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[2014] ZAFSHC 232
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Tabile v S (A52/2014) [2014] ZAFSHC 232 (6 November 2014)
FREE
STATE
HIGH COURT,
BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: A52/2014
In
the matter of:
TSHEPO
HAROLD TABILE
..........................................................................
Appellant
and
THE
STATE
....................................................................................................
Respondent
CORAM:
MOLEMELA, J
et
TSATSI, AJ
JUDGEMENT
BY:
MOLEMELA, J
HEARD
ON:
11 AUGUST 2014
DELIVERED
ON:
06 NOVEMBER 2014
[1]
On the 15
th
May 2013 the appellant was convicted on one count of murder read with
section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
and
sentenced to 15 years imprisonment by the Regional Court sitting in
Bothaville. The appellant is now appealing, with leave
of this court,
against his sentence.
[2]
The appellant’s charge related to an incident in which one
Ntholeng Morapeli (“deceased”) was stabbed to death
with
a knife. On the night of the incident the deceased’s father
had, upon discovering that the deceased was not at home,
decided to
go and look for him at a tavern. He was accompanied to the tavern by
the deceased’s girlfriend and two boys. Upon
arrival at the
tavern they realised that the deceased was involved in an altercation
with some people. The deceased’s father
intervened by standing
between the deceased and the rest of the group. He and the deceased’s
girlfriend then led the deceased
away from the tavern.
[3]
As they were walking home he noticed that they were being followed by
the four people who had been involved in an altercation
with the
deceased at the tavern. The group was aggressive and wanted to attack
the deceased. He heard the appellant asking one
of his friends to
give him a knife. The deceased’s father pleaded with the group
to leave the deceased alone. The appellant
stabbed the deceased with
a knife on his shoulder, on the head and on the chest. The deceased’s
father eventually managed
to escort the deceased home. Shortly after
their arrival at home he heard a noise outside. He went out to
investigate what was
going on and saw the appellant and his
companions standing in the street, threatening to “finish the
deceased off”
and to set his home alight. The deceased died
shortly thereafter.
[4]
The appeal is directed only against sentence and is premised on the
ground that the trial court erred in finding that there
were no
substantial and compelling circumstances that justified imposing a
lesser sentence than the mandatory sentence of 15 years’
imprisonment, as contemplated in
section 51(2)
of the
Criminal Law
Amendment Act 105 of 1997
.
[5]
In the course of determining whether there were substantial and
compelling circumstances that warranted deviation from the applicable
sentence, the trial court in its judgment stated that the appellant’s
personal circumstances could not be regarded as “exceptional
circumstances”. This finding evidently flies in the face of the
principle laid down in the case of
S
v Malgas
2001 (1) SACR 469
SCA at
paragraph [10], where the court stated as follows:
“
Equally
erroneous, so it seems to me, are dicta which suggest that for
circumstances to qualify as substantial and compelling they
must be
“exceptional” in the sense of seldom encountered or rare.
The frequency or infrequency of the existence of
a set of
circumstances is logically irrelevant to the question of whether or
not they are substantial and compelling.”
[6]
Counsel for the appellant submitted that the trial court erred when
it found that the appellant’s personal circumstances
did not
constitute substantial and compelling circumstances. It was
contended that the trial court’s reference to “exceptional
circumstances” served as proof of its misdirection. I agree
that a reference to “exceptional circumstances” in
relation to a determination of substantial and compelling
circumstances constitutes a misdirection. The question is whether it
is a misdirection that warrants the setting aside of the sentence.
[7]
Counsel for the appellant contended that the misdirection committed
by the trial court was material and thus warranted the setting
aside
of the trial court’s sentence and a fresh consideration thereof
by this court. I disagree with this contention and
am fortified in
this view by the court’s remarks in the case of
S v
Pillay
1977(4) SA 531(A) at 535 E-F, where the court stated
as follows:
“
Now
the word “misdirection” in the present context simply
means an error committed by the court in determining or applying
the
facts for assessing the appropriate sentence. As the essential
inquiry in an appeal against sentence, however, is not whether
the
sentence was right or wrong, but whether the court, in imposing it,
exercised its discretion properly and judicially, a mere
misdirection
is not by itself sufficient to entitle the Appeal Court to interfere
with the sentence; it must be of such a nature,
degree, or
seriousness that it shows, directly or inferentially, that the court
did not exercise its discretion at all or exercised
it improperly or
unreasonably. Such a misdirection is usually conveniently termed one
that vitiates the court’s decision
on sentence”.
I echo the same sentiments.
[8]
I am of the view that a proper determination as to whether the trial
court’s misdirection was material or not necessitates
a
consideration of the circumstances of the case as presented to the
trial court.
[9]
The appellant’s mitigating factors as presented to the trial
court were the following:- The appellant was 27 years old
at the time
of commission of the offence and had one child that was dependent on
him for support. He was gainfully employed.
He had no
previous convictions.
[10]
The aggravating factors are as follows: - The seriousness and
prevalence of the offence. Murder is a violent crime that entails
a
loss of life. Life, once taken, can never be replaced.
Unfortunately this capital offence has become rampant in our
society.
Statistics show that violent crimes are on the rise.
The many senseless killings that are frequently committed are a clear
indication
of just how cheap human life has become in this country
despite the protection afforded by the constitution. This undesirable
situation
cannot be allowed to persist. The courts thus have a role
to play to stem the tide of violent crimes by consistently imposing
heavy
sentences that will serve as a deterrent. The trial court
correctly regarded the seriousness and prevalence of this offence as
serious aggravating factors.
[11]
A further aggravating factor is the callous manner in which the
appellant and his companions conducted themselves on the night
of the
incident. They behaved like hyenas despite the repeated intervention
of the deceased’s father, who had the misfortune
of witnessing
the brutal killing of his son just when he thought he had managed to
save him from the grave consequences that usually
result from a brawl
at a tavern. As if this was not enough, the appellant and his
companions followed the injured deceased to his
home, wanting to
inflict more injuries and even threatening to burn down his home. The
deceased was not given any chance of survival.
[12]
Another aggravating factor is that the deceased was murdered at the
prime of his life and his four year old child was unnecessarily
robbed of the love and support of a father.
At
no stage did the appellant show any remorse for his actions.
This lack of remorse impacts negatively on the appellant’s
chances of rehabilitation.
[13]
The trial court correctly considered the interests of the society.
Courts must by their decisions and sentences, promote respect
for the
law. The feelings of members of society must be taken into
account and their entitlement for protection against violent
crimes
must be considered. The need for the maintenance of peace and
tranquillity in the community must also be taken into
account.
See
S v Banda
1991 (2) SACR 325
(BGD).
[14]
Having considered all the facts of the case, I am not inclined to
agree with the submission that the appellant’s personal
circumstances, cumulatively viewed, constituted substantial and
compelling circumstances that warranted a departure from the
applicable
minimum sentence of 15 years’ imprisonment. The
trial court’s conclusion that there were no substantial and
compelling
circumstances is clearly correct. The misdirection it
committed does not fall under the category of material misdirections
that
warrant the setting aside of the sentence.
[15]
I am satisfied that there is no basis for tampering with the minimum
sentence imposed by the trial court, as the appellant’s
personal circumstances, cumulatively viewed, did not constitute
substantial and compelling circumstances that warranted imposition
of
a lesser sentence. It follows that the appeal must fail.
[16]
In the result, the appeal against sentence is dismissed.
_________________
M.
B. MOLEMELA, J
I
concur.
______________
E.
K. TSATSI, AJ
On
behalf of the applicant: S. Kruger
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. K. G. Mashamaite
Instructed
by:
Die
Director: Public Prosecutions
BLOEMFONTEIN