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[2014] ZAGPPHC 356
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Zulu v S (A4/2013) [2014] ZAGPPHC 356 (19 May 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: A4/2013
DATE:
19 MAY 2014
In
the matter between:
THEMBA
BANGANI
ZULU
...................................................................................................
Appellant
vs
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
BASSON,
J:
[1]
The appellant was found guilty and
sentenced in the circuit court in Middleburg on the following counts:
(i) Count 1: Murder read
with the provisions of
section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
– imprisonment for
life. (ii) Count 2: The illegal possession of an unlicensed
firearm in contravention of the
Firearms Control Act 60 of 2000
-
three years’ imprisonment. (iii) Count 3: Unlawful
possession of ammunition - one year imprisonment. The sentences
imposed on counts 2 and 3 were ordered to be served concurrently with
the sentence imposed on count 1. This is a full bench
appeal
against sentence only.
[2]
The appellant was one of two accused
charged with conspiring to murder and murdering the deceased. The
appellant’s co-accused
passed away shortly before the
commencement of the trail.
[3]
The appellant was found guilty of shooting
and killing the deceased. After his arrest he was placed into
custody during which
he made a confession in which he admitted that
he committed murder under the circumstances as alleged by the State.
The confession
was admitted as evidence after a
trail-within-a-trail.
Ad
sentence
[4]
In considering an appropriate sanction the
Court
a quo
highlighted the fact that this was not only a case of premeditated
murder (thereby bringing it within the ambit of
Part I
of Schedule 2
of the
Criminal Law Amendment Act) but
a case where the appellant
assassinated the deceased in cold blood for personal gain. This,
according to the Court
a quo
,
is one of the most reprehensible forms of murder and is in itself a
reason to impose the highest sentence in terms of the
Criminal Law
Amendment Act.
[5
]
It is accepted that any discretion that the
Court may exercise in respect of sentence must be in the context of
what constitutes
substantial and compelling circumstances. In
this regard the Court
a quo
duly
considered the personal circumstances of the appellant, the fact that
he was a first offender, the fact that he was persuaded
by a more
educated man (his co-accused) to commit the murder and the fact that
he will be 64 by the time he is released. The
fact that the
appellant confessed to the crime was also considered by the Court
a
quo
. Against this background, the Court
a quo
then
weighed up the fact that society is beleaguered by crime and the fact
that Parliament has prescribed minimum sentences in
an attempt to
combat crime.
[6]
On behalf of the appellant it was submitted
that the Court
a quo
erred in its conclusion that there are no substantial and compelling
circumstances justifying the Court to deviate from the prescribed
minimum sentence of imprisonment for life.
[7]
I
am in agreement that life imprisonment, as the ultimate sanction,
should not be imposed lightly even in circumstances where the
legislature has prescribed it as a minimum sentence. I am, however,
mindful of what the Court in
S
v Malgas
[1]
held:
“
C.
Unless there are, and can be seen to be, truly convincing reasons for
a different
response, the crimes in
question are therefore required to elicit a severe,
standardised and consistent response from the
courts.
D. The specified
sentences are not to be departed from lightly and for flimsy
reasons. Speculative hypotheses favourable to the
offender, undue
sympathy, aversion to imprisoning first offenders, personal doubts
as to the efficacy of the policy underlying
the legislation and
marginal differences in personal circumstances or degrees of
participation between co-offenders are to be
excluded.
E.
The Legislature has, however, deliberately left it to the courts to
decide whether the circumstances of any particular case
call for a
departure from the prescribed sentence. While the emphasis has
shifted to the objective gravity of the type of crime
and the need
for effective sanctions against it, this does not mean that all other
considerations are to be ignored.”
[8]
I
am not persuaded that the sentence of life imprisonment in the
circumstances of this case is shockingly harsh and inappropriate
and
that this Court should interfere by setting aside the sentence and
substituting it with a lesser sanction. Although there are
mitigating
circumstances such as the fact that the appellant is a first
offender, relatively uneducated and the fact that he was
influenced
by a more educated man, the aggravating factors present in this case,
in my view, far outweigh these factors. Moreover,
the Court cannot
disregard the fact that the appellant committed a murder out of
greed: He shot and killed the deceased four times
in cold blood
whilst the deceased was seated inside his vehicle and lastly, the
appellant showed no remorse
[2]
after he had been convicted. Furthermore, the appellant did not
act on the spur of the moment: In fact, he and the (deceased)
co-accused had met on various occasions prior to the murder during
which time the co-accused pointed out the victim to him. He
therefore
had ample time to re-consider. Despite the aforegoing, it is trite,
however, that each case must be considered having
regard to its
particular facts. In this instance, I am not persuaded that life
imprisonment is an inappropriate sanction nor am
I persuaded that the
appellant is a candidate for rehabilitation especially given the fact
that he has shown no remorse despite
the fact that he had confessed
to such a heinous crime.
[9]
In the event the appeal against sentence is
dismissed.
__________________
AC
BASSON
JUDGE
OF THE HIGH COURT
I
agree
__________________
C
PRETORIUS
JUDGE
OF THE HIGH COURT
I
agree
__________________
N
B TUCHTEN
JUDGE
OF THE HIGH COURT
[1]
2001
(2) SA 1222.
[2]
See
in this regard
S
v Matyityi
2011
(1) SACR 40
(SCA) at paragraph [[12] where the Supreme Court of
Appeal held that “
[i]n
order for the remorse to be a valid consideration, the penitence
must be sincere and the accused must take the court fully
into his
or her confidence.”
Where
the accused does not take the Court into his confidence “
the
genuineness of the contrition alleged to exist cannot be
determined”.