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[2014] ZAFSHC 240
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Ganya v S (A215/2013) [2014] ZAFSHC 240 (6 November 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No: A215/2013
In the matter
between
ALFRED
SERAME GANYA
…..........................................................................................
Appellant
and
THE
STATE
…..................................................................................................................
Respondent
CORAM:
MOLEMELA,
J
et
TSATSI,
AJ
JUDGMENT
BY:
TSATSI,
AJ
HEARD
ON:
11
AUGUST 2014
DELIVERED
ON:
6
NOVEMBER 2014
[1] This is an
appeal against sentence only. The appellant stood trial in the
Bethlehem regional court and pleaded guilty on a charge
of attempted
murder. He was duly convicted and sentenced to ten years imprisonment
on 19 May 2010. He was declared unfit to possess
a firearm in terms
of section 103 of Act 60 of 2000.
[2] The appellant’s
leave to appeal against the sentence was granted by the Regional
Court on 7 September 2011.
[3] The issue to be
decided in this appeal was whether or not the 10 year sentence handed
down against the appellant was appropriate.
[4] The appellant’s
counsel urged us to uphold the appeal and to reduce the sentence to 7
or 8 years. The respondent’s
counsel urged us to dismiss the
appeal and not to interfere with the trial magistrate’s
decision. It was further submitted
on behalf of the respondent that
the sentence imposed by the trial magistrate was not inappropriate
and unreasonable.
[5] The appellant
was living with the deceased, one Mokofa Nhlapo, as his wife at the
time of the deceased’s death. The two
had a child together who
turned two at the time of sentencing of the appellant.
[6] It was alleged
that on 18 October 2008, an argument ensued between the appellant and
the deceased. The argument was caused by
the fact that the deceased’s
sister wanted to take the couple’s child to some place. The
deceased was against this
arrangement and refused to have her child
taken to the place suggested. During the argument the appellant
stabbed the deceased
with a knife on her back. The deceased was
admitted at Pekolong and later transferred to Dihlabeng Hospital. The
doctors found
that the deceased was paralysed due to a spinal cord
injury as a result of the injuries that she sustained. She passed on
at a
later stage due to complications from the appellant’s
stabbing. It appeared from the record that the deceased passed away
around 2008.
[7] The grounds of
appeal relied on were as follows:
7.1 A term of ten
years imprisonment was strikingly inappropriate in that it was out of
proportion to the totality of the accepted
facts in mitigation with
special reference to the following:
7.1.1 The appellant
pleaded guilty to the charge he was charged of, and therefore took
responsibility of his actions. Thereby he
demonstrated his remorse
for his actions and the consequences thereof.
7.1.2 The deceased
was the appellant’s wife and her subsequent death was already a
great loss to the appellant and a form
of punishment in itself.
7.2.3 It was common
cause that the assault of the deceased followed a quarrel between the
parties and was not premeditated. This
also brings an element of
provocation into the equation. None of these factors were taken into
account by the Magistrate.
7.2.4 At the age of
27 years the appellant had no previous convictions and was thus a
first offender.
7.2.5 The appellant
did not have a high education level and reached standard 5 at school.
7.2.6 The appellant
is the father of a child who at the time of sentencing was 2 years
old. The mother of the child was the victim
in this matter and had
passed away. The appellant was thus a single parent and the primary
care giver.
7.2.7
In the matter of
S
v Piater
2013
(2) SACR 254
(GNP) the court referred to matters where a convicted
person was a primary caregiver of minor children, and set out the
courts’
obligations in terms of sections 28(1) (b) and 28(2) of
the Constitution. It held that section 28(2) and 28(1) (b) of the
Constitution
imposed four responsibilities on a sentencing court when
a custodial sentence for a primary caregiver was in issue, namely:
(a) to establish
whether there would be an impact on a child;
(b) to consider
independently the child’s best interests, not as an appendage
to the primary caregiver’s personal circumstances;
(c) to attach
appropriate weight to the child’s best interests and
(d)
to ensure that the child would be taken care of if the primary
caregiver was sent to prison. It was argued that the trial magistrate
did not do the necessary enquiry to follow the guidelines as set out
in the case of
S
v M
[2007] ZACC 18
;
2008
(3) SA 232
CC.
7.2.8 The appellant
was employed at the time of the incident and that his income assisted
in the maintenance of the minor child.
7.2.9 The trial
Magistrate did not consider other more suitable options of
punishment.
[8] It was further
submitted on behalf of the appellant that the trial magistrate erred
in over-emphasising factors like the seriousness
of the offence; the
interests of society; the prevalence of the offence; the deterrent
effect of the sentencing; the injuries sustained
by the complainant.
[9]
Both counsel for the appellant and respondent relied on
S
v Banda
1991
(2) SA 353
(BGD), where the court held that in exercising its
discretion it should as much as possible strive to achieve a
judicious balance
between all relevant factors in order to ensure
that one element is not unduly accentuated at the expense of and to
the exclusion
of the others.
[10]
The appellant’s counsel relied on the case of
S
v M
(supra).
However
the respondent gave a contrary view in the same case, quoting
paragraph 13 where the learned Sachs J cited the case of
Jooste
v
Botha
2000
(2)BCLR SA 187
(T) where it was said that:
“
But
section 28(2) has a wider formulation. Its wide formulation is
ostensibly so all-embracing that the interests of the child would
override all other legitimate interests of parents, siblings and
third parties. It would prevent conscription or imprisonment or
transfer or dismissal by the employer of the parent where that is not
in the child's best interest. That can clearly not have been
intended. In my view this provision is intended as a general
guideline and not as a rule of law of horizontal application. That
is
left to the positive law and any amendments it may undergo.”
[11]
Based on
S v M
(supra)
above,
the appellant’s counsel submitted that the following factors
should be taken into account when a custodial sentence
for a primary
care giver was considered: to establish whether there will be an
impact on the child, to consider independently the
child’s best
interest and attach a proper weight thereto, and to ensure that the
child will be taken care of if the primary
caregiver was taken to
prison.
[12]
It
was counsel for the respondent’s submission that, it was never
placed on record that the appellant was a primary care giver.
This
was despite the fact that the appellant was legally represented at
the trial court.
[13]
Counsel for the respondent submitted in his heads of argument that
the court has a duty to maintain law and order. The court
operates in
society and its decisions have an impact on individuals in the
ordinary circumstances of daily life. The court must
by its decision
and imposition of sentence, promote the respect for the law and
order. It must reflect the seriousness of the offence
and provide
just punishment for the offender while taking into account the
personal circumstances of the offender
(S
v Banda
(supra)).
[14]
Further
submission made by the respondent’s counsel was that the
offence the appellant was convicted of was a violent crime.
Violence
against women in our society is prevalent and the court should not
treat such crimes lightly. In
S
v Lister
1993 (2)
SACR
228
(A)
Nienaber J said the following:
“
To
focus on the well-being of the accused at the expense of the other
aims of sentencing, such as the interests of the community,
is to
distort the process and to produce, in all likelihood, a warped
sentence.”
[15]
In
S v Sinden
1995
(2) SACR 704
(A) at 709 (b) the Court stated as follows:
“
A
sentence does more than deal with a particular offender in respect of
the offence of which he has been convicted. It constitutes
a message
to the society in which the offence occurred.”
[16]
Of particular interest is the case of
Director
of Public Prosecutions v
Mnqoma
2010
(1) SACR 427
(SCA) para [14] where the court said that:
“
A
failure by our courts to impose appropriate sentences, in particular
for violent crimes by men against women, will lead to society
losing
its confidence in the criminal justice system. This is so because
domestic violence has become pervasive and endemic.”
[17]
It is trite law that the sentence of the accused must be balanced
between the interests of Society, the offence and the personal
circumstances of the accused. Counsel for the appellant referred me
to this authority
(S
v Banda
(supra)).
[18]
In
S v
Makwanvane and Another
[1995] ZACC 3
;
1995
(2) SACR 1
(CC) para 117) Chaskalson P said the following about the
level of violent crimes that existed in this country in 1995 and
which
has not improved:
“
The
level of violent crime in our country has reached alarming
proportions. It poses a threat to the transition to democracy, and
the creation of development opportunities for all, which are primary
goals of the Constitution. The high level of violent crime
is a
matter of common knowledge and is amply borne out by the statistics
provided by the Commissioner of Police in his
amicus
brief.
The power of the State to impose sanctions on those who break the law
cannot be doubted. It is of fundamental importance
to the future of
our country that respect for the law should be restored, and that
dangerous criminals should be apprehended and
dealt with firmly.”
[19]
Similar concerns were expressed in
S
v Matvitvi
2011
(1) SACR 40
SCA, para [23]:
“
Despite
certain limited successes there has been no real let-up in the crime
pandemic that engulfs our country. The situation continues
to be
alarming. It follows that, to borrow from Malgas, it still is ‘no
longer business as usual’.”
[20]
The offence of which the appellant has been convicted was serious.
The general principle the court adopts in an appeal relating
to
sentence was stated by Nicholas J in
S
v Rabie
1975
(4) SA 855
(A) at 857D-F as follows:
“
1.
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".
2. The test under
(b) is whether the sentence is vitiated by irregularity or
misdirection or is disturbingly inappropriate.”
[21]
The court held in
S
v Malqas
2001 (1) SACR 469
SCA
that:
“
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its
exercise of
that discretion, an appellate Court is of course entitled to consider
the question of sentence afresh.”
[22]
In
S v Sondav
& Another
1995
(1) SA 497
(C) at 506H - 507A: Thring J said the following:
“
In
criminal cases which come before it on appeal this Court has a duty,
not only to the appellants concerned, but also to society
as a whole.
That duty is, broadly speaking, and subject to certain rules and
qualifications, to see to it that miscarriages of
justice which may
have occurred in the courts
a
quo
are
set right. Thus, towards an appellant or an accused whose case comes
before this Court on automatic review, this Court has a
duty,
inter
alia,
to
set aside a conviction or a sentence which this Court finds to be
vitiated by misdirection, or a sentence which this Court finds
to be
shockingly or strikingly or disturbingly too severe and, in
appropriate circumstances, to substitute a proper sentence. Towards
society, this Court's concomitant duty is to ensure, in all cases
with which it is properly seized on appeal, that proper and adequate
sentences are imposed, so that society can be appropriately protected
against criminal activities,
inter
alia,
by
the deterrent effects of those sentences. A sentence which is
shockingly or strikingly or disturbingly too light is as much a
miscarriage of justice as one which is shockingly or strikingly or
disturbingly too heavy.”
[23]
This Court has a duty to determine whether or not the sentence
imposed was disturbingly too light or shockingly inappropriate.
I
agree with counsel for the respondent that violence against women in
this country is pervasive. Although the best interest of
the child is
of paramount importance, this should not be seen to be used by
perpetrators who commit violent crimes against women,
as an escape
route. As correctly submitted by the respondent’s counsel, it
was not put on record that the appellant was the
child’s
primary caregiver. As the trial magistrate had no indication that
that was the case, he cannot be faulted for not
embarking on an
enquiry pertaining to the child’s best interests. Under such
circumstances, the trial court’s failure
to consider the
applicable guidelines in determining the child’s best interests
cannot amount to a misdirection. In any event,
although the best
interests of the child are an important consideration, they should
not be considered in isolation. Competing
rights also have to be
taken into account; thus a balancing exercise has to be taken on a
case by case basis. See
S
v M
(supra)
at
253 E. Other factors should also be taken into account, like the
nature of the offence, the interest of society, the message
that the
courts are sending out regarding these crimes.
[24]
The court in
S v
M
(
supra),
emphasized
the fact that the directions in this matter referred to sentencing of
primary care givers, not to the wider class of
breadwinners. The
court stated that a primary care giver is a person with whom the
child lives and who performs everyday tasks
like ensuring that the
child is fed and looked after. In addition the court further said
that, it is a person who ensures that
the child attends school
regularly. The court indicated that it was not called upon in that
judgment to deal with delineating the
duties of the sentencing court
where the breadwinner is not also the primary caregiver. Everything
will depend on the facts of
a particular case in which such issues
are raised. I am of the view that the appellant may be a breadwinner
but not necessarily
a primary care giver. In this regard the primary
caregiver can be said to be the appellant’s sister-in-law, in
whose custody
the child was at the time of the trial.
[25] The court must
be sensitive to the message it sends out to the entire public, and
“would-be” perpetrators of violent
crimes. I also echo
the words of the trial magistrate when sentencing the appellant and
the court said that:
“
The
prognosis for the complainant was that she would have been a
paraplegic for life. She was in the prime of her life. She was
seventeen years old. She was doomed after the behaviour by the
accused to a life of a wheelchair. She had no control of her bladder
or of her anal functions after a stab would.” The court also
noted that as a result of the appellant’s conduct, she
would
have had to spend the rest of her life in a wheelchair.”
[26] It is without
doubt that the appellant committed a heinous crime. There is also no
doubt that this was a vicious assault on
a defenceless and vulnerable
woman. A young woman who was at the tender age of 17 years and, who
had her whole life in front of
her. The complainant was attempting to
run away, she left the house to protect herself from the appellant.
The appellant followed
her and stabbed her on her back. Although
counsel for the appellant submitted that there was some provocation,
this was not evident
from the record. Absent any evidence supporting
such a submission, I am not inclined to agree with this submission.
[27] I now turn to
consider the sentence imposed by the trial magistrate. There was no
persuasive argument intimating that the magistrate
misdirected
himself in imposing the sentence. A perusal of his judgment on the
sentence shows that the trial magistrate took into
account all the
relevant factors before imposing the sentence. Apart from the
personal circumstances of the appellant and the interest
of society
and other trite considerations, the trial magistrate considered the
nature and circumstances in which the offence was
committed. The
trial magistrate also had regard to the purpose of punishment which
is deterrence, preventive, reformative and distribution.
[28] I am of the
view that the trial magistrate correctly imposed a sentence of ten
years. I am not convinced that the sentence
was shockingly
inappropriate. It is evident from the record that the trial
magistrate properly considered the triad of sentence.
The following
mitigating factors were considered by the trial magistrate: that the
appellant was 27 years old, he was a first time
offender with no
previous convictions, he had no high school education and only
reached standard five, he is a father of a minor
child and that the
victim in this case was the mother of the child. The trial magistrate
also accepted as a mitigating factor that
there was no premeditation,
that the incident occurred at the spur of the moment and that he
showed his remorse by pleading guilty.
In addition to the preceding
mitigating factors, it was submitted on behalf of the appellant that
he was remorseful. Also that
he worked as a security guard and earned
R300.00 a week. As a security guard the appellant was charged with an
obligation of taking
care of protecting the community against
criminals including his own family. Ironically, his own wife became
his victim. The trial
magistrate correctly considered the prevalence
of violent crime against women in its area of jurisdiction. Given the
nature of
the injuries sustained by the deceased and the long-term
impact thereof, the trial magistrate correctly found that the offence
committed by the appellant fell into “a category of the more
serious instances of attempted murder” and distinguished
it
from the category of those offences where serious injuries are
sustained but the prognosis for a recovery is good.
[29] In my view
there was no material misdirection by the trial court. It is my view
that the trial court exercised its discretion
judicially and
properly. I am of the view that there is no need to tamper with the
sentence.
[30] In the result
the following order is made:
30.1 The appeal
against sentence fails.
30.2 The sentence
imposed by the trial magistrate is confirmed.
E. K. TSATSI, AJ
I agree.
M. B. MOLEMELA, J
On behalf of
appellant: S. Kruger
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of
respondent: Adv. K. G. Mashamaite
Instructed by:
Director: Public
Prosecutions
BLOEMFONTEIN