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[2013] ZAGPPHC 7
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Dludlu v S (A858/2013) [2013] ZAGPPHC 7 (17 January 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA AFRICA)
CASE
NO: A858/2013
DATE:17/01/2013
IN
THE MATTER BETWEEN:
NEHEMIA
JABIILANI
DLUDLU
...................................................
APPELLANT
AND
THESTATE
.....................................................................................
RESPONDENT
JUDGMENT
KOLLAPEN
J
[1]
The appellant stood trial in this court on a charge of robbery
-
with aggravating circumstances, murder and attempted murder and after
pleading guilty was duly- convicted of attempted theft, murder
and
attempted murder.
[2]
On 28 February 2005 the court a quo imposed the following sentence on
the appellant:
2.1
count one (attempted theft) - one year imprisonment:
2.2
count two (murder) - twenty five years imprisonment:
2.3
attempted murder - five years imprisonment.
[3]
The court ordered that the sentences imposed with regard to counts
one and three were to run concurrently with the sentence
imposed in
respect of count two rendering it an effective sentence of twenty
five years.
The
appellant applied for leave to appeal and was granted leave to appeal
to the Full Court by HARTZENBERG. J on 13 February 2008.
Leave to
appeal was applied for and only granted in respect of sentence.
[5]
In advancing his appeal the appellant submits that the state during
the trial in the court a quo did not give the appellant
notice that
it intended to rely on the provisions of the
Criminal Law Amendment
Act 105 of 1997
and that the charge- sheet in question did not make
any reference to Act 105 of 1997 nor was it brought to the attention
of the
appellant at any other stage during the trial that the
provisions of Act 105 of 1997 would be relied upon. To that extent
the appellant
contends that the court a quo misdirected itself in
purporting to rely on the provisions of Act 105 of 1997.
[6]
On account of (hat the appellant contends that the conn a quo
misdirected itself and that to that extent the sentencing proceedings
rendered his trial unfair and should on account of that be set aside.
[7]
Hie State conceded that the failure to forewarn the accused that the
provisions of section 51 of Act 105 of 1907 was applicable
was in
conflict with the right to a fair trial enshrined in the Constitution
and that accordingly it was of the view that the sentencing
by the
court a quo under the sentencing regime created by Act 105 of 1997
ought to be set aside.
[8]
In my view the concession by the State was correctly made
particularly if one has regard to the dicta in S v Ndlovu 2003[ 1
]
SACR 331 (SCA) where the court said as follows:
"And
I think it is implicit in these observations that where the State
intends to rely upon the sentencing regime created by
the Act a fair
trial will generally demand that its intention pertinently be brought
to the attention of the accused at the outset
of the trial, if not in
the charge-sheet then in some other form, so that the accused is
placed in a position to appreciate properly
in good time the charge
that he faces as well as its possible consequences. Whether, or in
what circumstances, it might suffice
if it is brought to the
attention of the accused only during the course of the trial is not
necessary to decide in the present
case. It is sufficient to say that
what will at least be required is that the accused be
given
sufficient notice of the slate's intention to enable him to conduct
his defence properly."
[9]
That being said and given that it is not in dispute that the
appellant was not forewarned at any stage that the State sought
to
rely on the provisions of Act 105 of 1997 it would appear that the
appellant's stance that the sentencing proceedings be set
aside is
unassailable and accordingly that the court should order the sentence
imposed by the court a quo be set aside.
[10]
That being the ease the court is then entitled to proceed with
sentencing de novo and in this regard given that the court is
not
required to act within the legislative framework of Act 105 of 1997
the court must determine what is an appropriate sentence.
[11]
In 5 v Zinn
1969 2 SA 537
(A) the court referred to what has become
known as the triad consisting of considerations of the seriousness of
the crime, the
interests of society and the position of the offender.
[12]
If one has regard to the triad as well as to the proven facts in this
matter then the following become relevant. The appellant
was
convicted of the most serious crime namely that of murder under the
following circumstances: it appears that the appellant
and the family
of the deceased were engaged in a dispute with regard to inheritance
from the estate of the appellant's late father.
On 14 December 2003
the appellant went to his uncle's home armed and with the intention
of retrieving a vehicle (a truck). The
appellant succeeded in
starting the truck and as he attempted to leave the deceased premises
with the truck the deceased succeeded
in reaching the truck with a
view to stopping the appellant at which point the appellant fired two
shots at the deceased killing
him. When one has regard to the nature
of the crime then certainly it is eminently arguable that the dispute
between the appellant
and the deceased was a civil dispute in nature
and could have been resolved using other measures including possible
mediation.
There was no justification for the appellant to take the
law into his own hands which set off a chain of events resulting in
the
death of the deceased. Courts faced with such conduct must send
out a clear and decisive message that the rule of law is applicable
in our society and that people cannot with impunity cake the law into
their own hands. In this case the consequence of the stance
of the
appellant was the unnecessary and untimely death of the deceased.
[13]
When one has regard to the personal circumstances of the accused then
it is so that he is a first offender and has lived a
life free of
crime and conflict for all of his 31 years, he has completed matric
and is unmarried. In this regard it would be correct
to characterise
this crime as an unusual crime and not a crime motivated by greed or
malice or hatred but rather a crime that has
its genesis in a
misconceived view that the appellant could through his own actions
have resolved the inheritance dispute with
the deceased's family.
[14]
The interests of society certainly require that courts deal with
serious crimes such as murder in a decisive fashion and there
is
little doubt that what is called, for is a long period of
imprisonment. However when one considers the totality of all of the
factors including both the mitigating factors as well as the
aggravating factors then it is certainly not a crime that should
result in a sentence that has the effect of physically and
psychologically crushing the appellant. In this regard the dicta in S
v Khumalo
1984 (3) SA 325
(AD) is of relevance where the court
cautioned against the imposition of long sentences that would have
the effect of physically
and psychologically crushing an offender.
[15]
In addition to the above and having regard to the appellant's clean
record the prospects of rehabilitation must be good and
therefore the
sentence imposed should also create the opportunity for
rehabilitation and not be of such duration that it defeats
the very
objective of rehabilitation.
[16]
In all the circumstances in my view a sentence of twenty years in
respect of count two (the murder charge) would be an appropriate
sentence. I therefore propose the following:
1.
that the appeal against sentence in respect of count two be upheld:
2.
that the sentence of the court a quo in respect of count two be set
3side and replaced with the following:
2.1
"that the appellant be sentenced to twenty years imprisonment"
3.
The sentences in respect of count one and count three are confirmed
but it is ordered that those sentences are to run concurrently
with
the sentence imposed in respect of count two.
4.
The sentences are antedated to 03 March 2005.
N
J KOLLAPEN
JUDGE
OF THE NORTH GAUTENG HIGH COURT
A858-20II
I
agree
JUDGE
OF THE NORTH GAUTENG HIGH COURT
I
agree
S
P MOTHLE
JUDGE
OF THE NORTH GAUTENG HIGH COURT
HEARD
ON: 24 OCTOBER 2012
FOR
THE APPELLANT: ADV F VAN AS
FOR
THE RESPONDENT: ADV N P MARRIOT
INSTRUCTED
BY: