About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2008
>>
[2008] ZAWCHC 162
|
|
Botso v S (A614/2006) [2008] ZAWCHC 162 (7 March 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
A614/2006
DATE
:
7
MARCH 2008
In the matter between:
SIBONGILE
BOTSO
Appellant
and
THE
STATE
Respondent
JUDGMENT
CROWE,
AJ:
[1]
On 21 May 2004 the appellant, as accused number 2, and his co-accused
Umzekelo Notje(?) as accused number 1, were both convicted
of the
murder of one Xolani Memani under case number SH1/58/03 in the
Regional Court, Bellville. The trial Court found that the
death of
the deceased was caused by the appellant and his co- accused acting
jointly.The trial Court did not impose the minimum
sentence of 15
years prescribed for first offenders who commit this offence in
circumstances other than those referred to in Part
t of Schedule 2 of
Act
105 of 1997.
[2]
Having regard to the factors which a court must consider at the time
of sentence, including that the appellant and his co-accused
had
spent almost two years in custody awaiting trial, it found
substantial and compelling circumstances to exist justifying the
imposition of a lesser sentence. In the exercise of its sentencing
discretion it reduced the minimum sentence "met die tydperk
wat
julle reeds in hegtenis is" and imposed a sentence of 13 years'
imprisonment on both the appellant and his co-accused.
It also
declared them both unfit to possess a firearm in terms of section 12
of Act 75 of 1969. Appellant appeals against sentence
only having
been granted leave to do so on petition to this Court in terms of
section 309(C) of Act 51 of 1977.
[3]
Advocate
Marco
for appellant submits that this sentence is unduly harsh and
startiingly inappropriate in the circumstances. In this regard she
relied on the following
dicta
in
connection with the correct Appellate approach to the question of
sentence in the case of
S
v Malqas
2001
(1} SACR at 469 and 478f-h:
"Even
in the absence of material misdirection, an Appellate Court may yet
be justified in interfering with the sentence imposed
by the trial
court. It may do so when the disparity between the sentence of the
trial court and the sentence which the Appellate
Court would have
imposed had it been the trial court is so marked that it can
properly be described as shocking, startling or
disturbingly
inappropriate. It must be emphasised that in the latter situation
the Appellate Court may not substitute the sentence
which it thinks
appropriate merely because it does not accord with the sentence
imposed by the trial court, or because it prefers
it to that
sentence. It may only do so where the difference is so substantial
that it attracts epithets of the kind
J
have
mentioned".
[4]
In considering sentence, the triad of factors referred to in
S
v Zinn
1969(2) SA at 537 (A) at 540G, namely the crime, the offender and
the interests of society, must be carefully considered as well
as
the specific interests of the victim as referred to in
S
v Isaacs
2002(1) SACR 176 (C). Ms
Marco
submits that the trial Court did not property take into account the
role appellant ptayed in the offence. The fact that he was
intoxicated, the role of his co-accused, that he was also stabbed
and that there was no premeditation. I do not share that view
as it
is clear that the trial Court did have proper regard thereto.
[5]
I am, however, of the view that the sentence of the trial Court is
so markedJy disparate from that which I would have passed
as to be
startlingly inappropriate and that this Court is therefore justified
in interfering with the sentence imposed. In this
regard J consider
that the trial Court was correct in finding substantial and
compelling circumstances exist which justify the
imposition of a
lesser sentence. However, I am of the view that the imposition of a
sentence of 13 years' effective imprisonment
in this matter
over-emphasises the penal and retributive aspects of punishment at
the expense of the interests of the appellant
and represents
punishing him "to the point of being broken" with no blend
of mercy as contemplated in
S
v Macko
2005(2) SACR 223 (E).
[6]
In my view, the fact that the appellant is a first offender, the
lack of premeditation, as well as the circumstances of the
crime and
the role played by the various protagonists therein and the victim,
are such that the objective punishment will be
better served by
suspending a substantial portion of the sentence imposed by the
trial Court so that the appellant will still
have to serve a long
and arduous term of effective imprisonment but will be able,
provided he avoids future violent conduct,
to avoid a further
substantial period of imprisonment.
[7]
In the result i would make the following order:
1. The
appeal succeeds.
2. The
sentence imposed upon the appellant by the trial Court is altered to
read:
"Thirteen
years' imprisonment three years whereof are suspended for five years
on condition that accused 2 is not found guilty
of murder, culpable
homicide (involving any physical attack of another person) and
assault with the intent to do grievous bodiiy
harm committed during
the period of suspension.
3. The
accused is declared unfit to possess a firearm in terms of section
12 of Act 75 of 1969".
4. It
is directed that the substituted sentence imposed upon the appellant
today shall be considered to have been imposed on the
date of the
original sentence namely 21 May 2004.
[7]
In the course of this appeal it has become apparent that the
appellant's co-accused, Umzekelo Notje (accused number 1 at the
trial) has not appealed against his sentence. After careful
consideration I have come to the conclusion that one cannot
differentiate
between the circumstances of the appellant and
UmzekeEo Notje and accordingly that it would not be in the interests
of justice
to allow the sentence of Umzekelo Notje to stand while
interfering with the sentence of the appellant as set forth above.
[8]
In the circumstances and in the exercise of this Court's review
powers I would interfere with the sentence imposed on Umzekelo
Notje
as follows:
1.
The
sentence imposed upon Umzekelo Notje
by the trial Court is
altered to read: "Thirteen years' imprisonment, three years
whereof are suspended for five years
on condition that accused
number 1 is not found guilty of murder, culpable homicide
(involving any physical attack of another
person) and
assault
with the intent to do grievous bodily harm committed during the
period of suspension.
2. You
are declared unfit to possess a firearm in terms of section 12 of
Act 75 of 1969".
3. It
is directed that the substituted sentence imposed upon accused
number 1 today shall be considered to have been imposed
on the date
of the original sentence namely 21 May 2004.
CROWE,
AJ
VAN
REENEN, J: I agree and it is ordered accordingly
VAN
REENEN, J