Brief Summary

Criminal Law — Sentencing — Minimum sentence for murder — Appellant convicted of murder following a long-standing feud with the deceased — Trial court imposed life imprisonment as a minimum sentence under Schedule 2 of the Criminal Law Amendment Act 105 of 1997, finding no substantial and compelling circumstances — Appeal against sentence only, with the appellant contending that the trial court erred in not considering mitigating factors — Court found substantial and compelling circumstances existed, warranting a lesser sentence than life imprisonment.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an appeal to the KwaZulu-Natal High Court, Pietermaritzburg, against sentence only. The appellant, Mhlephethwe Mzothule Makhoba, appealed as a convicted person. The respondent was the State. The appeal was heard by a full bench (Van Zÿl J, with Ntshangase J and Ndlovu J concurring), with judgment delivered on 20 August 2013.

The procedural history was that the appellant had been convicted in the trial court on two counts arising from events connected to a long-running dispute between local families. Count 1 was attempted murder arising from an incident on 1 November 2001, for which the appellant had been sentenced to 10 years’ imprisonment; that conviction and sentence were not before the appeal court. Count 2 was murder of the same complainant/victim (the deceased) on 16 January 2004, for which the trial court imposed life imprisonment. The appellant obtained leave to appeal against sentence on count 2 only, and the appellate proceedings therefore centred on whether the sentence of life imprisonment was justified.

The general subject-matter of the dispute concerned the application of the minimum sentence regime under the Criminal Law Amendment Act 105 of 1997, in particular whether the murder fell within Part I of Schedule 2 (planned or premeditated murder attracting a prescribed minimum sentence of life imprisonment), and—whether under the minimum sentence framework or under ordinary sentencing principles—the life sentence was disproportionate and thus liable to be interfered with on appeal.

2. Material Facts

It was common cause that there had been an ongoing and hostile relationship between the appellant and the deceased, a shopkeeper trading as Mbizeni Store in the Kranskop district. The judgment treated the broader context as an established background: a prior break-in at the deceased’s shop, allegations that the appellant was involved, and ensuing disputes described as a “feud” involving their respective groups (the “Makhoba’s” and the “Hlongwa’s”). It was also accepted that the deceased had been a victim in a prior firearms incident involving the appellant.

On 1 November 2001, an incident occurred near the deceased’s store in which the appellant and another person allegedly produced handguns and fired at the deceased and his brothers. The deceased was shot in the buttock. The appellant was convicted of attempted murder in relation to this event and sentenced to 10 years’ imprisonment, but that matter served only as contextual background in the appeal.

The murder (count 2) occurred on 16 January 2004. It was not disputed that, on the evening in question, the appellant, the deceased, and state witnesses met at the home of Sihle Elliot Mhlongo. When leaving, the appellant separated from the deceased and another witness (Mlindeni Leonard Hlongwa) because the appellant stopped at the nearby home of Khonza Sipho Mhlongo to use a cellphone. The appellant declined an invitation to join the family for supper, telling Khonza that the deceased wished to speak with him, and then left. Shortly thereafter, gunshots were heard.

The only witness who testified as an eyewitness to the shooting itself was Mlindeni. His evidence, as relied upon by the court, was that while walking ahead of the deceased, he heard gunshots, turned, and saw sparks from a handgun held by the appellant. He then saw the appellant running back in the direction from which they had come, while the deceased staggered and fell. Mlindeni approached the deceased to assist and then went to seek help.

Evidence was accepted that, after the shooting, the appellant arrived at the Mhlongo homestead and stated that he had shot “at” the deceased, and that the shooting related to the dispute between the respective families. The appellant, however, testified that he had acted in self-defence, claiming the deceased reached for a firearm to shoot him, prompting the appellant to shoot first. The trial court rejected self-defence and convicted the appellant of murder.

For sentencing purposes, the trial court treated the murder as planned and premeditated, thereby applying the minimum sentence of life imprisonment. The appeal court recorded that the trial court’s conviction judgment did not expressly address planning or premeditation, and that the explicit reference to premeditation appeared in the sentencing remarks rather than in the verdict reasoning.

3. Legal Issues

A central legal issue was whether, on the record and the trial court’s findings, the murder conviction was to be treated as one of planned or premeditated murder falling under Part I of Schedule 2 of the Criminal Law Amendment Act 105 of 1997, or whether it fell under Part II (murder in circumstances other than those referred to in Part I). This issue involved the application of law to the content of the trial court’s findings, and in particular whether premeditation was determined as part of the conviction.

Closely linked to that was the appellate question raised by the respondent: whether, given that leave to appeal was granted only against sentence, the appellant could still contest (or the appellate court could reconsider) the basis for categorising the murder as premeditated, where such a categorisation might be seen as part of the “form of the crime” rather than merely a sentencing consideration. This was primarily a question of law concerning the proper characterisation of the trial court’s findings and the permissible scope of a sentence-only appeal.

Regardless of whether Part I or Part II applied, the court had to determine whether life imprisonment was justified. Under the minimum sentence framework, this required deciding whether substantial and compelling circumstances existed to depart from the prescribed sentence. Under ordinary appellate sentencing principles, it required deciding whether the sentence was disturbingly inappropriate (or so severe that it justified appellate interference), engaging a value judgment informed by established sentencing principles.

Finally, if interference were warranted, a further issue was the proper structuring of the resulting sentences in light of the existing sentence on count 1, including whether the sentences should run concurrently under section 280(2) of the Criminal Procedure Act 51 of 1977, and whether the substituted sentence should be antedated under section 282 due to the long delay before the appeal was finalised.

4. Court’s Reasoning

The court first addressed the respondent’s submission that the appellate court was bound to treat premeditation as part of the conviction and thus not open to reconsideration in a sentence-only appeal. The respondent relied on Alpheus Maluleka v The State (CA 20/2008) [2008] ZANWHC 23 (4 August 2008), which stated that premeditation, as relating to the form of the crime, must be decided at verdict stage and cannot be challenged where the appeal is only against sentence. The respondent also argued that because the appellant was convicted “as charged,” and because the indictment framed count 2 as “murder read with Schedule 2, Part 1(a) of section 51” of the 1997 Act, premeditation should be inferred as having been found at conviction stage.

On the record before it, the court was not persuaded that the trial court had made a definitive finding of planning or premeditation when delivering the verdict. It observed that the trial court’s conviction reasoning focused on rejecting private defence and concluding that the State proved the elements of murder, and that it did not address planning or premeditation at that stage. The explicit statement that the murder was “planned and premeditated” appeared only in the sentencing judgment. The court therefore considered that the trial court did not intend, at conviction stage, to decide premeditation as a distinct component of the form of murder.

However, the court also reasoned that the practical outcome of the appeal would likely be similar whichever approach was adopted. It proceeded to evaluate whether the life sentence was justified either on the footing that Part I applied (thus requiring substantial and compelling circumstances to justify departure), or on the alternative footing that Part II applied (thus rendering the imposed life sentence far above the minimum and requiring scrutiny for undue severity).

In assessing mitigation and proportionality, the court took account of the established background of a long-standing feud and the fact that the deceased was the victim in both the earlier attempted murder and the later murder, separated by just over two years. It noted that the appellant had testified that he himself had previously been injured and hospitalised in violence connected to the feud, and that the trial court did not deal with or reject that aspect. The court further considered that the events of the night of the murder did not clearly establish what precisely provoked the final confrontation; the parties had been at the same home and left around the same time, the appellant had briefly stopped to use a cellphone, and the only eyewitness did not describe any exchange immediately before the shots. This fed into the court’s assessment of the overall context for culpability and sentence, without reopening the conviction.

A further factor in the court’s proportionality assessment was the nature of intention. While the trial court convicted of murder, the appeal court noted that the accepted evidence was that the appellant later said he shot “at” the deceased, which the court regarded as consistent with an approach based on dolus eventualis (legal intention) rather than proven dolus directus (a direct desire to kill). The court treated this as relevant to sentence, particularly when considering whether life imprisonment was proportionate.

Against those considerations, the court also identified aggravating features: firearm-related violence was said to be rife in the area; the use of an unlicensed firearm was inherently serious; the killing reflected a reckless disregard for life; and the appellant showed an apparent lack of remorse. These factors were weighed in the sentencing balance and were treated as calling for a severe custodial sentence.

The court then set out the governing principles for minimum sentences and proportionality by reference to S v Vilakazi 2009 (1) SACR 552 (SCA) (which in turn referred to the Constitutional Court’s guidance in S v Dodo 2001 (3) SA 382 (CC)). It treated Vilakazi as requiring a sentencing court, even within a prescribed minimum sentence regime, to assess whether the prescribed sentence is proportionate to the offence, understood as including the nature and seriousness of the criminal act and all relevant circumstances of the offender bearing on culpability. If the prescribed sentence would be disproportionate, a lesser sentence is required and departure is justified.

The court also reaffirmed that the inquiry into substantial and compelling circumstances is informed by traditional sentencing considerations. It referred to Director of Public Prosecutions, KwaZulu-Natal v P 2006 (1) SACR 243 (SCA) for the continuing relevance of the sentencing triad (the crime, the offender, and the interests of society) and the purposes of punishment (deterrent, preventive, reformative, and retributive), together with the “quality of mercy.” It further referred to S v Swart 2004 (2) SACR 370 (SCA) for the proposition that, for serious crimes, retribution and deterrence will often assume greater weight than rehabilitation, though the proper weight of each element depends on the circumstances.

Applying those principles, the court characterised the murder as undoubtedly serious and requiring a lengthy imprisonment term. The decisive question, however, was whether life imprisonment was proportionate. It concluded that it was disproportionately severe in the particular circumstances, and that the trial court should have found substantial and compelling circumstances justifying a lesser sentence. The failure to do so was treated as a misdirection warranting appellate intervention.

The court also addressed the alternative framework: even if the murder were treated as falling under Part II (15-year minimum), the sentence of life imprisonment was still regarded as unduly severe. The court accepted the submission that there was a substantial disparity between the sentence imposed and what the appellate court would impose, bringing the matter within the principle governing appellate interference articulated in S v Kent 1981 (3) SA 23 (A).

Having decided to interfere, the court determined that a sentence of 20 years’ imprisonment on count 2 appropriately balanced the aggravating and mitigating considerations and served the purposes of punishment. It then considered the cumulative effect of the substituted sentence with the unappealed 10-year sentence on count 1. It reasoned that where life imprisonment is imposed together with a term sentence, concurrency is effectively inevitable, but where two term sentences are imposed they run consecutively unless directed otherwise. Relying on section 280(2) of the Criminal Procedure Act 51 of 1977, the court held that some concurrency was required to avoid an excessive effective sentence.

Given the close relationship between the offences (same broader feud, and the same victim as between the attempted murder and the murder), and also noting the appellant’s period of pre-sentence incarceration, the court directed that the sentence on count 1 run entirely concurrently with the sentence on count 2, producing an effective imprisonment term of 20 years. The court also considered the delay in finalising the appeal and directed that the substituted sentence be antedated to the date of original sentence, applying section 282 of the Criminal Procedure Act.

The judgment contained a discussion that, if concurrency were ordered, section 276B(2) of the Criminal Procedure Act would require determination of a non-parole period, and the court indicated a proposed non-parole period. The substituted order as recorded, however, was framed in terms of substitution, concurrency, and antedating.

5. Outcome and Relief

The appeal against sentence on count 2 was upheld. The sentence of life imprisonment imposed by the trial court for murder on count 2 was set aside and replaced with 20 years’ imprisonment, antedated to 27 March 2006 in terms of section 282 of the Criminal Procedure Act 51 of 1977.

In terms of section 280(2) of the Criminal Procedure Act 51 of 1977, the court ordered that the existing 10-year sentence on count 1 run entirely concurrently with the substituted 20-year sentence on count 2, resulting in an effective sentence of 20 years’ imprisonment for both counts.

No separate costs order was made, consistent with the criminal appeal context reflected in the judgment.

Cases Cited

Alpheus Maluleka v The State (CA 20/2008) [2008] ZANWHC 23 (4 August 2008). S v Kent 1981 (3) SA 23 (A). S v Vilakazi 2009 (1) SACR 552 (SCA). Director of Public Prosecutions, KwaZulu-Natal v P 2006 (1) SACR 243 (SCA). S v Swart 2004 (2) SACR 370 (SCA). S v Dodo 2001 (3) SA 382 (CC).

Legislation Cited

Criminal Law Amendment Act 105 of 1997, including section 51 and Part I and Part II of Schedule 2. Criminal Procedure Act 51 of 1977, including sections 280(2), 282, and 276B(2).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the sentence of life imprisonment for the murder conviction on count 2 was not justified on the facts and was disproportionately severe. On the court’s assessment, the matter presented mitigating features (including the longstanding feud context, uncertainty as to immediate provocation, and the way intention was to be approached for sentencing purposes) which, when weighed against the aggravating factors, rendered life imprisonment inappropriate. The court accordingly substituted a sentence of 20 years’ imprisonment, ordered concurrency with the existing 10-year sentence on count 1 under section 280(2) of the Criminal Procedure Act, and antedated the substituted sentence to the original sentencing date under section 282.

LEGAL PRINCIPLES

A sentencing court applying the minimum sentence provisions under the Criminal Law Amendment Act 105 of 1997 must assess, on all the circumstances, whether the prescribed sentence is proportionate to the offence, understood to include the nature and seriousness of the act and the offender’s personal circumstances that bear on culpability. If the prescribed sentence would be disproportionate, a departure to a lesser sentence is justified on the basis of substantial and compelling circumstances, and the court is bound to impose the lesser sentence.

Traditional sentencing principles remain relevant when determining whether substantial and compelling circumstances exist. The court must consider the triad of the crime, the offender, and the interests of society, together with the purposes of punishment (deterrence, prevention, reformation, and retribution) and the “quality of mercy,” while recognising that serious crimes commonly require heightened emphasis on deterrence and retribution.

An appellate court may interfere with sentence where the trial court has misdirected itself in a material respect, or where the sentence is so severe that it creates a marked disparity between the sentence imposed and the sentence the appellate court would have imposed, rendering it disturbingly inappropriate. When substituting a sentence, the appellate court must consider the cumulative effect of multiple sentences and may order concurrency under section 280(2) of the Criminal Procedure Act 51 of 1977 to prevent an unjustly excessive effective term, and may antedate a substituted sentence under section 282 where appropriate.

Makhoba v S (AR 397/12) [2013] ZAKZPHC 43 (20 August 2013)