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[2013] ZAECMHC 1
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Mcoteli v S (89/2010) [2013] ZAECMHC 1 (17 January 2013)
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN CAPE
HIGH COURT, MTHATHA)
Case no: 89/2010
In the matter
between:
VAKELE MCOTELI
........................................................................
APPELLANT
AND
THE STATE
....................................................................................
RESPONDENT
JUDGMENT
PAKADE ADJP:
[1]
The Appellant was arraigned for trial before Mthembu AJ, on a charge
of murder. He was duly convicted and sentenced to undergo
life
imprisonment. The Appeal comes before us with the leave of the Court
a quo
.
[2] I have had the
privilege of reading the judgment drafted by Notununu AJ and while I
agree with his finding on the existence
of substantial and compelling
circumstances, I, however, do not agree that a (15) fifteen year term
of imprisonment would be an
appropriate sentence that should be
imposed in terms of
section 51(2)
of the
Criminal Law Amendment Act,
105 of 1997
. I, however, do agree with his criticism of the Presiding
Judge that his persistent tedious cross examination of the Appellant
gave an impression that he descended to the arena. I must, however,
add my own observation on this point to emphasize caution to
Judicial
Officers that they should guard against over stepping the mark in
asking questions to either a witness or an accused person
on trial .
It is indeed a fundamental principle of our law that an accused
person is entitled to a fair trial .This necessarily
presupposes that
the Judicial Officer who tries his case is fair and unbiased and that
he conducts the trial from the start to
completion in accordance with
those rules and principles or the procedure which the law ordains ( S
v Alexander and Others (1)
1965(2) SA 796 (A); S v Mushimba en Andere
1977(2) SA 829 (A). In S v Rail
1982 (1) SA 828
(A) Troilip AJA said
at 833B :
"Of
course, if the offending questioning of witnesses or the accused by
the Judge sustains the inference that in fact he was
not open-minded,
impartial, or fair during the trial, this court will interfere and
grant appropriate relief’.
I
would think that this is a misdirection which calls for interference
with the sentence of life imprisonment imposed by the Court
a
quo
. Having said this, however, I
proffer the following reasons for disagreeing with the sentence
proposed by Notununu AJ:
[3]
The starting point as an accepted approach in adjudicating an appeal
against sentence is that interference with sentence is
justified only
on limited circumscribed grounds. These are , where the trial court’
s reasoning is vitiated by misdirection
or where the sentence is
disturbingly or startlingly inappropriate or induces a sense of shock
or where the sentence is so disparate
to that which a court of appeal
sitting as a court of first instance , would have imposed ,
Accordingly, the true inquiry relates
to the determination of whether
the Court
a quo
properly exercised its discretion in imposing the prescribed sentence
on the Appellant or not. If it did, then this court’s
interference with the sentence is hamstrung, but if not, the
interference is justified.
[4]
In this appeal, the Appellant relies on the misdirection of the Court
a quo
in
failing to find that there axe substantial and compelling
circumstances which justify the imposition of a sentence less than
the prescribed one and also on certain pronouncements made by the
trial court when passing sentence. I have already said that there
are
substantial and compelling circumstances which justify the reduction
of the sentence of life imprisonment but I will return
to this point
at an appropriate time in the judgment.
[5]
Misdirection as a ground of appeal is aptly elucidated by Trollip JA
in S
v Pillay
1
as follows:
“
Now the
word ' misdirection ’ in the present context simply means an
error committed by the Court in determining or applying
the facts for
assessing the appropriate sentence. As the essential inquiry in an
appeal against sentence
,
however
,
is
not whether the sentence was right or wrong , but whether the Court
imposing it exercised its discretion
properly
and judicially , a mere misdirection is not by itself sufficient to
entitle the Appeal Court to interfere with the sentence;
it must be
of such a nature that
,
the degree ,or seriousness
that it shows , directly or inferentially ,that the Court did not
exercise its discretion at all or exercised
it improperly or
unreasonably. Such a misdirection is usually and conveniently termed
one which vitiates the Court's decision on
sentence
.
That is obviously the kind of
misdirection predicated in the last quoted dictum above: one that
"the dictates of justice"
clearly entitle the Appeal court
to
l<
consider
the sentence afresh
"
(cf Net's and Hockey's cases,
supra)
"
[6] As already
alluded to in paragraph [4] above, there are only two ways of
exercising a discretion. It is either that the discretion
was
properly and reasonably exercised or it was not. If it was, a court
of appeal has no power to interfere; but if it was not,
it is free to
do so.
[7]
The type of misdirection relied upon by the Appellant is that the
court
a quo
improperly exercised its discretion by failing to consider or by
simply glossing over the mitigating factors which would have enabled
him , on a proper assessment thereof, to find that there are
substantial and compelling circumstances to justify a lesser sentence
than the prescribed one .
[8]
It was submitted by Mr Dukada SC, counsel for the Appellant on this
ground that, that the Appellant is a young first offender
who had
been provoked by the deceased had not been properly taken into
consideration by the judge in the Court
a
quo
and also that on its assessment
of the merits and demerits of the case, it over- emphasized the
seriousness of the offense
at
the expense of the mitigating circumstances . The further submission
made by counsel for the Appellant, which is also the ground
of
appeal, is that the adverse utterances/pronouncements the Learned
Judge
a quo
made in the course of his address on sentence clearly indicate that
he was angry and that it is that very anger which removed his
focus
and objectivity to the principles of fairness and mercy in sentencing
the Appellant. In developing his argument on the latter
point, Mr
Dukada submitted that the Court
a quo
was thus influenced by irrelevant
considerations in its determination of the sentence, being that 'the
Appellant was a preacher
in a church but was involved in adulterous
relationship with the deceased
5
,
that ‘he killed the deceased because he wanted to conceal the
fact that he had committed adultery' with the deceased , a
member of
his church’, that ‘there is a segment of men in society
who are bent on gratifying their sexual lust on defenseless
women and
thereafter kill them’.
[9] I have no doubt
that these utterances were uncalled for and in so doing the Learned
Judge overstepped the mark in his condemnation
of the conduct of the
Appellant. No doubt the Learned Judge was indeed angry when he
sentenced the Appellant and such anger detracted
his focus and
objectivity.
[10]
Holmes JA deprecates sentencing in anger. This view is fortified by
his remark in S v
Rabie
2
that "mercy eschews insensitive censoriousness in sentencing a
fellow mortal, and so avoids severity in anger". In my
view, the
anger in which the Judge
a quo
found himself in constitutes a misdirection of the magnitude which
vitiates the sentence he had imposed on the Appellant. Had his
mind
not have been clouded by anger which detracted his focus and
objectivity to the real mitigating factors that the Appellant
was a
young first offender who acted under provocation, was remorseful,
that the killing was not premeditated for a long time and
that it was
not a coldblooded murder, the Learned Judge would have found
that the mitigating factors outweigh the aggravating
circumstances,
thus calling for a departure from the standardized punishment. As the
dictum in S v
Malgas
3
is that the promulgation of the minimum sentences legislation is an
indication that sentencing will no longer be " business
as usual
" and that the court no longer has a clean slate to inscribe
whatever sentence it thought fit for the specified offense
, the
court has to approach the question of sentence
conscious
of the fact that the minimum
sentence
had
been
ordained
as the sentence which ordinarily should be imposed, unless
substantial and compelling circumstances were found to be present.
[11] The Appellant
testified in mitigation of sentence and called a witness to support
his version. He testified that he was bom
on the 27 December 1983. He
passed standard ten at school and is working as a teacher/ educator.
He is married and has one eight
year old child. His wife is not
employed but is a BA Social Science student in Walter Sisulu
University in Mthatha. He is responsible
for the payment of fees for
his wife in the University .He testified that he is remorseful
because he pleaded guilty to the charge
of murder, he co operated
with the police at the time of arrest and he made a confession. He
apologized to the deceased’s
family and had assisted them in
the funeral arrangements by purchasing some grocery items .He also
assisted towards the buying
of a coffin for the deceased's burial .He
apologized to the congregation of his church in which he is a member.
He also apologized
to the Education Department as well as to his
wife.
[12]
In his plea explanation, the Appellant stated that he had been in
love with the deceased since July 2009. Shortly thereafter
she
informed him that she was pregnant with his child. He requested her
to obtain an abortion because he was married. She refused.
On the 27
September 2009 they met in church at the Unity Hall in Mthatha. After
the church service he transported the church congregants
to various
places as usual and the deceased was among them. After he had
finished transporting the congregants, he remained in
his car with
the deceased. The deceased asked for
an
advance
of the sum of R 331.00
but the Appellant could only advance her with an amount of R200.00.
The deceased turned down that advance
and demanded the sum of R
331.00 failing which she would go and sleep with him at his home. The
Appellant then became enraged because
he was staying with his wife
and relatives at home.
[13] He then drove
his car with the deceased towards the direction of Mthatha Dam in
order to drown her in the dam but could not
succeed on account of a
group of people who were fishing in the dam. He then took another
direction away from the dam to look for
another spot. He found a
convenient spot to kill the deceased but there were a group of boys
playing football. He then took a direction
towards Highbury and at a
spot there he parked his motor vehicle in the open veld. The deceased
jumped out off the motor vehicle
and ran away. The Appellant chased
her and caught up with her. He grabbed her by the arm and dragged her
back to the motor vehicle.
In the course of dragging her, he took a
tie off his neck and strangled her with it until she became dizzy.
While she was dizzy
and helpless the Appellant saw another car
approaching the spot where he and the deceased were and he then ran
into his own car
and drove away ,leaving the deceased lying down
helpless at the spot, having his tie around her neck.
[14]
The Learned Judge did not accept that the Appellant had shown some
remorse. He was of the view that he should have gone a step
further
as to report to his wife, first thing on his arrival at home that he
strangled the deceased, as well as to his father,
a pastor and the
congregants .However, it appears under cross examination by the
Learned Judge and the State Counsel that he
did
disclose
the matter to his wife
after he
had
been
arrested.
[15]
Dealing with remorse as a mitigating factor, Ponnan JA made the
following dictum in S v Matyityi
4
:
”
There is,
moreover, a chasm between regret and remorse. Many accused persons
might well regret their conduct
,
but
that does not without more translate to genuine remorse .Remorse is a
gnawing pain of conscience for the plight of another.
Thus genuine
contrition can only come from an appreciation and acknowledgment of
the extent of one’s error. Whether the offender
is sincerely
remorseful\ and not simply feeling sorry for himself or herself at
having been caught, is a factual question . It
is to the surrounding
actions of the accused, rather than what he says in court
,
that
one should rather look
.
In
order for the remorse to be a valid consideration, the
penitence
must be sincere and the accused must take the court fully into his or
her confidence
.
Until and unless that happens
,
the genuineness of the
contrition alleged to exist cannot be determined. After all, before a
court can find that an accused person
is genuinely remorseful, it
needs to have a proper appreciation of inter alia: what motivated the
accused to commit the deed; what
has since provoked his or her change
of heart: and whether he or she does indeed have a true appreciation
of the consequences of
those actions
.
”
[16]
It is trite law that punishment must fit the criminal as well as the
crime committed , be fair to society and be blended with
a measure of
mercy according to circumstances (-
S
v Kumalo
5
;
S v Sparks and another
6
).
In
S
v Zinn
7
Rumpff JA held that the basic elements to be considered in sentencing
are the “triads consisting of the crime, the offender
and the
interests of society". These consist of the nature, magnitude
and the effect of the crime itself, the interests of
society and the
interests of justice and circumstances of the offender.
[17] There is
nothing that detracts from his plea explanation that the Appellant
was not truly remorseful when he said he was. There
is no basis
either for concluding that he made a confession and pleaded guilty
because he knew that there was overwhelming evidence
implicating him.
The appellant was only together with the deceased in an isolated spot
where he killed her and left her there.
I think it can be accepted to
his credit that he is the one who had led to the discovery of the
deceased who could not have been
found if he did not co- operate.
Quite obviously , the killing was actuated by anger after the
deceased had threatened to go and
sleep in appellant's house in which
he lives with his family . That understandably angered him. That
anger subsided after he had
killed the deceased and regret ushered
itself in his mind. That, in itself cannot constitute remorse in the
opinion of Ponnan JA
, with whom I agree . What constitutes remorse
in this case, in my respectful view, is the fact that the Appellant
co operated
in the finding of the deceased, his plea of guilty and
the confession he made.
[18] The seriousness
of the offense and the absolute resolve in which it was committed on
a defenseless woman, who had attempted
to flee from the Appellant,
cannot be overlooked as an aggravating circumstance which renders the
offense punishable with a direct
long term of imprisonment to deter,
not only the Appellant, but also others who may be of the same mind
as him, from committing
the same offence.
[19] The following
order is made:
1. The Appeal is
upheld.
2. The sentence of
Life Imprisonment is set aside and is substituted with a sentence of
(20) twenty years imprisonment, ante dated
to 18 March 2011.
LP
Pakade
ACTING DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
I agree
D.
Van Zyl
JUDGE OF THE HIGH
COURT
I agree
M.
NOTUNUNU
ACTING JUDGE OF
THE HIGH COURT
For
the Appellant : Adv Dukada SC Nguza
Instructed
by: Nguza and Associates
27
Victoria Street
Mthatha
For the
Respondent: Adv Mtengwane
Instructed
by: Director of Public Prosecutions
Broadcast House
94 Sissons Street
Mthatha
Delivered
on: 17 January 2013
1
1977(4)
Sa 531 (A)at535 D-G
2
1975
(4) SA 855
(A) at 862
3
2001
(1) SACR 469
(SCA);
2001 (2) SA 1222
4
201
1(1) SACR 40(SCA) at 47 a-d
5
1973(3)
SA 697 at 698
6
1972(3)
SA 396 (A)
7
1969(2)
SA 537 (A)