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[2024] ZANCHC 9
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Molale v S (CA&R 56/2022) [2024] ZANCHC 9 (9 February 2024)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
number. CA&R 56/2022
Date heard:   27/02/2023
Date delivered:
09/02/2024
Reportable:
Yes/No
Circulate
to Judges:
Yes/No
Circulate
to Magistrates:    Yes/No
In
the matter between:
RICHARD
MOLALE

APPELLANT
and
THE
STATE

RESPONDENT
CORAM:
Williams J et Nxumalo J
JUDGMENT
WILLIAMS
J:
1.
The appellant, Mr Richard Molale, was convicted in the Regional

Court, Barkly West, on two counts, namely, murder read with the
provisions of s51(2) of the Criminal Law Amendment Act 105 of 1997

(the Act) and robbery with aggravating circumstances read with the
provisions of s51(2) of the Act.  He was sentenced on the
count
of murder, to life imprisonment and on the count of robbery to 15
years imprisonment.
2.
This appeal lies only against the sentences imposed and on the
basis,
(i) that the trial court had no jurisdiction to sentence the
appellant to life imprisonment on the murder charge; and (ii)
that
the trial court erred in finding that no substantial and compelling
circumstances were present to justify a deviation from
the minimum
prescribe sentence.  The appeal against the appellant’s
convictions on the basis that the trial court was
not properly
constituted, has been abandoned by Mr Fourie who appeared for the
appellant and correctly so.
The jurisdiction of
the regional court
3.
The appellant was charged with murder and robbery with aggravating

circumstances, both counts read with the provisions of s51(2) of the
Act. He was convicted accordingly.  The trial court clearly

stated in his judgment that “
He is accordingly convicted of
murder and robbery.  The provisions of section
s51(2)
of
Act 105 of 1997 are therefore applicable.”
4.
As a first offender in respect of both offences, the prescribed

minimum sentence in terms of s 51(2) is 15 years imprisonment.
S51(2) further provides that the maximum term of imprisonment

that a regional court may impose shall not exceed the minimum term of
imprisonment by more than 5 years.
5.
In his judgment on sentence however, the trial court, having
regard
to the evidence that the murder was committed during the course of
the robbery, found that s51(1) of the Act applied and
that the
prescribed sentence in respect of the murder conviction is one of
life imprisonment.  Having found no substantial
and compelling
circumstances to deviate from the sentence so prescribed the
appellant was sentenced to life imprisonment on the
murder charge,
and 15 year imprisonment on the charge of robbery with aggravating
circumstances, the sentences to be served concurrently.
The
question to be answered is whether the regional court had the
jurisdiction to sentence the appellant under s51 (1) of the Act.
6.
A similar situation (with regard to rape) arose in the Constitutional

Court in the matter of S
v Ndlovu
2017(2) SACR 305(CC).
Whilst the appellant had been charged with rape under s 51(2), the
evidence led during the trial pointed
to a violent rape during which
the complainant sustained serious injuries.  The regional
magistrate, on the strength of the
grievous bodily harm inflicted
upon the complainant, sentenced the appellant to life imprisonment
under s51 (1) of the Act.
7.
The Constitutional Court held as follows:
7.1
That magistrate’s courts are creatures of statute and have no
jurisdiction beyond
that granted by the Magistrate’s Court Act
and other relevant statutes;
7.2
The appellant had unambiguously been convicted of rape read with the
provisions of s51 (2)
of the Act;
7.3
The charge was not defective or incomplete and thus capable of being
cured by evidence as
provided for in
s88
of the
Criminal Procedure
Act 51 of 1977
;
7.4
That the regional court therefor had no jurisdiction to sentence the
appellant to life imprisonment
in terms of s51 (1) of the Act and
that the sentence had to be set aside; and
7.5
That an appropriate sentence be imposed within the regional court’s
jurisdiction in
terms of s51 (2) of the Act.
8.
The Constitutional Court also reiterated the responsibility
of both
prosecutors and the courts to ensure that accused persons be
prosecuted and convicted in terms of the correct provisions
of the
Act by respectively applying for an amendment to the charge, should
it not accurately reflect the evidence led, and for
the court to
invite the state to apply to amend the charge and to give the defence
the opportunity to make submissions with regard
to any prejudice
which may be suffered as a result of such an amendment.
9.
In light of the
Ndlovu
judgment, the state represented by Ms M
Engelbrecht, conceded that the trial court
in casu
had no
jurisdiction to sentence the appellant to life imprisonment on the
charge of murder and as such the sentence should be set
aside.
10.
The parties were
ad idem
that we were in as good a position as
the trial court to sentence the appellant afresh and that is would be
in the interest of justice,
given the time that has elapsed since the
appellant was sentenced, that the matter not be referred back to the
regional court for
sentencing.  The same procedure was followed
in
Ndlovu
and there can therefore be no obstacle to this court
imposing an appropriate sentence.
Relevant circumstances
11.
The accepted evidence which served before the trial court can be
summarised
as follows:
11.1    In
the early hours of 29 November 2014, the deceased, 27 year old Mr
Xavier Chirindza and two of his friends
encountered the appellant and
three of his friends in the street as they were walking home.
The appellant and his friends
recognised the deceased as a street
vendor who would probably have money on him and decided to rob him.
11.2
The appellant and his friends approached the deceased and his friends
and started talking to them.
When the appellant took out his
knife the deceased’s friends managed to run away from the
danger.
11.3
The deceased who was inebriated, was not so fortunate.  He was
quickly surrounded by the appellant and
his cohorts.  While the
appellant stabbed the deceased his three friends robbed the deceased
of R100, 00 in cash and his cellphone.
11.4
The deceased died shortly after the attack.  The forensic
pathologist who conducted the post-mortem
examination of the deceased
identified 16 stab wounds inflicted over the head and upper body of
the deceased, with the chest cavity
penetrated multiple times.
12.
The appellant was 27 years old at the time of sentencing.  At
that stage
he had already been in custody, awaiting trial, for 4
years.  He would therefore have been about 23 years of age when
the
offences were committed.  He worked as a farm labourer
before his arrest and earned R2500, 00 per month.  He is single

and does not have any children.  The appellant has 2 previous
convictions for housebreaking with intent to steal and theft

committed respectively during 2008 and 2012.
13.
During the sentencing proceedings the trial court requested a victim
impact
statement  to be compiled.  This statement emanated
from the girlfriend of the deceased, Ms M[...].  She stated that

she and the deceased had a son aged 2 years at the time of his
death.  The deceased who was a street vendor maintained her
and
their son.  After the death of the deceased she and their son
moved out of the shack she shared with the deceased as the
memories
were too painful.  She eventually moved back into the shack but
she still gets emotional when thinking about the
deceased.  What
hurts her most is that their son does not even remember his father
anymore.
Consideration of
sentence
14.
During argument before us Mr Fourie conceded that in instances of
serious crimes
where a long period of imprisonment is inevitable, the
personal circumstances of an offender recede into the background and
only
become relevant in considering whether he is capable of
rehabilitation (See
S v VilakaziI
2009 (1) SACR 552
SCA at
paragraph 58 thereof).
15.
In casu,
the appellant’s personal circumstances, despite
his relative youthfulness when the offences were committed, paint a
bleak
picture of his prospects for rehabilitation.  According to
my calculations he was 17 years old when he committed his first

offence of housebreaking with intent to steal and theft and 21 years
old when the second such offence was committed.  Within
two
years he had progressed to the current offences, showing no respect
for the life of another person in pursuit of his greed
for the
possessions of another.  This was a particular heinous crime –
an instance of what is termed “
overkill”
–
perpetrated against a completely defenceless person.  In my view
the trial court was correct in finding that there
were no substantial
and compelling circumstances present.
16.
In these circumstances an appropriate sentence for the murder charge
would have
been the maximum which the regional court could impose
i.e. 20 years imprisonment.  However the appellant had been in
custody
awaiting finalisation of his trial for an inexplicably long
period of 4 years.  In
Vilakazi
supra
(paragraph
16), it was held that it would be most unjust if the period in
custody awaiting trial is not brought into account when
imposing
sentence.  The sentence impose herein is intended to reflect
such consideration.
17.
With regard to the sentence of 15 years imprisonment imposed for the
robbery
with aggravating circumstances, Mr Fourie could not advance
any substantial and compelling circumstances applicable and quite
correctly
so, in my view.  The trial court ordered the sentence
in respect of the robbery with aggravating circumstance to be served

concurrently with that in respect of the murder charge.  In my
view the time spent awaiting trial is sufficiently ameliorated
by
such an order of concurrency.
The following order is
made:
a)
The appeal against sentence succeeds in part.
b)
The sentence imposed on the murder charge is set aside and
substituted with the following:
“
The accused
is sentenced to imprisonment for a period of 16 years.”
c)
The appeal against the sentence of 15 years imprisonment
imposed in respect of the robbery with aggravating circumstances
charge
is dismissed.
d)
The sentence in respect of the charge of robbery with
aggravating circumstanced is to be served concurrently with the
sentence in
respect of the murder charge.
e)
The sentences are antedated to 7 November 2018.
CC
WILLIAMS
JUDGE
I
concur
APS
NXUMALO
JUDGE
For
Appellant:
Mr
P Fourie
Legal
Aid SA
For
Respondent:
Adv
M Engelbrecht
Office
of the DPP