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2014
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[2014] ZAGPPHC 185
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Mokonyane v S (A808/13) [2014] ZAGPPHC 185 (1 April 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG,
PRETORIA)
CASE
NO: A808/13
DATE:
01 APRIL 2014
In the matter
between:
SABATHA
MOKONYANE
..........................................
Appellant
And
THE
STATE
.............................................................
Respondent
J U
D G M E N T
DEWRANCE AJ
[1] This is an
appeal against the sentence handed down by the Regional Court of
Gauteng held at Benoni ("the Court a quo").
The appellant
was charged together with another with the murder of one Xolani
Bethuel Nkosi. The Court a quo imposed a sentence
of 15 years in
terms of the provisions of section 51(2)(a)(i) of Act 105 of 1997.
This is the minimum sentence applicable to a
person found guilty of a
charge of which the appellant has been found guilty of.
[2] Before I deal
with the merits of the appeal, there is a preliminary issue that
needs to be dealt with. The appellant seeks
condonation for the late
filing of its heads of argument. The reasons advanced on behalf of
the appellant, in its heads of argument,
are that the appellant is
not responsible for the late filing of the heads of argument for the
following reasons: the appellant
is in custody serving his sentence
and was not aware that the time within which to file his heads of
argument had expired; the
office of the Legal Aid, Pretoria ("Legal
Aid") received the notice of appeal on 20 December 2013; the
office of the
Legal Aid was partially closed during that period; the
Director of Public Prosecutions and the Legal Aid South Africa cannot
authorise
the late filing of heads of argument; the heads were filed
after a special arrangement between the office of the Director of
Public
Prosecutions and the Legal Aid South Africa; the office of
Legal Aid South Africa did not have a mandate to represent the
appellant
when it received the notice of appeal; the necessary
arrangements were made to get proper instructions from the appellant;
the
power of attorney was only received on 26 January 2014; and the
file could not be sent to outside practitioners due to time
constraints.
[3] I find that the
reasons for the late filing of the heads of argument are sufficient
and accordingly condonation is granted.
[4] The State was
represented by Advocate Moetaesi. He indicated that the State had
not filed its heads of argument as a result
of an administrative
bungle in the offices of the Director of Public Prosecutions. He was
not aware that the matter was allocated
to him and only realised the
morning of the appeal, i.e. 31 March 2013, that the matter had been
allocated to him. However, he
was ready to proceed with argument.
Appellant's legal practitioner did not object to the matter
proceeding in the absence of the
State's heads of argument. We,
accordingly, granted leave that the matter may proceed in the absence
of the heads of argument
being filed.
[5] In light of the
submissions by the appellant's counsel, I do not deem it necessary to
repeat the facts which led to the appeal.
[6] In this Court,
the appellant's counsel only advanced one reason why the appeal
should succeed. He submitted that the sole reason
why the Court a
quo imposed the minimum sentence was because the appellant is an
illegal immigrant from Lesotho. The grounds of
appeal advanced in
the appellant's heads of argument were abandoned.
[7] The appellant,
in his heads of argument, correctly concedes that a court of appeal
may not and will not interfere with a sentence
unless it is convinced
that the Court a quo exercised its discretion improperly or
unreasonably; or whether the sentence induces
a sense of shock or is
startlingly inappropriate (see State v Pieters
1987 (3) SA 717
(A)).
[8] It is not
correct that the sole reason the Court a quo considered in imposing
the minimum sentence is the fact that the appellant
is an illegal
immigrant. In imposing the minimum sentence, the Court a quo found
the choice of weapon used by the appellant to
murder the deceased
particularly aggravating. It is common cause that the appellant used
a homemade spear. The Court a quo further
found that there was no
reason for the use of the weapon as the altercation was already over
at that stage. The Court a quo further
found it particularly
aggravating that the deceased was already seriously injured by
accused number two when the appellant decided
to impale the deceased
with his spear.
[9] After being
confronted with the learned magistrate's reasoning by us, the
appellant's counsel indicated that he could take not
take his
argument any further.
[10] We have
considered the argument advanced by the appellant's counsel and find
that the Court a quo did not exercise its discretion
in an improper
or unreasonable manner nor does the sentence induce a sense of shock.
It is also not startlingly inappropriate.
There exist no compelling
reasons to deviate from the minimum sentence imposed by the Court a
quo.
[11] Accordingly,
the appeal is dismissed.
DEWRANCE, AJ
MATOJANE, J
JUDGES OF THE
NORTH & SOUTH GAUTENG HIGH COURTS, PRETORIA
Representation
for the appellant:
Counsel Adv
Motlapeng
Instructed
by: Legal Aid Pretoria
Representation
for respondent
Counsel Adv
Moetaesi
Instructed
by Director of Public Prosecutions, Pretoria