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[2008] ZAWCHC 190
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Mazwi v S (A703/2007) [2008] ZAWCHC 190 (9 May 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
A703/2007
DATE:
9
MAY 2008
In
the matter between:
MICHAEL
VUYO MAZWI
Appellant
and
THE
STATE
Respondent
JUDGMENT
BOZALEK.
J
:
[1]
The appellant was found guilty in the Wynberg Regional Court on 14
October 2003 on one count of murder and one count of contravening
section 2(1) of Act 71 of 1968 by being in possession of a dangerous
weapon, namely a knife. The two counts were taken together
for the
purposes of sentence and the appellant was sentenced to 15 years'
imprisonment. With the leave of the magistrate he now
appeals
against sentence.
[2]
The deceased was one Christopher Wildschutt. He was stabbed to death
at Heinz Park on 6 October 2002. On the evidence led
by the State it
appeared that appellant, who harbored a grudge against the deceased,
attacked him without provocation in broad
daylight. The deceased had
been holding his infant child when appellant stole up on him and
began stabbing him from behind. The
deceased then laid the infant
down but, according to the only witness to the crime, a 10 year old
boy, appellant continued his
attack upon the deceased, who was at
all times unarmed. Shortly afterwards he collapsed and died later
that night.
[3]
A postmortem report revealed the cause of death to be stab wounds to
the back and that the deceased had sustained six stab
wounds in all,
two of them over the left upper arm. Of the remaining four wounds to
the back, three of them severed or penetrated
the aorta, left renal
vein and right kidney respectively.
[4]
Appellant admitted killing the deceased and indeed initially sought
to plead guilty. He was legally represented however and
his plea was
changed to one of not guilty. His defence was one of self-defence in
that he claimed that the deceased had attacked
him with a knife
which he had wrested from him and used to stab the deceased who
u/ould not release him from his grip. The magistrate
righttarejected
the appellant's defence. What did emerge from his evidence and that
of several State witnesses, however, was
that some time before the
incident, the exact lapse of time not being clear but being in the
region of two months, the deceased
had stabbed the appellant in the
neck. Quite clearly, this previous incident played a role in
appellant's attack upon the deceased.
[5]
The magistrate found that the aggravating circumstances were such
that
they
outweighed
appellant's favourable personal circumstances to the extent that he
could not find any substantial or compelling circumstances
as
envisaged in section 51(3)(a) of Act 105 of 1997. Accordingly, he
sentenced appellant to the prescribed minimum term of 15
years'
imprisonment.
[6]
It appears from the record that the appellant's representative
conceded that there were no substantial and compelling circumstances
which would justify the Court, imposing a lesser sentence. I
consider that this concession was too readily made. Appellant was
a
first offender, 43 years old and the father of five children aged
between 13 and 2 years of age. At the time of sentence his
wife was
about to give birth to his sixth child. Appellant was in regular
employment as a tiler earning R450 per week and was
the sole
breadwinner.
[7]
The magistrate took these personal circumstances into account but
failed to mention that appellant had initially sought to
plead
guilty and had never denied killing the deceased. He also made no
mention, and thus appeared to take no account of the
fact that the
fatal attack had obviously been as a result of bad blood between the
two men arising out of the previous incident
when the deceased had
stabbed appellant in the neck. Unfortunately, even appellant's legal
representative paid no attention to
this factor at the time of
sentencing.
[8]
In my view, these latter factors coupled with the accused's personal
circumstances and the fact that he was a first offender
at a
relatively advanced age are cumulatively sufficient to constitute
substantial and compelling circumstances and thus to justify
a
departure from the prescribed minimum sentence, As was stated in
S
v Malqas
2001(1) SACR at 471f-g:
"All
factors traditionally taken into account in sentencing, whether or
not they diminish moral guilt, continue to play a
role, none is
excluded from the outset from consideration in the sentencing
process. The ultimate impact of all the circumstances
relevant to
the sentencing must be measured against the composite yardstick
substantial and compelling and must be such as to
cumulatively
justify a departure from the standard response that the Legislature
has ordained".
[9]
In my view, notwithstanding the aggravating features in this matter
which the magistrate correctly emphasised, namely the
unprovoked,
deadly and sustained attack upon the unsuspecting deceased as he was
holding his child, there were substantial and
compelling
circumstances present. In my view, the magistrate erred in not
taking into account the two factors which I have mentioned
and in
not finding that these, together with the appellant's personal
circumstances and his clean record, amounted to substantial
and
compelling circumstances.
[10]
I am further of the view that such errors and failure to make the
finding amounted to a misdirection on the part of the magistrate
in
sentencing appellant. It follows then that this Court is free to
sentence the appellant afresh. Notwithstanding the appellant's
favourable personal circumstances and the other factors which count
in his favour, it is clear that the only appropriate sentence
is one
of long term imprisonment. Only such a sentence serves the purposes
of sentencing, namely retribution, prevention, deterrence
and
rehabilitation whilst at the same time emphasising the sanctity of
life.
[11]
Taking
all relevant factors into account I consider that an appropriate
sentence would be one of
12
years'
imprisonment. I see no reason to interfere with the magistrate's
approach to sentencing on count
2
which
was to take it and count
1
together
for the purposes of sentence.
[12]
In
the result I would allow the appeal and substitute the sentence
imposed by the magistrate with one of
12
years
imprisonment.
IRISH,
A J: I agree
BOZALEK,
J
:
The appeal against sentence is allowed. The sentence of 15 years
1
imprisonment is set aside. Counts 1 and 2 are taken together for the
purposes of sentence and the appellant is sentenced to 12
years'
imprisonment effective from the original date of sentencing.
BOZALEK, J