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[2013] ZAKZPHC 45
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Magwaza v S (AR 643/05) [2013] ZAKZPHC 45 (12 September 2013)
IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
Case No AR 643/05
In the matter between:
NTOKOZO MAGWAZA
..........................................................
APPELLANT
versus
STATE
......................................................................................
RESPONDENT
JUDGMENT
Delivered on:
GORVEN J:
On 29 October 2002, the deceased, Bhekisisa Phillip
Buthelezi, was walking home. He was the school principal at Mpumazi
School.
He was carrying groceries for his wife and five children and
money in order to meet his household requirements. He was set upon
by two assailants who demanded his money and cellphone. A struggle
ensued between the deceased and one assailant. The other assailant,
who was in possession of a firearm, shot him in the chest. He died
on the scene from that wound. This resulted in the appellant,
who
was accused two at the trial, and another person, who was accused
one at the trial, being arraigned on a count of murder
and one of
robbery with aggravating circumstances. They were both convicted as
charged and the appellant was sentenced to a period
of life
imprisonment on count one and a term of 15 years imprisonment on
count two. An application for leave to appeal against
his conviction
was refused but leave to appeal was granted by the trial court on
sentence. It is that appeal which serves before
us.
In imposing the sentence on count one, Moleko J invoked
the provisions of s 51(1) read with part 1 of Schedule 2 to the
Criminal
Law Amendment Act 105 of 1997 (the Act). As regards count
two, he invoked the provisions of s 51(2) read with part 2 of
Schedule 2 to the Act. The first of these prescribes a sentence of
life imprisonment unless substantial and compelling circumstances
warrant a downward departure from that sentence. The second
prescribes a sentence of between 15 years and life imprisonment
unless substantial and compelling circumstances warrant a downward
departure. It is clear that the crimes with which he was charged,
and of which he was convicted, fall within the ambit of the sections
invoked by Moleko J. It is also clear from the record that
the first
mention that these sections might be invoked was during the
proceedings leading up to the sentencing of the appellant
after he
had been convicted.
It has been authoritatively held in
S
v Langa
1
that in these circumstances, the reliance on those
provisions by a trial court ‘amount to a material
misdirection, rendering
the trial on sentence substantively unfair,
and requiring the sentence on this count to be considered afresh’.
2
That is therefore the position in the present matter
relating to the sentences on both counts. They are vitiated by
misdirection
and this court is at large to determine appropriate
sentences
de novo
by
considering ‘the triad consisting of the crime, the offender
and the interests of society’.
3
The
sentences must be arrived at without reference to the provisions of
the Act.
The appellant was a first offender. He turned 21 on 5
April 2004. He had passed grade 12 and was studying sound
engineering at
Allenby College in Durban. He had obtained a learner
driver’s license. He had no children and was not employed.
The two crimes took place in the same sequence of
events. The robbery with aggravating circumstances turned into a
murder. Both
crimes were gratuitous, in the sense that there was no
particular motive to attack the deceased other than that of greed.
There
was also no indication that either of the accused was at risk
or in any way acted in self-defence. It resulted in the death of
a
productive member of society who was held in high esteem in his
community. He was the breadwinner for his family and leaves
behind a
wife and five children. They can no longer rely on his support. They
took his life in exchange for a Nokia cell phone
and some money. It
is of some importance that the trial court found that, as regards
the murder of the deceased, there was no
direct intention on the
part of the appellant and his co-accused. Whilst this finding might
not be fully supported by the evidence
or the other findings, it has
not been challenged and must stand for the purpose of the sentencing
of the appellant.
As regards the interests of society, the legislature
has promulgated the Act which was referred to above. Whilst these
provisions
cannot be invoked, they give an indication as to the
attitude of the elected members of this society to the crimes in
question.
They must be viewed in the most serious light. Every
citizen should feel free to walk the streets with groceries and
money in
their possession without fearing that they will be robbed
or murdered. Society therefore demands some form of retribution for
offences such as these. In addition, however, society has an
interest in the rehabilitation of offenders so that, on the
restoration
to society, they become productive members and depart
from lives of crime. Where there is a prospect of rehabilitation,
therefore,
the courts are required to pass sentences with a view to
providing an incentive to become rehabilitated. Unduly lengthy
sentences
may well be counter-productive in this regard.
Mr Barnard, who appeared for the
appellant, referred us to the case of
S v
Jibiliza
.
4
In that matter, the appellant, with two co-accused, had
been convicted of housebreaking with intent to rob and to murder, of
murder,
of robbery with aggravating circumstances and with attempted
murder. In respect of the murder charge the appellant was sentenced
to death. Prior to the appeal being heard, the Constitutional Court
had ruled that capital punishment is unconstitutional and
the
sentence of death imposed must therefore be set aside. The appellant
in that case had previous convictions but none in the
12 years prior
to committing the offences concerned. The murder was committed with
dolusdirectus
. It
took place on the farm of the deceased, by breaking into the
farmhouse and are costing the deceased and his wife. The appeal
Court held that the fatal assault was prolonged, determined and
merciless and was accompanied by the desire to kill. It was
categorised as falling within the category of the most serious
instances of murder. A sentence of 25 years’ imprisonment
was
imposed for the murder charge which, with the other sentences being
made to run concurrently to a certain extent, provided
for an
effective sentence on all counts of 30 years’ imprisonment.
In the light of the above mentioned case and taking
into account the relative youth of the appellant, the fact that he
is a first
offender and his productive life up to the date of the
commission of the crimes, it is my view that there are prospects for
his
rehabilitation. As mentioned, the crimes in question were
gratuitous and arose purely from greed. They are therefore amongst
the most serious of such crimes. They cannot, however, rank on the
same scale as that in Jibiliza. This means that the ultimate
sentence of life imprisonment is not appropriate in these
circumstances. An appropriate sentence on the count of murder would,
in my view, be 20 years’ imprisonment. That on the count of
robbery with aggravating circumstances would, in my view, be
10
years imprisonment. It would, in my view, be appropriate if the
appellant was sentenced to an effective term of imprisonment
of 25
years. Since the two crimes were committed during the same course of
conduct, it is appropriate that five years of the
sentence on the
count of robbery with aggravating circumstances be made to run
concurrently with the sentence on the count of
murder.
In the result the following order issues:
1. The appeal against the sentences imposed on the
appellant is upheld.
2. The sentences imposed on the appellant are set aside
and substituted by the following sentences:
(a) On count 1, the accused is sentenced to a period of
20 years’ imprisonment.
(b) On count 2, the accused is sentenced to a period of
10 years imprisonment.(c) Five years of the sentence on count 2 will
run
concurrently with the sentence imposed on count 1.
(d) The sentences will run from 7 April 2004.
_____________________________
GORVEN J
_____________________________
PATEL JP
_____________________________
PLOOS VAN AMSTEL J
DATE OF APPEAL: 6 September 2013
DATE OF JUDGMENT: 12 September 2013
FOR THE APPELLANT: L Barnard
FOR THE RESPONDENT: HM Zulu
1
2010
(2) SACR 289 (KZP).
2
Langa
Para 35.
3
S
v Zinn
1969 (2) SA 537
(A) at 540F-G.
4
1995
(2) SACR 677
(A).