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2012
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[2012] ZAFSHC 104
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Zulu v S (A44/2012) [2012] ZAFSHC 104 (31 May 2012)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: A44/2012
In the appeal between:
ISHMAEL
MKHEPHENI ZULU
…..............................................
Appellant
and
THE STATE
….......................................................................
Respondent
CORAM:
VAN
DER MERWE, J
et
MOLOI, J
_____________________________________________________
JUDGMENT:
MOLOI, J
_____________________________________________________
HEARD ON:
28 MAY 2012
_____________________________________________________
DELIVERED ON:
31 MAY 2012
_____________________________________________________
[1] This is an appeal
against the sentence imposed by the Regional Court Magistrate in
Welkom on 9 November 2010.
[2] The appellant was
charged with one count of murder in that on or about 19 February 2009
at or near Thabong, Welkom he unlawfully
and intentionally killed one
Steven Oujaki Lekitlane by shooting him. He had pleaded not guilty
but was duly convicted.
[3] On passing sentence
the magistrate correctly found that the substantial and compelling
circumstances were present and that those
would permit him to deviate
from imposing the prescribed minimum sentence of fifteen (15) years
imprisonment under the provisions
of section 51(2) of the Criminal
Law (Amended) Act No 105 of 1997. He, however, imposed the sentence
of fifteen (15) years imprisonment
and suspended a period of seven
(7) years imprisonment conditionally for a period of five (5) years.
[4] The factors revealed
by the evidence were that the appellant was 73 years old when the
offence was committed; he was a first
offender; he had been in
custody for a period of nineteen (19) months on the date of his
sentencing, bail having been refused;
he had killed his grandson of
21 years of age; the grandson (deceased) had at a stage stolen a
motor vehicle that was in the custody
of the appellant; he
accommodated and maintained the deceased together with the deceased’s
mother who have since passed away;
the appellant was employed by the
municipality for 25 years; the appellant had fired four (4) shots at
the deceased; caused his
death and the appellant, in reply to a
question posed by the magistrate, stated he felt bad about the
incident.
[5] A few aspects of the
magistrate’s comments on sentencing deserve scrutiny. Firstly,
the magistrate commented that the
fact that the appellant was in
custody for 19 months preceding the sentencing was of no consequence
as he could have applied for
bail. The magistrate ignored the record
reflecting that bail was refused. The magistrate consequently ignored
the principle enunciated
in
S v STEPHEN AND
ANOTHER
1994 (2) SACR 163
(w) at E –
G where Schultz, J said:
“Imprisonment whilst awaiting
trial is the equivalent of a sentence of twice that length …”
Secondly, the magistrate
placed too much great emphasis on the fact that the appellant fired
four shots at the deceased. According
to him, this was indicative of
the determination of the appellant to end the deceased’s life.
The magistrate, however, took
no effort to determine which of the
four shots was fatal. It could just as well have been the very first
one rendering the other
three shots superfluous in the causation of
the deceased’s death.
[6] It is unfortunate
that the appellant did not testify and the evidence did not show why
this incident happened. What is, however,
clear is that the appellant
looked after the deceased and maintained him and that the deceased
was taunting the appellant by stealing
the vehicle in his possession
(apparently the employer’s vehicle). Something the court is not
privy to must have happened
to cause this unfortunate incident but
the court is not prepared to speculate what it was.
[7] In the circumstances
the court is of the view that the magistrate misdirected himself when
imposing the sentence he did and
that this court will be well within
its rights to interfere with the sentence imposed. Taking into
account the multiple fact of
awaiting trial incarceration, the
appellant’s personal circumstances, particularly his advanced
age, I am of the view that
sentence imposed by the magistrate should
be interfered with.
[8] In the premises, the
following order is made:
8.1 The conviction on a
charge of murder is confirmed.
8.2 The sentence of
fifteen (15) years imprisonment of which seven (7) years imprisonment
is suspended for five (5) years conditionally
is set aside.
8.3 The appellant is
sentenced to a period of ten (10) years imprisonment of which seven
(7) years imprisonment is suspended for
a period of five (5) years on
condition that the appellant is not convicted of a charge of murder
or assault with intent to do
grievous bodily harm committed during
the period of suspension.
8.4 The sentence in 8.3
above is ante-dated to 19 November 2010.
_________________________
K. J. MOLOI, J
I concur and it is so
ordered.
_________________________
C. H. G. VAN DER
MERWE, J
On behalf of the
appellant: Adv. G.T. Langenhoven
Instructed by:
Rosendorff Reitz Barry
BLOEMFONTEIN
On behalf of the
respondent: Adv. C. F. Steyn
Instructed by:
The Director: Public
Prosecutions
BLOEMFONTEIN
/EB