite
that, as, inter alia, held in S v Rabie
1975 (4) SA 855
(A) at 857 D-
F that in every appeal against sentence, whether imposed by a
magistrate or a judge, the court hearing the appeal-
“(a) should be
guided by the principle that punishment is ‘pre-eminently a
matter, for the discretion of the trial court,
and
(b) should be
careful not to erode such discretion: hence the further principle
that the sentence should only be altered if the
discretion has not
been judicially and properly exercised. ”
[6] Counsel for the
appellant submitted that: the fact that the appellant pleaded guilty
is a sign of remorse; that the crime commited
is a crime of passion;
the appellant had consumed alcohol at the time; he used his fist to
hit the deceased and did not use a weapon;
that he has now served a
period of 10 (ten) years imprisonment; that the crime was not
planned.
[7] Counsel for the
State submitted that:-.the sentence imposed cannot be seen to be
strikingly inappropriate in the light of the
following aggravating
circumstances:- the appellant has a previous conviction for the same
offence; he behaved in a violent manner
towards the deceased, a
female person who was tiny and of small built compared to the body
physique of the appellant. The nature
of the injuries sustained by
the deceased as noted in the post- mortem report, viz, several facial
fractures, lacerations and abrasions,
are of a serious nature.
[8] Counsel for the
State further submitted that the court a quo considered all the
factors mentioned supra and found them to be
substantial and
compelling circumstances justifying the imposition of a lesser
sentence of fifteen (15) years imprisonment instead
of twenty (20)
years imprisonment.
[9] It is common
cause between the parties that the appellant killed a woman with whom
he had lived as husband and wife. This was
a defenceless woman and
she was killed in her homestead where she felt she was safe. It is
immaterial whether a fist or a weapon
was used in the killing of the
deceased, the fact of the matter is that the deceased’s life
has been taken away. No one has
the right to kill someone and the
actions of the appellant were unwarranted. It is true that both the
appellant and the deceased
were under the influence of alcohol at the
time but this does not justify what the appellant did. It is not
clear from the record
as to what prompted the appellant to do what he
did except to say that he was drunk.
[10] It is clear
from the record that the appellant is not a first offender. He has a
string of previous convictions ranging from
1988 to 2002. Among these
previous convictions, two of them committed in 1990 and 2002 are for
assault and assault with the intent
to do grievous bodily harm.
Coupled with this, he has a previous conviction of murder which was
committed in 1996.
[11] Counsel for the
appellant submitted that although the appellant has a previous
conviction of murder, a period of 10 (ten) years
has lapsed and the
appellant should have been treated as a first offender by the court a
quo. He argued further that because of
the presence of substantial
and compelling circumstances, a sentence of less than 15 (fifteen)
years imprisonment should have been
imposed.
[12} I do not agree
with the submission made by the appellant’s counsel in this
regard. In terms of the provisions of section
51(2)(a) of the Act 105
of 1997(“ the Minimum Sentences Act”) an accused person
who has been convicted of murder and
who is a first offender should
be sentenced to a period of 15 (fifteen) years imprisonment where the
court finds no substantial
and compelling circumstances justifying it
to impose a lesser sentence. Where the accused person is a second
offender for murder
and the court does not find substantial and
compelling circumstances, the prescribed minimum sentence is 20
(twenty) years imprisonment.
The above subsection
does not provide that where such a second offender was convicted of
murder more than 10(ten) years ago, he
should be treated as a first
offender for the purpose of sentence. It simply refers to an accused
person who is a second offender
for murder. The appellant is a second
offender for purposes of section 51(2)(a) of the Minimum Sentences
Act. The prescribed minimum
sentence in respect of this subsection is
20(twenty) years imprisonment where the court found no substantial
and compelling circumstances.
The court a quo correctly found that
there are substantial and compelling circumstances justifying it to
impose a lesser sentence
than the prescribed sentence of 20(twenty)
years imprisonment.
[13] It is my
considered view that the court a quo applied its mind to the facts
placed before it and took all factors into account
when it passed
sentence which include mainly the interests of society, the nature
and the seriousness of the offence and the personal
circumstances of
the appellant. I find the reasons given for its finding that there
are substantial and compelling circumstances
justifying it to deviate
from the minimum sentence of 20 (twenty) years imprisonment,
reasonable.
[14] It is my view
that the sentence imposed is proportionate to the offence. There was
therefore no misdirection on the part of
the court a quo.
[15] I accordingly
cannot find any reason to interfere with the sentence that has been
imposed by the court a quo.
[16] I therefore
propose the following order:-
16.1 The appeal
against sentence is refused.
MJ TEFFO
JUDGE OF THE HIGH
COURT
I agree
C PRETORIUS JUDGE
OF THE HIGH COURT
FOR THE
APPELLANT M C NDALANE
INSTRUCTED
BY PRETORIA JUSTICE CENTRE
FOR THE STATE M D
MATJOKANA
INSTRUCTED BY THE
DIRECTOR OF PUBLIC PROSECUTIONS
DATE OF
HEARING 21 FEBRUARY 2014 DATE OF JUDGMENT MARCH 2014