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[2012] ZAKZPHC 14
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Blose v S (AR 615/10) [2012] ZAKZPHC 14 (14 March 2012)
IN THE
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL,
PIETERMARITZBURG
CASE No : AR 615/10
In the
appeal of:
NHLANHLA
LUCKY BLOSE
….......................................................
Appellant
and
THE
STATE
…...............................................................................
Respondent
JUDGMENT
___________________________________________________________________________
VAN ZÿL, J.
,
This is an appeal, with leave of the trial Court, against sentence
only. At the trial the appellant was charged with one count
of
murder (Count 1) and one count of attempted murder (Count 2), both
arising from the events which occurred on 1December 2005
at or near
the Vukaphansi area of Kranskop, KwaZulu-Natal.
The appellant, who was legally represented throughout the trial,
tendered pleas of not guilty to count 1 (murder), but guilty
to
count 2 (attempted murder).These pleas were unacceptable to the
State and the trial proceeded, at the conclusion of which
the
appellant was acquitted on count 1 but convicted as charged on count
2. He was sentenced to twenty (20) years’ imprisonment
and now
appeals against that sentence.
The circumstances giving rise to the charges against the appellant
tend to elevate the seriousness of the offence of which he
has been
convicted. He was aptly described by the learned Judge President,
who presided over the trial, as a hired assassin.
This was against
the background that the appellant admitted entering into an
agreement to kill the complainant in count 2, namely
Mr Sikhaleni
Ncenguyise Mzila, in exchange for a payment totalling R5 000-00.
In order to accomplish the murder of Mzila the appellant, having
received a handgun from the conspirators in Durban, travelled
to
Kranskop by taxi in the company of one of them. However, upon
arrival the intended victim could not be located and the matter
stood over until the following day.
The next day the appellant was directed to a point along a road
which it was anticipated would be used by the intended victim,
who
was apparently an informal taxi driver by profession. The appellant
was in the company of a co-conspirator who eventually
identified an
approaching vehicle as that of the intended victim. The appellant’s
instruction was to kill the driver of
this vehicle.
In order to do so the appellant moved to the side of the road and,
pretending to be a potential passenger, together with one
other
unknown female, awaited the arrival of the complainant’s
vehicle and signalled to him to stop. The complainant duly
complied,
alighted from the vehicle, described as a “bakkie”, in
order to open the tailgate so that the appellant
and the woman could
board the vehicle.
By the appellant’s own admission, as the complainant lifted
the canopy lid to facilitate his passengers boarding, the appellant
produced the handgun and shot the complainant, aiming for his head.
According to the appellant the driver screamed and ran into
the bush
while the appellant, satisfied that he had mortally injured the
intended victim and thereby accomplished his task, also
departed
from the scene to claim his reward. The fact that in the end he only
received the initial deposit of R1 500-00
and not the balance
of R3 500-00 is irrelevant.
At the time of firing the appellant said that he had not noticed
whether there were other passengers in the loadbox of the vehicle,
but he had noticed two people in the passenger compartment.
According to the complainant he had nine passengers on board, two
of
whom were sitting in the driver’s compartment with the
remainder in the loadbox, covered by a canopy. The complainant
described how he was holding the canopy lid in position and as he
looked back over his shoulder, the appellant fired, hitting
him in
the neck.
It appears from the evidence that the complainant found himself
between the appellant and the rear of the vehicle when the fateful
shot was fired and that the same bullet which injured him, also hit
and killed the deceased in count 1. She was sitting closest
to the
rear of the vehicle, on its left hand side. The appellant contended
that, at the time, he was unaware of the presence
of the deceased in
the rear of the vehicle. In the circumstances he may have been
fortunate to be acquitted on count 1, but that
is irrelevant for
purposes of this appeal.
At the hearing before us Mr Marimuthu, who appeared for the
appellant, drew attention to two misdirections he attributed to the
trial Court. The first was that all concerned at the time of the
addresses on sentence appeared to believe that the offence of
attempted murder, of which the appellant had been convicted, fell
into the category of offenses contemplated in Part II of Schedule
2
of the
Criminal Law Amendment Act 105 of 1997
and read with the
provisions of
section 51(2)(a)
of the Act attracted a minimum
sentence of fifteen (15) years’ imprisonment in respect of a
first offender and twenty (20)
years in respect of a second
offender.
Part of the debate centred upon the previous conviction admitted by
the appellant. Unfortunately the record does not contain
a copy of
the relevant form reflecting full details of the conviction but from
the discussion contained in the record it is clear
that the
appellant had been convicted during or about April 1995 of murder,
at a time when he was 18 or 19 years of age. Since
the attempted
murder, the offense presently under consideration, was committed
during December 2005, the previous conviction
was at the time more
than ten (10) years old.
In his address in support of the appeal Mr Marimuthu submitted that
the offence in fact fell into
Part IV
of Schedule 2 of the Act and
read with
section 51(2)(c)(i)
attracted a minimum sentence of five
(5) years’ imprisonment.
The second misdirection relied upon by counsel was that the trial
Judge had not expressly forewarned defence counsel at the time
and
who was not the counsel in the appeal, that the court was
considering imposing a sentence in excess of the minimum sentence
(incorrectly at the time believed to have been fifteen (15) years’
imprisonment) and had thus not afforded him the opportunity
of
making submissions to counter the threat of such an increased
sentence.
In regard to this misdirection counsel relied upon the authority of
S v Mbatha
2009 (2) SACR 623
(KZP), as also referred to in S v Maake
2011 (1) SACR 263
(SCA). It is , of course, so that a different
approach was adopted in S v Mthembu 2011(1) SACR (KZP), but this
decision was not
brought to the attention of and considered by the
Court of Appeal when reference was made to Mbatha.
The present position is therefore that the trial court committed two
misdirections or irregularities, as correctly contended
for by
counsel for the appellant and conceded by counsel for the
respondent. As a result we are at large to reconsider and impose
sentence afresh upon the appellant. The question then is how to deal
with the situation and what the effects of those misdirections
have
upon the appeal before us.
The nature of the misdirections to be relied upon by the appellant
were apparent from counsel’s written heads of argument,
which
were delivered well in advance of the appeal hearing. In the light
of the gravity of the offence it became apparent to
me that this
court may well, in sentencing the appellant afresh, consider
sentence in excess of the prescribed minimum sentence.
In fairness to counsel for the appellant and in order not to
perpetuate the irregularity, I contacted counsel well in advance
of
the appeal hearing. This was in order to forewarn him that this
court may well, if it were to sentence afresh as was to be
contended
for on behalf of the appellant, consider imposing a sentence well in
excess of the prescribed minimum. In this regard
and in particular I
advised counsel that, speaking for myself, I could find little wrong
with the sentence of twenty (20) years’
imprisonment as
imposed by the trial court and that he needed to prepare to address
us accordingly.
Before us counsel for the appellant sought to emphasise those
factors he submitted were mitigating relevant to sentence. These
included that the appellant had pleaded guilty to the offence, had
cooperated with the authorities following his arrest, had
remorse
for his actions, was the father of and supported a young child and
was the eldest male child in his family. Factors personal
to the
appellant were that he was 29 years of age at the time of sentencing
and possessed only a Standard 3 level of education.
Counsel also submitted that despite the appellant’s previous
conviction (during 1995) of murder, he technically remained
a first
offender in respect of the offence of attempted murder and that, in
any event, the previous conviction had occurred just
more than
ten(10) years prior to the present offence.
Counsel for the state conceded the irregularities relied upon by the
appellant and that we were at large, insofar as sentencing
the
appellant was concerned. However, Ms Maphalala sought to emphasise
the aggravating features of the offence and contended
that the
sentence to be imposed by this court should reflect not only the
gravity of the offence, but the revulsion of society
for hired
killers, even where they are unsuccessful. She further submitted
that the sentence should also act as a deterrent to
other would be
offenders.
Whilst a deliberate attempt to take the life of another is always a
serious matter, in my view the offence is rendered all the
more
serious where the failed attempt to kill flows from an assassination
attempt at the hands of a hired killer. For someone
to agree to kill
a stranger, in cold blood in exchange for a monetary reward, is
particularly chilling.
In the present instance the appellant was also not a first offender,
having a prior conviction for murder, although more than
ten(10)
years had elapsed between the commission of the two offences. But
the fact is that he had deliberately taken a life on
a previous
occasion and had been convicted and punished. Despite that he
agreed, in the instant matter, to kill again in return
for a
monetary payment. Not only did he willingly enter upon the
agreement, but he went about preparing to give effect thereto.
He
collected the gun and travelled from Durban to Kranskop the day
thereafter. Upon his arrival the intended victim could not
be found,
so that he remained there in order to try again the following day.
He furthermore had to wait in ambush for some time
before the
intended victim made his appearance. When the latter came into view
the appellant used guile by pretending to be a
waiting passenger in
order not to alert the victim. Once the complainant stopped and
alighted from his vehicle, the appellant
kept up the pretence until
he was in a position to produce the gun and fire at the complainant
at close range. The fact that
the complainant survived, whilst an
innocent passenger in the taxi died, was through no lack of trying
on the part of the appellant.
The actions of the appellant speak of a man unmoved by the loss of
the life of another. The appellant had ample time for reflection
and
reconsideration before attacking the complainant. Nevertheless he
did not waiver. He also did not, as defence counsel at
the trial
conceded, have remorse to the extent that he surrendered himself to
the authorities after the attack upon the complainant.
He merely
cooperated after his arrest. That, to my mind does not signify true
remorse and may merely indicate a desire to try
and mitigate the
unfortunate consequences of being apprehended and charged.
Had the complainant died, instead of being left injured with a
degree of apparently permanent disability, there would in my view
have been a strong argument for a sentence of imprisonment for life,
even ignoring the provisions of the Act. Where, as here,
the minimum
sentence (on the basis that the appellant was a first offender), is
a mere five(5) years’ imprisonment in terms
of
Part IV
of
Schedule 2 read with
section 51(2)(c)(i)
of the Act, there is to my
mind no question that the minimum sentence is woefully inadequate in
all the circumstances of this
case and I suggested as much to
counsel for the appellant during the course of argument.
As also indicated to counsel during the course of argument and again
speaking for myself, I considered that the sentence of twenty
(20)
years’ as imposed by the trial court, despite the
irregularities referred to earlier in this judgment, represented
a
fair balance between the aggravating circumstances and mitigating
factors relevant to the crime. It also satisfies the so-called
traditional approach to sentencing which requires the court to
consider the triad consisting of the crime, the offender and the
interests of society' (S v Zinn
1969 (2) SA 537(AD)
at 540G) and it
evinces due regard for the purposes of punishment which include
deterrence, prevention, reformation and retribution.
(Director of
Public Prosecutions, KwaZulu-Natal v P
2006 (1) SACR 243
(SCA) at
paragraph 13).
That retribution and deterrence are well recognised factors in
punishment was also recognised by Nugent JA in S v Swart
2004 (2)
SACR 370
(SCA) where the learned Judge of Appeal stated in paragraph
12 that:
“
[12] What appears from those cases is
that in our law retribution and deterrence are proper purposes of
punishment and they must
be accorded due weight in any sentence that
is imposed. Each of the elements of punishment is not required to be
accorded equal
weight, but instead proper weight must be accorded to
each according to the circumstances. Serious crimes will usually
require
that retribution and deterrence should come to the fore and
that the rehabilitation of the offender will consequently play a
relatively
smaller role.
”
(See also: S v B
1985 (2) SA 120
(A), Viljoen JA at page 123)
In all the circumstances and in view of the misdirections already
referred to, I am of the view that this court is at large with
regard to sentence. However, I respectfully consider that the
sentence as imposed by the trial court was nevertheless an
appropriate
one.
I would therefore propose that the following order be made:-
The appeal against sentence is dismissed and the sentence of twenty
(20) years’ imprisonment as imposed by the trial court
is
confirmed.
____________________
VAN ZÿL, J.
I agree.
_______________________
SEEGOBIN, J.
I agree.
_______________________
GCABA, A.J.
APPEARANCES:
For the Appellant : Mr P Marimuthu
Instructed by the Justice Centre, 20 Otto Street, Pietermaritzburg.
For the Respondent : Adv Ms N Maphalala Instructed by the Director of
Public Prosecutions, Pietermaritzburg.
Date argued : 6 April 2011
Delivered :
14
TH
March
2012
Page
9
of
12