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[2008] ZAWCHC 133
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Sibongo v S (A304/2004) [2008] ZAWCHC 133 (1 February 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE
NO
:
A304/2004
DATE:
1
FEBRUARY 2008
In
the matter between:
CINGICEBO
SIBONGO
Appellant
and
THE
STATE Respondent
JUDGMENT
MOTALA,
J
:
[1]
The appellant was charged in the Regional Court with murder. He
pleaded
not
guilty.
He was found guilty. The magistrate found that there were no
substantial and compelling circumstances justifying a departure
from
the sentence of 15 years' imprisonment, the minimum sentence
prescribed for murder by Act 105 of 1997 ("the Act").
He
sentenced the appellant to 15 years imprisonment. Appellant appeals
against the sentence only.
[2]
Counsel for the appellant has submitted that appellant did not
receive a fair trial as the provisions of the Act were not
pertinently
brought to his attention. It has been said many times
that as a general rule if the State intends to rely on the provisions
of
the Act, it should say so in the indictment {see for example
S
v Makatu
2006(2) SACR 582 at 586 paras 7 and 8). As stated by
Lewis,
JA
in
that matter, the rule is neither absolute nor inflexible.
[3]
The appellant in this matter was legally represented. That fact may
or may not, depending on the facts of each case
r
be sufficient to make it unnecessary for a court to draw the
provisions of the Act to the attention of an accused person. Each
case must be considered on its own facts.
[4]
In this matter, after conviction, the appellant's attorney asked for
a postponement. He said he had to take instructions as
to the
"minimum judgments" - clearly he meant minimum sentences.
Obviously he was aware of the applicability of the Act
and must have
informed the appellant accordingly. In my view, the appellant had a
fair trial.
[5]
In his judgment on sentence the magistrate found that the murder of
the deceased was planned, in my view, he erred in doing
so. The
evidence accepted by the magistrate was the following. The deceased
and the appellant had an intimate relationship and
that evening the
deceased telephoned appellant and asked him on the way home to visit
her where she was living. He came there several
hours later. The
deceased and the appellant then left together. The deceased told a
witness she was going to appellant's home.
Suddenly, for no apparent
reason, the appellant repeatedly stabbed the deceased. When arrested
a few hours later he was asleep
with a knife under him.
In
my view, on that evidence aEone it cannot be said that the killing of
the deceased was planned. The finding by the magistrate
that the
murder of the deceased was planned constitutes a misdirection and, in
my view, we are accordingly at large in considering
an appropriate
sentence.
[6]
The appellant was 29 years old when sentenced. He has matriculated
and he obtained the N6 diploma. He is a qualified electrician
and was
self-employed. He has no previous convictions. In considering whether
or not the State had proved intent on the part of
the appellant, the
magistrate, after reference to intent in the form of
dolus
eventuafis,
said
that the appellant "should have foreseen the possibility of
death hovering in attendance". Although it is not clear,
he does
appear to have found that the accused acted with
dolus
eventualts.
In
my view, the fact that the appellant has no previous convictions,
coupled with the finding of the magistrate that he acted with
dolus
eventualis,
constitute
substantial and compelling circumstances justifying a departure from
the prescribed sentence.
[7]
it is unfortunate that appellant did not disclose the true reason for
his attack on the deceased. It is, however, clear from
the evidence
that he attacked the deceased in full view of the witness while the
deceased was accompanying him wiMingly to his
home, that he must have
been in a rage. However, the seriousness of the offence and the
interests of the community must be given
due weight. Appellant
repeatedly stabbed a defenceless woman with whom he had a long
relationship. Violent attacks on women have
reached epidemic
proportions. A substantial period of imprisonment is the only
appropriate sentence in this matter.
[8]
I would:
Uphold
the appeal against sentence.
Set
aside the sentence of 15 years' imprisonment and substitute the
following therefor:
"The
accused is sentenced to 13 years' imprisonment".
BOZALEK,
J: I agree
BOZALEK,
J
MOTALA,
J: It is so ordered
MOTALA,
J