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[2013] ZAKZPHC 21
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Ntombela v S (AR 114/2013) [2013] ZAKZPHC 21 (31 May 2013)
1
Not Reportable
IN THE
KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 114/2013
In the matter
between:
M NTOMBELA
.........................................................................................
Appellant
and
STATE
.....................................................................................................
Respondent
________________________________________________________________
JUDGMENT
________________________________________________________________
GORVEN J:
The appellant was
accused number two at the trial before Jappie J. He faced two
counts; one of robbery with aggravating circumstances
and one of
murder. Both were alleged to have taken place on 2 August 2010 at
Port Edward and the victim in both instances was
Clifford Langley
Zarge. In essence, the robbery resulted in his murder.
The appellant
pleaded guilty on both counts. He put up a written statement in
terms of s 112 of the Criminal Procedure Act 51
of 1977 (the Act).
He says that he and the erstwhile accused 1 were walking along the
road in which the deceased’s house
was located. They had
agreed to break into a house when the opportunity presented itself
and, when they noticed that the sliding
glass door of the deceased’s
house was open, they entered. The deceased, when he noticed them,
stood up and attempted to
assault them. They had armed themselves
with knives and demanded money but, when the deceased refused and
resisted, they both
stabbed him several times. The appellant grabbed
the laptop of the deceased and they both fled. The relevant
admissions concerning
common purpose, intention and causation of
death were made and the appellant and his co-accused were duly
convicted.
The two offences
attracted prescribed sentences in terms of the
Criminal Law
Amendment Act 105 of 1997
; the minimum for count 1 being 15 years
and that for count 2 being life imprisonment. The trial court held
that there were no
substantial and compelling circumstances on count
1 which would warrant a sentence less than the minimum in the range
prescribed,
but found that such circumstances did exist in respect
of count 2. Both were sentenced to 15 years’ imprisonment on
count
1 and 20 years’ imprisonment on count 2 and it was
ordered that 5 years of the sentence on count 1 was to be served
concurrently
with the sentence imposed on count 2. This made for an
effective term of imprisonment of 30 years for each of them. A
non-parole
period of 20 years’ imprisonment was set in terms
of s 276B(2) of the Act. The appeal against sentence comes before us
with leave of the court
a quo
.
It is
trite that an appeal court is only entitled to uphold an appeal
against a sentence in limited circumstances.
1
One of these is where the trial court has misdirected
itself. I am of the respectful view that there are at least two
misdirections
warranting interference on appeal.
It is noteworthy
that accused 1 was 22 years of age and had a previous conviction for
housebreaking for which he had served 2
years’ imprisonment.
He was released very shortly before the offence took place. The
appellant, on the other hand, was
barely 18 years old at the time of
the offence and was a first offender. The state accepted that he was
remorseful for his conduct.
The state also conceded that the
appellant was ‘in a different league’ to accused 1. The
court
a quo
quite appropriately, in my respectful view, drew
the inference that accused 1 had influenced the appellant in the
commission
of the offence. It also found that because of his age and
the fact that he had no previous convictions, there is potential for
the appellant to be rehabilitated. It was doubted that this was so
in respect of accused 1. Despite these strong distinguishing
features, each received the same sentence. A clue to why this might
have been so is found in the judgment where the learned judge
said,
‘I might be doing [accused 1] an injustice if I did
differentiate between you and [appellant] because it is so, on
the
facts presented before me, that it was [appellant] who in fact
inflicted the fatal injury on the deceased’. This is
a clear
misdirection since the evidence disclosed that they both stabbed the
deceased and no evidence was led as to who had inflicted
the fatal
wound. It is my view that the failure to give expression to these
distinctions by imposing different effective sentences
on the two
accused persons amounts to a material misdirection.
In
addition, as mentioned, a non-parole period in terms of s 276B(2) of
the Act was fixed. This was done without inviting any
submissions as
to the appropriateness or otherwise of doing so. It has recently
been held that this may amount to a breach of
the fair-trial rights
of an accused.
2
In addition, a non-parole period should be prescribed
in only exceptional circumstances and no such circumstances were
placed
before the court
a quo
.
Indeed, the prospect of rehabilitation would ordinarily militate
against such a non-parole period being imposed.
3
The above factors in my respectful view constitute
misdirections by the court
a quo
.
I should point out that, at the time of sentence, the judgment in
Mthimkhulu
had not
yet been handed down.
As a result of the
misdirections referred to above, I am of the view that the appeal
against sentence must succeed. We are therefore
at large to
determine an appropriate sentence if there are sufficient facts on
which to do so.
The issue, then, is
what the appropriate sentence should be. I am satisfied that, in
respect of count 1, there is no basis for
interfering with the
finding that no substantial and compelling circumstances exist which
warrant a sentence of less than the
minimum sentence in the range
prescribed. The sentence of 15 years’ imprisonment must
therefore stand. As regards count
2, the court
a quo
held
that such circumstances existed. I respectfully agree. However, I
find it necessary to reflect the fact that the appellant
was in all
probability influenced by accused number 1 and was also just over 18
years old, a first offender at the time, showed
remorse and is a
candidate for rehabilitation. In my view this would be appropriately
achieved by ordering the entire sentence
on count 1 to run
concurrently with that on count 2, giving an effective term of
imprisonment of 20 years rather than the effective
term of 30 years
imposed on accused 1.
In the result:
The appeal against
the sentences imposed on the appellant is upheld.
The sentences are
substituted by the following:
‘
On
count 1, accused 2 is sentenced to a term of imprisonment of 15
years.
On count 2, accused
2 is sentenced to a term of imprisonment of 20 years.
The whole of the
sentence on count 1 is ordered to run concurrently with that on count
2.’
_________________________
GORVEN J
_________________________
SEEGOBIN J
_________________________
CHILI AJ
Date of Hearing: 24
May 2013
Date of Judgment: 31
May 2013
For the Appellant: I
Khan instructed by the Pietermaritzburg Justice Centre
For the Respondent:
S Sankar instructed by the Director of Public Prosecutions.
1
S
v Rabie
1975 (4) SA 855
at 857D-F.
2
Mthimkhulu
v State
(547/12)
[2012] ZASCA 53
4 April 2013, paras 20-21.
3
Mthimkhulu
para 23.