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2009
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[2009] ZAFSHC 121
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Mokone v S (A131/09) [2009] ZAFSHC 121 (19 November 2009)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A131/09
In
the appeal between:-
LEHLOHONOLO
ERNST MOKONE
Appellant
and
THE
STATE
Respondent
______________________________________________________
CORAM:
RAMPAI,
J
et
JORDAAN, J
et
MOLOI,
J
______________________________________________________
HEARD
ON:
16
NOVEMBER 2009
______________________________________________________
JUDGMENT
BY:
JORDAAN,
J
______________________________________________________
DELIVERED
ON:
19
NOVEMBER 2009
______________________________________________________
[1] The appellant, a 36
year old male, has been convicted of murder in that he killed his
wife with whom he has been married for
approximately three weeks at
the time by shooting her twice from behind. The first shot was into
her back and the second shot
in her head.
[2] The appellant, though
not denying that he shot and killed his wife, did not have any
recollection of what happened and could
not give any explanation for
his deeds. In regard to sentence the provisions of Act 105 of 1997
are applicable, more in particular,
the provisions of section
51(2)(a)(i) of the said Act which provides for a minimum sentence of
15 (fifteen) years imprisonment
for a first offender such as the
appellant was.
[3] The trial court dealt
with the factual circumstances of the offence, the personal
circumstances of the appellant and the mitigating
factors pertaining
to the appellant, but was of the opinion that the gravity of the
offence, being an execution style murder, the
appellantâs perceived
lack of remorse and the lack of any explanation for appellantâs
deeds, justified a sentence of 25 (twenty
five) years imprisonment
and sentenced the appellant accordingly.
[4] The appeal is against
that sentence and brought with the leave of the court
a
quo
.
[5] On behalf of the
appellant, Mr. Van der Merwe submitted that the trial court did not
sufficiently take into account the personal
circumstances of the
appellant and submitted that the court overemphasised the gravity of
the offence in comparison to the mitigating
factors pertaining to the
appellant, which consisted, according to Mr. Van der Merwe, more
particularly of the following:
1. The appellant was a
first offender at the age of 36 years.
2. He was a
well-respected member of the community and well-educated in that he
did a course in electronics.
3. He was economically
active in that he did repairs to electronic equipment for his own
account.
4. He was also socially
active in being a member of a community policing forum in which
capacity he regularly acted as mediator
to solve disputes between
members of the community and gave advice to members of the community
if and when they would have problems.
5. He was known as a
good-hearted, kind and peaceful person.
6. Even the family of
the deceased did not bear a grudge against him at least to the extent
that they allowed him to attend the
funeral service.
7. There were signs of
remorse in that he did not deny that he shot her and according to the
evidence held her in his arms shortly
after the incident.
[6] In view of the
aforesaid, so Mr. Van der Merwe contended, the sentence imposed is
shockingly inappropriate and harsh. He submitted
that a proper
sentence in the circumstances would be imprisonment of between 10
(ten) and 12 (twelve) years.
[7] Ms Claasen, on behalf
of the respondent, conceded that the sentence imposed was shockingly
harsh and inappropriate in the circumstances.
[8] The aforesaid
mitigating circumstances are borne out by the evidence, in particular
the evidence of the eyewitness to the events,
the neighbour one S.E.
Tsomo, who obviously knew the appellant well.
[9] The trial court did
not explicitly deal with the question whether there were substantive
and compelling circumstances justifying
a discretionary lesser
sentence as envisaged in section 51(3)(a) of the aforesaid Act and
did not enter any such circumstances
in the record of proceedings.
In this regard the trial court only remarked as follows:
âA
minimum sentence of 15 (fifteen) years imprisonment has been
prescribed by the Legislature for a crime such as this, however,
although I am not obliged to impose the minimum sentence only, I can
impose a heavier sentence if it is called for in the circumstances.â
[10] One gains the
impression that the trial court by implication found that no such
circumstances existed in this matter.
[11] In view of the fact
that the trial court did not make any explicit finding in this
regard, this court has to deal with the
question whether such
circumstances exist and if so, what an appropriate sentence would be.
[12] The fact that the
appellant is a first offender is in itself not such a circumstance.
The Legislature already made provision
for that fact by prescribing a
lesser minimum sentence for first offenders. That, however, does not
mean that it should be totally
disregarded. The fact that the
appellant already attained the age of 36 years with a clean slate
can, in my view, be taken into
consideration together with other
mitigating circumstances.
[13] In my view, the
circumstances referred to above, taken cumulatively, do constitute
substantive and compelling circumstances
as envisaged in section
51(3)(a) of the aforesaid Act, which justifies this court to impose a
discretionary sentence. That, however,
does not mean that a lesser
sentence than the prescribed minimum should inevitably be imposed.
[14] It must be taken
into account that the appellant shot and killed his young wife even
after she pleaded with him not to shoot
her. Why he has done that,
remains a mystery. Something must have triggered the usually
peaceful and kind hearted appellant to
do what he did.
[15] According to the
appellant, he was very hungry at that stage, he asked his wife for
food but was told that there was nothing,
not even milk, but maize
porridge available. That might have been the reason why he became so
angry as to commit the hideous crime.
To kill someone only because
of a lack of food would, to my mind, rather be an aggravating than a
mitigating factor but I express
no firm view on that, nor on the
possibility that that might have been the trigger for his subsequent
behaviour.
[16] I am, however,
convinced that the sentence imposed by the trial court is shockingly
severe and inappropriate. I am of the
view that an appropriate
sentence, taking into account all the relevant circumstances
pertaining to this matter, would be imprisonment
for a period of 12
(twelve) years.
[17] In the result I am
of the opinion that the appeal against sentence should succeed and
that the sentence should be set aside
and a sentence of 12 (twelve)
years imprisonment be substituted therefore.
_______________
A.F. JORDAAN, J
I
concur and it is so ordered.
______________
M.H. RAMPAI, J
I concur.
____________
K.J. MOLOI, J
On behalf of
appellant: Mr. P.L. van der Merwe
Instructed by:
Legal Aid Board
BLOEMFONTEIN
On behalf of
respondent: Adv. B. Claassens
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
/sp