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2012
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[2012] ZAFSHC 108
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Matloko and Others v S (A109/11) [2012] ZAFSHC 108 (31 May 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A109/11
In the appeal between:-
DANIëL MATLOKO
….......................................................
First
Appellant
GERALD ATTER GATRI
…..........................................
Second
Appellant
AMOS MKHABA
…..........................................................
Third
Appellant
and
THE STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
HANCKE, AJP
et
VAN DER MERWE, J
et
MOLEMELA, J
_____________________________________________________
HEARD ON:
14 MAY 2012
_____________________________________________________
JUDGMENT BY:
VAN DER MERWE, J
_____________________________________________________
DELIVERED ON:
31 MAY 2012
_____________________________________________________
[1]
This appeal concerns the sentences imposed by the trial court and is
before us with its leave.
[2]
Each appellant was convicted of the following crimes:
Count
2: Housebreaking with the intent to murder and attempted murder.
Count
3: Murder.
Count
5: Murder.
Count
7: Housebreaking with the intent to assault and assault.
Count
8: Attempted murder.
Count
9: Housebreaking with the intent to steal and theft.
In
addition the first appellant was on count 4 convicted of sexual
assault and the third appellant was convicted on count 10 of
housebreaking with the intent to steal and theft.
[3]
Each appellant was sentenced as follows:
Count
2: Seven (7) years imprisonment.
Count
3: Twenty five (25) years imprisonment.
Count
5: Twenty five (25) years imprisonment.
Count
7: Five (5) years imprisonment.
Count
8: Seven (7) years imprisonment.
Count
9: Ten (10) years imprisonment.
On
count 4 the first appellant was sentenced to five (5) years
imprisonment. On count 10 the third appellant was sentenced to three
(3) years imprisonment. In respect of each of the appellants the
trial court ordered that all other sentences be served concurrently
with the sentence of twenty five (25) years imprisonment imposed in
respect of count 5. Each appellant was therefore sentenced
to an
effective term of twenty five (25) years imprisonment.
[4]
The respondent duly gave notice of its intention to apply at the
hearing of the appeal for the increase of each of the sentences
imposed in respect of counts 3 and 5 to life imprisonment.
Section
316B
of the
Criminal Procedure Act 51 of 1977
provides that the
Director of Public Prosecutions may with the necessary leave appeal
against a sentence imposed in the High Court.
This section was
introduced by an amendment during 1990, as was
section 310A
, which
provides for an appeal by the Director of Public Prosecutions against
a sentence imposed in a lower court. In
S v
KELLERMAN
1997 (1) SACR 1
(AD) at 5 it was held that
section
310A
did not affect the existing long-standing practice that the
court may after notice to that effect by the court or the state,
increase
a sentence appealed against by an accused person. It was
held that
section 310A
was intended to cater for the case where the
accused does not appeal against a sentence that is regarded as too
lenient. Clearly
the same must apply to
section 316B.
The sentences
imposed in respect of counts 3 and 5 must therefore firstly be
considered.
[5] The trial court found
that both murders were committed by the appellants acting in
execution or furtherance of a common purpose.
This finding was
rightly not contested before us. In the result a sentence of life
imprisonment was prescribed in terms of the
Criminal Law Amendment
Act 105 of 1997
for each count of murder.
[6] These prescribed
sentences can of course be departed from if that is justified by
substantial and compelling circumstances.
Such substantial and
compelling circumstances are present when in all the circumstances of
a particular case the imposition of
the prescribed sentence would be
disproportionate to the crime, the criminal and the needs of society
and therefore unjust. But
substantial and compelling circumstances
must be considered with real recognition thereof that the legislature
has ordained a particular
prescribed sentence that should ordinarily
and in the absence of weighty justification be imposed. Therefore, as
was said in
S v MALGAS
2001 (1) SACR 469
(SCA) at 477 e
– f:
“
Speculative
hypotheses favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts as
to the efficacy of
the policy implicit in the amending legislation, and like
considerations were equally obviously not intended
to qualify as
substantial and compelling circumstances. Nor were marginal
differences in the personal circumstances or degrees
of participation
of co-offenders which, but for the provisions, might have justified
differentiating between them.”
See also
S v
VILAKAZI
2009 (1) SACR 552
(SCA) at 560 – 562 and
S
v MATYITYI
2011 (1) SACR 40
(SCA).
[7] It is necessary
therefore to consider the circumstances of the crimes in question.
The three appellants at night kicked open
the door of the house of
Mr. Nkhoeli, burst into the house and attempted to murder him by
stabbing him several times with a knife
(count 2). They ransacked the
house and in the process killed the frail wife of Mr. Nkhoeli (count
3) as well as their 12 year
old son (count 5). Several stab wounds
and two deep lacerations of the skull were inflicted on Mr. Nkhoeli’s
wife. She was
killed by a stab wound in the neck. The boy was killed
by a stab wound through the heart.
[8] The first appellant
was 27 years of age at the time. He attended school up to standard 7.
At the time of his arrest he was employed
on a farm as a general
labourer, where he earned R1 800,00 per month. He is not married but
has a four year old daughter. This
daughter is cared for by his
mother with the help of a government grant. The first appellant is
not a first offender. On 30 March
2000 he was convicted of possession
of a firearm without a licence and theft and on these two counts,
taken together for purposes
of sentence, he was sentenced to six (6)
months imprisonment, wholly conditionally suspended. On 16 October
2003 he was sentenced
to three (3) years imprisonment on a charge of
negligent discharge of a firearm and on 20 January 2004 he was
sentenced to four
(4) years imprisonment for robbery.
[9] The second appellant
was also 27 years old and progressed to standard 8 at school. He is
not married and has no children and
was unemployed at the time of his
arrest. On 16 April 2004 he was convicted of housebreaking with the
intention to steal and theft
and sentenced to eighteen (18) months
imprisonment of which twelve (12) months imprisonment were
conditionally suspended for three
(3) years.
[10] The third appellant
was 33 years of age at the time, not married but living with a
partner. At school he reached standard 6.
The couple has three
children ranging between the ages of 11 and 2 years old. He worked as
a farm worker. On 11 September 2002
he was sentenced to twelve (12)
months imprisonment, wholly conditionally suspended for three (3)
years on a charge of theft.
[11] Each appellant was
in custody in respect of this matter before sentence for a period of
approximately of fifteen (15) months.
[12] The trial court said
the following in respect of substantial and compelling circumstances
in respect of count 3 and 5:
“
In my view I
am satisfied that all the accused’s personal circumstances
taken cumulatively with other mitigating factors such
as having
stayed in custody for over one year and three months, amount to
compelling and substantial which justify this court to
depart from
the prescribed life imprisonment in respect of the two counts of
murder in counts 3 and 5, but I am also satisfied
that, as submitted
by Adv Liebenberg, that the aggravating circumstances far outweigh
the mitigatory circumstances which justify
long terms of
imprisonment.
I must stress and state clearly that
the fact, as I did not mention, that the accused drank alcohol and
smoked dagga in my view
is an afterthought and a ploy to avoid
getting punishment that the accused deserve. It will be regarded and
taken as such with
the disdain that it deserves.”
[13] I am unable to
agree. The crimes in question are extremely serious. The appellants
attacked a family whilst they were in what
should have been the
safety of their home. The interest of the society requires that
violent intrusions into dwellings be severely
punished. The
appellants brutally and senselessly killed two innocent and
defenceless persons. The murder of the child in these
circumstances
especially fills one with horror. There is no legitimate ground on
which the roles played by the appellants in the
commission of these
crimes can be differentiated. Against this background I find nothing
in the personal circumstances of the appellants
that would render the
prescribed sentence disproportionate and unjust. The appellants are
not youths, they are not first offenders
and they take no real
responsibility for their crimes.
[14] I also find no other
mitigatory factors. I am prepared to accept in favour of the
appellants that the appellants were to some
extent under the
influence of intoxicating liquor and/or dagga. But there is no
evidence on record as to the extent of the influence
thereof on the
first and third appellants and the second appellant testified that
the drinking and smoking of dagga had no real
effect on him. To find
substantial and compelling circumstances on this ground in these
circumstances would amount to the speculation
in favour of the
accused person warned against above.
[15] A prescribed
sentence of life imprisonment should not be departed from on the
ground that the accused person had already been
in custody before
sentence in respect of the particular crime. To the sentencing court
imprisonment for life means exactly that.
See
section 73(1)(b)
of the
Correctional Services Act 111 of 1998
. It is not then concerned with
parole. See
section 73(6)(b)(iv)
read with
section 73(5)(a)(ii).
A
prescribed sentence of imprisonment for life for a crime is therefore
not rendered disproportionate by the fact that the accused
person had
already spent some period in prison in respect of that crime. Of
course, once substantial and compelling circumstances
are found on
legitimate grounds, the time spent in custody awaiting sentence is an
important consideration when imposing sentence.
It also goes without
saying that the period spent in custody before sentence may be taken
into account when considering whether
substantial and compelling
circumstances justify departure from a prescribed sentence other than
life imprisonment.
[16] In the result I am
convinced that the trial court erred in finding that substantial and
compelling circumstances justify departure
from the prescribed
sentences of life imprisonment in respect of counts 3 and 5. The
trial court should have imposed life imprisonment
in respect of each
of the appellants on each of counts 3 and 5 and that is what this
court should order. There is no merit in the
appeals against any of
the other sentences imposed. In view of the provisions of section
39(2)(a)(i) of the
Correctional Services Act, an
order of concurrent
serving of sentences is inappropriate.
[17] In the result the
following orders are issued:
1. The sentences of each
of the appellants on each of counts 3 and 5 and the orders in respect
of concurrent serving of sentences,
are set aside.
2. A sentence of life
imprisonment is imposed in respect of each appellant on each of
counts 3 and 5.
3. The sentences imposed
on the other counts are confirmed.
________________________
C.H.G. VAN DER MERWE,
J
I concur.
__________________
S.P.B. HANCKE, AJP
I concur.
_________________
M.B. MOLEMELA, J
On behalf of first
appellant: Mr. J.D. Reyneke
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of second
appellant: Me L. Smit
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of third
appellant: Me S. Kruger
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of respondent:
Adv. E. Liebenberg
Instructed by:
Office of the Director of
Public Prosecutions
BLOEMFONTEIN
/sp