About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2009
>>
[2009] ZAGPPHC 73
|
|
Majola v S (A50/2007) [2009] ZAGPPHC 73 (21 May 2009)
IN THE HIGH COURT OF SOUTH
AFRICA
(NORTH AND SOUTH GAUTENG HIGH
COURT, PRETORIA)
Date: 2009-05-21
Case Number: A50/2007
UNREPORTABLE
In the matter between:
JULY NKOSINATHI
MAJOLA
Appellant
and
THE STATE
Respondent
JUDGMENT
SOUTHWOOD J
[1]
This
is an appeal against sentence. On 5 December 2005 the appellant was
convicted in the Pretoria High Court (per Ranchod AJ)
of murder,
housebreaking with intent to rob and robbery with aggravating
circumstances, contravening section 2 of the Arms and
Ammunition Act,
75 of 1969 (unlawful possession of a firearm) and contravening
section 36 of Act 75 of 1969 (unlawful possession
of ammunition).
The appellant’s co-accused, Thabo Jabu Montsha, was convicted
of housebreaking with intent to rob and robbery
with aggravating
circumstances. On 7 March 2006 the court
a
quo
sentenced
the appellant to life imprisonment for the murder, 15 years
imprisonment for the housebreaking with intent to rob and
robbery
with aggravating circumstances and three years imprisonment for
contravening sections 2 and 36 of Act 75 of 1969, the two
counts
being taken together for the purpose of sentence. The court
a
quo
ordered
that the sentences on all the other counts run concurrently with the
sentence of life imprisonment for murder. The court
a
quo
sentenced
the appellant’s co-accused to 7 years imprisonment of which 4
years were conditionally suspended for 5 years.
[2] The appellant
unsuccessfully applied to the court
a
quo
for
leave to appeal against the convictions but was granted leave to
appeal to this court against the sentences. The appellant’s
petition to the Supreme Court of Appeal for leave to appeal against
the convictions was also unsuccessful.
[3] On appeal the
appellant’s counsel contends that this court must set aside the
sentences because of serious misdirections
by the court
a
quo
and
accordingly that this court is at liberty to reconsider sentence and
impose fresh sentences. Appellant’s counsel relies
on the
following misdirections by the court
a
quo
:
(1) It wrongly
took into account the fact that the appellant had a previous
conviction for unlawful possession of ammunition
when it was common
cause that the appellant did not have such a previous conviction;
(2) It wrongly
took into account the fact that the appellant had a previous
conviction for unlawful possession of ammunition
in deciding that
there were no substantial and compelling circumstances which would
justify the imposition of a lesser
sentence;
(3) It failed to
consider the appellant’s relative youthfulness in
conjunction with the other mitigating factors in deciding
whether
there are substantial and compelling circumstances which would
justify the imposition of a lesser sentence;
(4) If wrongly
found that the fact that a person had lost his life in the incident
was an aggravating factor;
(5) It wrongly
found that –
(i) the appellant
was the mastermind who played a leading role in the commission of
the offences;
(ii) the
appellant was personally responsible for the killing of the
deceased;
(iii) the
appellant was in possession of the firearm used to murder the
deceased;
When these
findings are not supported by the facts.
[4] In its judgment
the court
a
quo
accepted
the evidence of the state witnesses (i.e. that the appellant went to
the premises in question, broke the lock on the door
by firing a shot
at it, entered the premises with his co-perpetrators, told his
co-perpetrators what to steal, shot and killed
the deceased, who was
looking after the premises, and then left, taking the stolen
property) and rejected the appellant’s
alibi (i.e. that he was
at home with his father at the time of the incident). The court
a
quo
also
rejected the evidence of the appellant’s father who, the court
found, would do anything to protect the appellant. There
was an
overwhelming case against the appellant. The two main witnesses and
his co-accused placed him on the scene committing the
crimes. He was
clearly the leader of the group, the only one armed with a firearm
and the instigator of the crimes. The deceased
was found dead in a
freezer. He had been shot four times in the head and neck.
[5] In
S
v Pillay
1977
(4) SA 531
(A)
at
535D-G the court said the following with regard to the effect of a
misdirection –
‘
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 enquiry in an
appeal against sentence however, is not whether
the sentence was
right or wrong, but whether the Court in 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,
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 that
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 consider the sentence afresh”’.
[6] Although the
court
a
quo
did
not find that the murder of the deceased was planned or premeditated
it is clear from the judgment that the appellant murdered
the
deceased either in committing or after having committed the offence
of robbery with aggravating circumstances. Accordingly,
section
52(1) read with Part I of Schedule 2 of Act 105 of 1997 applied and
the court
a
quo
was
obliged to sentence the appellant to life imprisonment unless it
found, in terms of section 51(3)(a) of the Act, that substantial
and
compelling circumstances existed which justified the imposition of a
lesser sentence. Similarly, in terms of section 51(2)(a)
read with
Part II of Schedule 2 of Act 105 of 1997, the court was obliged to
sentence the appellant to 15 years imprisonment for
the robbery with
aggravating circumstances unless it found substantial and compelling
circumstances. The two offences are very
serious and that the
Legislature clearly intends that they be severely punished.
[7] The court
a
quo
was
aware of the seriousness of the offences and the heavy prescribed
sentences which must be imposed and that a lesser sentence
could be
imposed if the court found that there were substantial and compelling
circumstances which would justify a lesser sentence.
The court
considered the appellant’s personal circumstances and the fact
that from the Probation Report the appellant appears
to come from a
model home and up to the date of the crimes seemed to be a model
citizen. Nevertheless the court
a
quo
could
not find the existence of substantial and compelling circumstances.
Not even the appellant’s relative youthfulness
when the crimes
were committed persuaded the court that such circumstances existed.
In finding that this was so the court
a
quo
took
into account the fact that the appellant had two previous
convictions: one for housebreaking and one for unlawful possession
of ammunition. In referring to the second previous conviction the
court
a
quo
erred
as it was common cause that the appellant did not have such a
previous conviction.
[8
] This
error is duplicated in the appellant’s argument and will be
dealt with as one ground. The court
a
quo
clearly
was confused by the discussion of the previous convictions before
sentence was passed. In my view this clear misdirection
does not
vitiate the court
a
quo’s
decision
on sentence. The nature of the misdirection, the degree and the
seriousness of the misdirection, do not show that the
court did not
exercise its discretion at all or exercised it improperly or
unreasonably. It is clear from its reasons that the
court gave due
consideration to the seriousness of the crimes, the sentences
prescribed, the possibility of lesser sentences in
the event of a
finding of substantial and compelling circumstances and the interests
of the community. The court’s reasons
are balanced and fair.
The fact that the appellant was (about) 20 years old at the time of
the crimes was considered and quite
correctly the court considered
that the previous conviction for housebreaking could not be ignored.
The court obviously had in
its mind the role of the appellant in
committing the offences and the callousness of the murder. There is
no suggestion that the
deceased resisted or made any attempt to stop
the robbers from stealing his employer’s property. On the
evidence there are
two possible reasons for the murder. Either the
appellant killed the deceased so that the deceased would not be able
to identify
him or the appellant killed him simply because he could.
Neither reason reflects favourably on the appellant. The appellant
then
stuffed the body into the freezer. None of this indicates that
the appellant’s youthful lack of judgment moved him to commit
the crimes.
[9
] The
appellant’s complaint that the court
a
quo
misdirected
itself by finding that a person lost his life in the incident is
misconceived. The court
a
quo
found
it an aggravating factor that the appellant took the life of a man
who was entrusted by his employer to look after the tuck
shop by
sleeping inside it in an adjacent room.
[10
] There
is also no merit in the so-called evidentiary misdirections. These
are not misdirections at all. They are the factual
findings which
the court
a
quo
made
when convicting the appellant. The court
a
quo
found
that the appellant played a leading role in the commission of the
offences, that he was the only one armed and that the deceased
died
at his hand. The appellant’s counsel argued strenuously that
the appellant is entitled to attack these factual findings
to show
that they are not correct. While conceding that the appellant is
guilty he argued that the true facts will show that the
appellant was
less blameworthy than the court
a
quo
found.
The appellant’s counsel was unable to refer to any authority
in support of this approach and conceded that it is novel.
In my
view it is misconceived. An appeal against sentence is governed by
section 322(2) of Act 51 of 1977 which provides that
the court of
appeal may confirm the sentence or may delete or amend the sentence
and impose such punishment as ought to have been
imposed at the
trial. These words are explicit and preclude the court of appeal
from enlarging the ambit of an appeal against
sentence so as to
include an appeal against the conviction – see
S
v Matshoba and Another
1977
(2) SA 671
(A)
at
677G-H;
S
v Langa en Andere
1981
(3) SA 186
(A)
at
189F-H. It follows that when an appellant has been refused leave to
appeal against his conviction his appeal against sentence
must be
considered in the light of the facts found by the court convicting
him. If the appellant is allowed to challenge the correctness
of the
factual findings of the trial court the state will then seek to
justify these findings and a rehearing of the merits will
take place.
That is what the refusal of leave to appeal against conviction does
not permit. The judgment in
S
v Vilakazi
2009
(1) SACR 552
(SCA)
relied
on by the appellant’s counsel does not purport to overturn the
judgments in
S
v Matshoba and Another supra
and
S
v Langa en Andere supra
or
lay down a new principle that the court of appeal may go into the
merits of the conviction in order to decide the appeal against
sentence.
[11
] The
alibi defence adopted by the appellant and the fact that the
appellant did not testify in mitigation of sentence means that
the
appellant could not challenge the correctness of the factual findings
made by the court to advance an account in which he played
a lesser
role. As already mentioned, there is no appeal against the
convictions and the versions which the court accepted are
the
versions which this court must accept.
[12
] It
is striking that the appellant has demonstrated no remorse
whatsoever. Throughout the probation officer’s report it
is
stated repeatedly that he denies that he committed the crimes.
[13] I
n
my view, the sentences which were imposed are proper sentences and
are appropriate in the circumstances of the case. I would
have
imposed those sentences if I had been required to approach the
question of sentence afresh.
Order
[14] The appeal against sentence is
dismissed.
______________________
B.R SOUTHWOOD
JUDGE OF THE HIGH COURT
I agree
______________________
E.M. MAKGOBA
JUDGE OF THE HIGH COURT
I agree
______________________
S. SAPIRE
ACTING JUDGE OF THE HIGH COURT
CASE NO:
A50/2007
HEARD
ON: 15 April 2009
FOR
THE APPELLANT: ADV. L. KOK
INSTRUCTED
BY: Legal Aid Board
FOR
THE RESPONDENT: ADV. B.E. MAOKE
INSTRUCTED
BY: Director of Public Prosecutions
DATE
OF JUDGMENT: 21 May 2009