About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2024
>>
[2024] ZAKZPHC 78
|
|
Maphumulo and Another v S (AR307/2023) [2024] ZAKZPHC 78 (6 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
AR307/2023
In
the matter between:
SIBONGISENI
MAPHUMULO
FIRST APPELLANT
THOBANI
HUMPHREY MABASO
SECOND APPELLANT
and
THE
STATE
RESPONDENT
Coram
:
Balton J and Mossop J
Heard
:
30 August 2024
Delivered
:
6 September 2024
ORDER
On
appeal from:
Ntuzuma Regional Court (sitting as the court of
first instance):
1.
The appeal by both appellants against their
sentence is dismissed.
JUDGMENT
MOSSOP
J
(BALTON J concurring):
[1]
The appellants were charged in the Ntuzuma Regional Court with
murder and robbery with aggravating circumstances. They were legally
represented when they stood trial and pleaded not guilty to both
charges. Despite those pleas, both appellants were convicted as
charged. The regional court took both counts as one for the purpose
of sentence and imposed a sentence of life imprisonment on
both the
appellants.
[2]
As a consequence of that sentence, the appellants have an
automatic right of appeal in terms of the provisions of s
309(1)
(a)
of
the
Criminal Procedure Act 51 of 1977
. They have, however, chosen not
to appeal against their convictions but only to appeal the sentences
that were imposed upon them.
[3]
The facts of a matter obviously have some
influence on the sentence that is to be imposed. It is therefore
necessary to briefly
consider the facts that the regional magistrate
found to have been proven.
[4]
Mr Sabelo Nxumalo (the deceased) was a
driver of a Coca-Cola delivery truck (the vehicle) that was parked
outside a Shoprite store
in Dube Village, Inanda, KwaZulu-Natal on 18
June 2020 at around noon. His co-employee and companion that day was
Mr Welcome Khuzwayo
(Mr Khuzwayo), who, despite having a different
surname, was his biological brother. The deceased and Mr Khuzwayo
were there to
deliver cold drinks to the store.
[5]
Mr Khuzwayo entered the Shoprite store to
initiate that delivery while the deceased remained seated in the
vehicle behind the steering
wheel. Mr Khuzwayo testified that he
estimated that he was away from the vehicle for approximately five
minutes and when he returned
to it, he observed that both the driver
and passenger doors were standing open. He observed the deceased, who
was still seated
in the vehicle, trying to defend himself from being
stabbed with a knife on his left flank by the first appellant. The
knife had
a blade estimated by Mr Khuzwayo to be 30 cm long.
[6]
Mr Khuzwayo was on the passenger side of
the vehicle and moved to the driver’s side to assist the
deceased. As he did so,
he was threatened by two other men with
knives who were standing there. He identified the second appellant as
being one of those
two men. The second appellant had in his
possession Mr Khuzwayo’s Nike backpack, which had previously
been in the vehicle.
Mr Khuzwayo then saw the first appellant fleeing
from the passenger side of the vehicle with the deceased’s
cellular telephone.
The other two men followed suit and also fled.
[7]
Mr Khuzwayo stated that he was familiar
with the three men from previous trips to deliver cold drinks to the
Shoprite store when
he generally encountered them in that vicinity.
He did not know their names, but he recognised them, and they were
thus not total
strangers to him.
[8]
Six days after the murder of his brother,
on 24 June 2020, Mr Khuzwayo observed the three men involved in that
crime standing near
a set of traffic lights, close to a traffic
circle in Dube Village and alerted the South African Police Services
to their presence.
The investigating officer, Sergeant Mthethwa (the
investigating officer), hastened to the scene and Mr Khuzwayo pointed
out the
first appellant to him, who was then arrested. A knife was
found in his possession when he was arrested. Mr Khuzwayo testified
that the second appellant and the third man who participated in the
murder and robbery were also present. It is not clear,
however,
why they, too, were not arrested but it appears that Mr Khuzwayo did
not point them out to the investigating officer.
The second appellant
was arrested later in November of that year.
[9]
The investigating officer testified at the
appellants’ trial and confirmed that he had, indeed, arrested
the first appellant
as described by Mr Khuzwayo. He also stated that
he had recovered the deceased’s cellular telephone and Mr
Khuzwayo’s
backpack from two different persons on 26 June 2020.
The person who was found in possession of the deceased’s
cellular telephone
testified at the trial that the appellants had
sold it to him on the day that the deceased had died. Later, sometime
in July 2020,
Mr Khuzwayo confirmed that he was shown, and
identified, his backpack and the deceased’s cellular telephone.
[10]
The vehicle in which the deceased was
seated when he was slain was fitted with an internal video camera.
That camera generally recorded
what occurred in the cab of the
vehicle. It specifically recorded what had happened on that fateful
day. The video recording was
recovered by the investigating officer
and it was dispatched to the Forensic Sciences Laboratory for
analysis. Disgracefully, it
was never received back from that
institution and was consequently not introduced at the trial. The
resourceful investigating officer,
however, managed to observe the
video recording through the co-operation of Coca-Cola, who displayed
a copy of their version of
the video recording to him. The
investigating officer testified that from observing the video
recording, he was able to ascertain
that the first appellant was
wearing the very same clothing on the day of the murder that he had
on when he was arrested on 24
June 2020.
[11]
The post mortem performed on the body of
the deceased revealed that the cause of death was an incisional wound
to the chest that
passed into the deceased’s abdomen. The
diagram that the pathologist completed showed the penetrating wound
to be on the
deceased’s left flank, as Mr Khuzwayo had
observed. The thrust that caused that wound also caused an incision
to the deceased’s
left kidney.
[12]
The appellants advanced what can only be
termed a fanciful defence, namely that they were elsewhere but came
across the true culprits
who perpetrated the murder and robbery and
who offered to sell them the items robbed from the deceased and Mr
Khuzwayo. The evidence
against the appellants was overwhelming and,
in the view that I take of the matter, they were correctly convicted.
That appears
to be acknowledged by the appellants, for, as previously
stated, they do not attempt in this appeal to deny their guilt and
set
aside their respective convictions.
[13]
As regards the sentences imposed upon them,
the appellants submit that the regional magistrate ought to have
taken account of their
personal circumstances, but did not. The point
is made that insofar as the first appellant is concerned, he was 23
years old when
he committed the offences, had completed grade 11, had
a child who was five years’ old who he supported, was employed
as
a taxi conductor earning between R180 and R250 per week, had spent
two years in custody awaiting trial, had no previous convictions
and
had apparently accepted responsibility for his actions by apologising
to the deceased’s family. The second appellant’s
personal
circumstances were not totally dissimilar: he was 30 years old when
he committed the offences, also reached grade 11,
but he had three
minor children who he supported and had a job, the precise nature of
which was not disclosed, nor was his monthly
income. The same
allegation was made in respect of having assumed responsibility for
his conduct by apologising to the deceased’s
family for what
occurred. But it was also submitted that he had played a minimal role
in the murder in that he had not stabbed
the deceased.
[14]
Both appellants submitted that the regional
magistrate had not taken these personal factors into account and that
the sentence of
life imprisonment imposed upon them was shockingly
inappropriate in the circumstances.
[15]
An appeal court has very limited grounds
upon which it may interfere in the proceedings before a lower court
when considering sentence.
This is primarily because:
‘…
sentencing
is within the discretion of the trial court. An appellate court’s
power to interfere with sentences imposed by
courts below is
circumscribed. It can only do so where there has been an irregularity
that results in a failure of justice; the
court below misdirected
itself to such an extent that its decision on sentence is vitiated;
or the sentence is so disproportionate
or shocking that no reasonable
court could have imposed it.’
[1]
(Footnotes omitted.)
[16]
In
S
v Malgas,
[2]
the
court held that:
‘
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its
exercise of
that discretion, an appellate court is of course entitled to consider
the question of sentence afresh … However,
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”.’
[17]
The
trial court thus has a discretion when it comes to the imposition of
sentence. In
S
v
Hewitt
,
[3]
Maya
DP observed that:
‘
An
appellate court may not interfere with this discretion merely because
it would have imposed a different sentence. In other words,
it is not
enough to conclude that its own choice of penalty would have been an
appropriate penalty. Something more is required;
it must conclude
that its own choice of penalty is the appropriate penalty and that
the penalty chosen by the trial court is not.
Thus, the appellate
court must be satisfied that the trial court committed a misdirection
of such a nature, degree and seriousness
that shows that it did not
exercise its sentencing discretion at all or exercised it improperly
or unreasonably when imposing it.
So, interference is justified only
where there exists a “striking” or “startling”
or “disturbing”
disparity between the trial court's
sentence and that which the appellate court would have imposed.
And in such instances
the trial court's discretion is regarded as
having been unreasonably exercised.’ (Footnotes omitted.)
[18]
The appellants were clearly advised at the
commencement of their trial of the fact that, if convicted, they
faced a minimum sentence
of life imprisonment. They were advised that
the court would be obliged to impose that sentence upon them unless
there were substantial
and compelling circumstances that would
justify the imposition of a lesser sentence. They indicated that they
were aware of this.
The regional magistrate, indeed, then proceeded
to impose that minimum sentence upon the appellants after hearing all
the evidence,
finding that there were no substantial and compelling
circumstances to justify a deviation from the prescribed minimum
sentence.
[19]
The
much-referenced matter of
Malgas
is still the touchstone when it comes to the imposition of minimum
sentences prescribed by law.
In
that matter
,
the court observed that circumstances may be viewed as being
substantial and compelling without them being ‘exceptional’
in the sense of being seldom or rarely encountered.
[4]
The court held that the legislature, which conceptualised and passed
the legislation on minimum sentences, intended that such minimum
sentences would be imposed and would not be departed from lightly and
for flimsy reasons, which were unable to withstand scrutiny.
But the
court concluded that, in so legislating, there was nothing to
indicate that the legislature intended a court to exclude
from
consideration any or all of the many factors traditionally and
rightly taken into account by courts when sentencing offenders.
[5]
If such factors are present and are
persuasive
and weighty, they may necessitate the imposition of a lesser sentence
than the prescribed minimum sentence.
[20]
Those
traditional factors alluded to in
Malgas
,
which usually relate to the specific and unique facts pertaining to
the person to be sentenced, thus must still be considered
by the
court when imposing sentence. In
S
v Vilakazi
,
[6]
the Supreme Court of Appeal stated that:
‘
It
is clear from the terms in which the test was framed in
Malgas
and
endorsed in
Dodo
that it is incumbent upon a court
in every case, before it imposes a prescribed sentence, to assess,
upon a consideration
of all the circumstances of the particular case,
whether the prescribed sentence is indeed proportionate to the
particular offence.
The Constitutional Court made it clear that what
is meant by the “offence” in that context (and that is
the sense in
which I will use the term throughout this judgment
unless the context indicates otherwise) consists of all factors
relevant to
the nature and seriousness of the criminal act itself, as
well as all relevant personal and other circumstances relating to the
offender which could have a bearing on the seriousness of the offence
and the culpability of the offender.’ (Footnote omitted.)
[21]
The
approach that should be adopted in imposing sentence was set out in
S
v
Thonga
.
[7]
Etienne du Toit AJ said the following and I quote liberally from that
judgment:
‘
In
my view the punishment must firstly be reasonable, ie it should
reflect the degree of moral blameworthiness attaching to the
offender, as well as the degree of reprehensibleness or seriousness
of the offence. Punishment therefore should ideally be in keeping
with the particular offence and the specific offender. It is
necessary, secondly, for the punishment to clearly reflect the
balanced process of careful and objective consideration of all
relevant facts, mitigating and aggravating. The sentence should,
thirdly, reflect consistency, as far as is humanly possible, with
previous sentences imposed on similar offenders committing similar
offences, lest society should believe that justice was not seen to be
done. Lastly, the penal discretion is to be exercised afresh
in each
case, taking the facts of each case and the personality of each
offender into account. To all this I would add that
the trial Court
does not impose sentence
in
vacuo
. It,
to the contrary, certainly does so within a certain time frame and at
a certain stage in the development of the people(s)
of a district, or
a province, or a country, or even a continent. The criminal court is
also an instrument in the hands of society,
applying its laws,
reflecting its values and its moral indignation at unlawful conduct,
as well as the negative or harmful effect
thereof on third parties or
society itself. But in a civilised society punishment reflects also
the interests of the offender himself.
The trial court, in a criminal
matter then, functions not in a technical laboratory, but as a living
instrument, a vital component
of the fabric of society, serving the
interests of society and all of its law-abiding members. The criminal
court primarily seeks
to establish and maintain peaceful co-existence
among the members of society within a territory, offering protection
to life,
limb and property by dispensing criminal justice.
Furthermore, during the imposition of punishment, the trial court
jealously guards
the fine line between raw revenge or emotional
punishment and the judicial, reasonable and objectively balanced
(effective) exercise
of its penal discretion.
’
[22]
I have had regard to the approach that the
regional magistrate took when considering the appropriate sentence.
He approached the
matter patiently and sought all relevant
information before deciding on the appropriate sentence. Reports by a
probation officer,
Mrs R. M. Smith, were commissioned in respect of
both appellants, which were handed in with the consent of the
appellants’
legal representative. Those reports dealt
extensively, and almost exclusively, with the appellants’
personal circumstances.
Far from ignoring those personal
circumstances, the regional magistrate considered them thoroughly and
specifically mentioned them
in his judgment on sentence. He,
correctly in my view, did not regard the factors advanced by the
appellants as being substantial
and compelling. The only point of
significance raised by the appellants in this appeal consequently has
no basis in fact.
[23]
It was suggested in the appellant’s
heads of argument that the second appellant played a lesser role in
the crimes committed
and is accordingly entitled to receive a more
lenient sentence than the first appellant, who was the person who
actually stabbed
the deceased. That argument has no legal substance.
The State relied upon common purpose in framing its charge sheets.
Common purpose
was undoubtedly established, inter alia, in the
evidence of Mr Khuzwayo: the three men set out to commit the offence;
they were
all armed with knives; all played some part in achieving
their aims; and both appellants were subsequently actively involved
in
selling their ill-gotten gains. In those circumstances, there is
no basis for imposing a lesser sentence on the second appellant.
[24]
I am, in the circumstances, unable to
discern any misdirection that would constitute an invitation to us to
intervene in the proceedings.
It bears mentioning that counsel for
the appellants was unable to draw our attention to any actual
misdirection. The crime committed
was brutal and unnecessary. The
life of a human being is beyond value. It is the most precious thing
that a person can possess.
Depriving another of his right to life is
as serious a crime as can be committed. It is so that the first
appellant was a first
offender but the second appellant had, inter
alia, two previous convictions for theft. The first appellant’s
clean
criminal record must assume lesser importance when the
callousness of their collective conduct is considered. The sentences
imposed
upon each appellant does not induce a sense of shock in me.
It appears to me to be an appropriate sentence, given the enormity of
the crime that the appellants committed.
[25]
I accordingly would propose the following
order:
1.
The appeal by both appellants against their sentence is dismissed.
MOSSOP J
I agree and it is so
ordered:
BALTON J
APPEARANCES
Counsel
for the appellants:
Ms
Z Fareed
Instructed
by:
Legal
Aid South Africa
Durban
Local Office
The
Marine Building
22
Dorothy Nyembe Street
Durban
Counsel
for the respondent:
Ms
K Essack
Instructed
by:
Office
of the Director of Public Prosecutions
Serious
Commercial Crimes Unit Durban
[1]
S
v Bogaards
[2012]
ZACC 23
;
2013
(1) SACR 1
(CC)
para 41.
[2]
S v
Malgas
2001
(1) SACR 469
(SCA)
para 12 (‘
Malgas
’).
[3]
S
v Hewitt
[2016]
ZASCA 100
;
2017
(1) SACR 309
(SCA)
para 8; see also
S
v Rabie
1975
(4) SA 855
(A) at 860H-861A.
[4]
Malgas
para
10.
[5]
Ibid
para 25.
[6]
S
v Vilakazi
[2008]
ZASCA 87
;
2009
(1) SACR 552
(SCA)
para
15.
[7]
S v
Thonga
1993
(1) SACR 365
(V) at 370d-i.