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[2006] ZAFSHC 150
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Mofokeng v S [2006] ZAFSHC 150 (23 March 2006)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal No. : A107/2004
In the appeal between:-
PATRICK
MALEFETSANE MOFOKENG
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
RAMPAI
J
et
MATHEBULA
AJ
_____________________________________________________
HEARD
ON:
13
MARCH 2006
_____________________________________________________
JUDGMENT
BY:
MATHEBULA
AJ
_____________________________________________________
DELIVERED
ON:
23
MARCH 2006
_____________________________________________________
[1] The
appeal lies against the sentence imposed by the regional magistrate,
Bethlehem, on the 26
th
July 2000. The appellant was sentenced to 15 (fifteen) years
imprisonment for murder.
[2] The
facts are briefly as follows:
On the
23
rd
January 1999 the appellant and his friend Letole Matthews Mahemu were
drinking liquor at a tavern. The deceased was also there.
A
misunderstanding arose between the deceased and one of the patrons.
They all went outside and a misunderstanding between the
deceased and
his girlfriend who was related to the appellant ensued. The
girlfriend was staying at the house next-door to the tavern.
[3] The deceased started
insulting his girlfriend and could not listen to any voice of reason
to stop. The appellant went to the
deceased who was now in the
street and told him that he must stop insulting his relative. The
deceased did oblige and this angered
the appellant. The appellant
pulled out his firearm and shot at the deceased but missed. The
deceased continued with his insults.
[4] About ten minutes
later the appellant fired a second shot at the deceased. On this
occasion the insults stopped immediately and
the deceased ran away.
The appellant ran after him to the corner of the street and gave up
the chase. He returned to the tavern
and continued drinking with his
friends.
[5] Mr.
Nkhahle submitted, on behalf of the appellant, that the court
a
quo
over-emphasized the gravity of the offence and the interest of
society at the expense of the personal circumstances of the
appellant.
He argued that the appellant was a first offender and had
pleaded guilty to the offence which showed remorse on his part. He
further
submitted that the consumption of liquor played an important
role in the commission of the offence.
[6] On
behalf of the respondent, Mr. Chalale submitted that the court
a
quo
was correct in not finding substantial and compelling circumstances.
The appellant shot the deceased when he had nothing to do with
him
and posed no danger at all. He argued that the appellant exercised
no mercy at all to the deceased when he shot at him twice
which
clearly showed his determination to kill him.
[7] It
is trite law that the Court of Appeal is circumscribed to interfere
with the finding of the trial court. See
REX
v DHLUMAYO AND ANOTHER
1948 (2) SA 677
(A) at 705;
S
v PIETERS
1987 (3) SA 717
(A) at 728 B â C and
S
v PILLAY
1977 (4) SA 531
(A) at 535 E â F. The Court of Appeal may
interfere if the trial court misdirected itself or the sentence is
shockingly inappropriate.
[8] In
this matter the deceased posed no danger at all to the appellant.
The appellant fired shots at the deceased on more than one
occasion
without any reason. He was brutal in his actions. The court in
RAMMOKO
v DIRECTOR OF PUBLIC PROSECUTIONS
2003 (1) SACR 200
(SCA) at 204 â 205 emphasized that the objective
gravity of the offence plays an important role. The appellant, after
he mercilessly
shot the deceased, still chased him only to return a
few minutes later and continued to consume liquor with his friends.
That is
how cheap life is to him. The appellant simply executed the
deceased.
[9] The
taking of another personâs life is a serious offence. In
S
v WEARNE
1979 (1) SALR 820
(A) at 823 C â E the court held that in certain
circumstances the personal circumstances should yield to the
seriousness of the
offence. It was held in
S
v MOHASE
1998 (1) SACR 185
(O) at 193 that it was important that the court in
imposing a sentence it should send out a clear message to potential
offenders.
[10] I
am of the view that the gravity of the offence committed and the
interest of society outweigh the personal circumstances of
the
appellant. The message must be send out to other licensed firearm
owners that firearms are lethal weapons which must be used
with great
care. Reckless usage of a firearm with dire consequences like in
this matter will be severely punished. Perhaps that
is why stringent
requirements have been imposed by the legislature for aspirant
firearm owners. In my view, the magistrate was correct
in not
finding substantial and compelling circumstances to warrant a lesser
sentence. The appeal ought to fail.
[11] Accordingly
my order is the following:
The appeal is
dismissed.
The conviction and the
sentence are confirmed.
___________________
M.A. MATHEBULA, AJ
I
agree.
______________
M.H. RAMPAI, J
On
behalf of appellant: Adv. R.J. Nkhahle
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. S. Chalale
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN
/sp