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[2012] ZAGPPHC 287
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Simelane v S (A 1053/11) [2012] ZAGPPHC 287 (13 November 2012)
NOT
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
No. A 1053/11
DATE:13/11/2012
In
the appeal of:-
CHARLES
BONGANI SIMELANE
…....................
Appellant
and
THE
STATE
...............................................................
Respondent
JUDGMENT
Van
der Byl AJ:
[1]
This is an appeal lodged with leave of the magistrate, against
sentence only. (I will for the sake of convenience refer to the
Appellant as “the Accused')
[2]
The Accused was charged in the regional court, sitting at Nigel, of
Murder in that upon or about 19 July 2010 and at or near
KwaThema he
did unlawfully and intentionally kill one Ntembentsha Montsasa, a
female person.
[3]
The Accused pleaded guilty and in a statement in terms of
section
112(2)
of the
Criminal Procedure Act, 1977
, stated that he and one
“Siphiwe” in the early hours of the morning on 19 July
2010 went to the house of the deceased.
He was under the influence of
liquor. He kicked the door open and the deceased asked them what they
wanted. He did not answer,
whereupon, she stormed at him and grabbed
him. He then took a knife Simphiwe had with him and stabbed her.
Although he couldn’t
remember how many times he stabbed her,
but it was more than once. He nevertheless know that he stabbed her
once in the chest and
once in the neck. Siphiwe then took a cellphone
and they left.
[4]
He was, thereupon, duly convicted on the charge of Murder.
[5]
The State proved six previous convictions of theft, housebreaking and
theft, arson and malicious injury to property against
the Accused.
It, furthermore, appears, that he was at the time also serving a
sentence of 18 years imprisonment imposed upon him
for robbery with
aggravating circumstances and unlawful possession of a firearm and
ammunition on 23 August 2011.
[6]
It would appear to have been common cause -
(a)
that he was at the time 28 years old,
(b)
that he is not married but is the father of two children aged at the
time three years and one year;
(c)
that he reached standard 9 at school;
(d)
that he was until his arrest gainfully employed;
(e)
that he was detained awaiting trial for approximately 14 months;
(f)
that he lost his father when he was only 9 years old.
[7]
The Accused was, the magistrate having considered his personal
circumstances, his previous convictions, the fact that he was
serving
a period of 18 years imprisonment, the seriousness of the offence and
that he pleaded guilty, sentenced to 20 years imprisonment
on 14
October 2011 and ordered, more than fairly, that 10 years of the 20
years imprisonment should run concurrently with the sentence
his was
already serving.
[8]
It has now been contended on behalf of the Accused that the
magistrate erred in, due regard being had to his personal
circumstances,
not having found any substantial and compelling
circumstances.
[9]
I am unpersuaded that the magistrate erred in not having found that
there were substantial and compelling circumstances justifying
a
lesser sentence.
[10]
As a matter of fact, the circumstances show a cold-blooded and
absolutely senseless killing of the deceased in the privacy
of her
own home in the course of an apparent robbery perpetrated with
aggravating circumstances which, had it been indicated in
the
chargesheet that the charge should be read with section 51(1) of the
Criminal Law Amendment Act, 1997 (instead of section 51
(2)) he could
in all probability have been sentenced to life imprisonment.
[11]
Much reliance has been placed on the fact that he pleaded guilty
which, so it was submitted, is indicative of remorse. I am
not
persuaded that his plea of guilty in itself and the indication in his
plea explanation that he regret what he had done, indeed
constitutes
remorse.
[12]
In S v Matyityi 2011(1) SACR 40 (SCA) at 47A, para [13] one finds the
following informative and particularly realistic exposition
of what
remorce entails:
“
Remorse
was said to be manifested in him pleading guilty and apologising,
through his counsel (who did so on his behalf from the
bar)
.................
It has been held, quite correctly, that a plea of guilty in the face
of an
open
and shut case against an accused person is a neutral factor. The
evidence linking the respondent to the crimes was overwhelming.
...
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 acknowledgement 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."
[13]
Apart from the aforegoing the Accused has a iong list of previous
convictions of
which
all show that he has very little respect for the rights, privacy and
lives of others.
[14]
In my view he is an absolute danger to society.
[15]
In the circumstances the following order is made: The Appellant’s
appeal against sentence is dismissed.
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
I
agree
E
M MAKGOBA
JUDGE
OF THE HIGH COURT
ON
BEHALF OF THE APPELLANT : ADV KGARARA
ON
BEHALF OF THE RESPONDENT: ADV J P VAN DER WESTHUIZEN
DATE
OF HEARING:13 NOVEMBER 2012
DATE
OF JUDGMENT: 13 NOVEMBER 2012