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[2024] ZAKZPHC 102
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Mthembu v S (AR139/2023) [2024] ZAKZPHC 102 (18 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO: AR139/2023
In the matter between:
MLUNGISI
GOODMAN SOSHA MTHEMBU
Appellant
and
THE
STATE
Respondent
ORDER
On appeal from
:
the High Court of South Africa, KwaZulu-Natal North Eastern Circuit
Local Division, Mtunzini (Chili J, with an assessor presiding):
1.
The appeal against the sentence of 25 years imposed for Murder (Count
1) is upheld;
2.
That sentence is set aside and replaced with a sentence of 20 years
imprisonment;
3.
The sentence of 5 years imprisonment on count 2 is confirmed with
that sentence to run concurrently
with that imposed on count 1.
4.
The sentences are ante-dated to 3 May 2021.
JUDGMENT
Henriques J (E
Bezuidenhout J and Mchunu AJ concurring):
Introduction
[1]
This is an appeal against the effective
sentence of 25 years’ imprisonment imposed by the high court in
respect of the convictions
for murder and theft of a motor vehicle
handed down on 3 May 2021.
[2]
The appellant was indicted on two counts in the
North Eastern Circuit Local Division, Mtunzini. Count 1 as
reflected in the
charge sheet was murder read with the relevant
provisions of s 51 and Schedule 2 of the Criminal Law Amendment Act
105 of 1997
(‘the Act’), in that the appellant was
alleged to have killed Tholokele Maureen Sithole (‘the
deceased’)
on 13 or 14 January 2019 in circumstances where the
murder of the deceased was planned or premeditated. Count 2 related
to the
theft of the deceased’s Renault Sandero motor vehicle.
Grounds
of appeal
[3]
The appellant advances two main grounds of
appeal. In respect of the first ground of appeal, he submits that the
court
a quo
erred
in imposing a sentence of 25 years’ imprisonment in respect of
the murder count in light of the fact that the minimum
prescribed
sentence of 15 years’ imprisonment was applicable given the
trial court’s finding that the murder was not
premeditated.
[4]
Although the appellant concedes that the court
a quo
had
unlimited sentencing jurisdiction, the appellant submits that the
court
a quo
misdirected
itself in not finding substantial and compelling circumstances to
have existed given that this was a crime of passion
and the court did
not properly consider the appellant’s personal circumstances,
especially that he was a first offender.
[5]
The court committed a misdirection in that s
51(2) of the Act provides for a sentence of 15 years’
imprisonment for first
offenders convicted of murder and there is
nothing in the judgment of the court
a
quo
, which justified a marked
deviation of ten years from the prescribed minimum of 15 years
imprisonment to 25 years. No grounds of
appeal are advanced in
relation to count 2, save that it was appropriate for the court
a
quo
to order the sentences to run
concurrently.
Submissions
[6]
At
the hearing of the matter,
Mr
Thengwa
, who appeared for the
appellant, submitted that the sentence imposed by the court
a
quo
does not reflect an element of
mercy nor does it give proper recognition to the fact that this was a
crime of passion. He submitted
that the court
a
quo
overemphasised the aggravating
circumstances surrounding the commission of the offence and made no
mention of the fact it was a
crime of ‘passion’.
[7]
Mr
Magwaza
,
for the respondent acknowledged that the court
a
quo,
when sentencing the appellant,
was greatly influenced by the aggravating features of the matter. He
further acknowledged that although
the court
a
quo
also accepted that this was a
crime of passion, it did not, when sentencing the appellant, indicate
why it still was of the view
that a sentence of 25 years’
imprisonment was justified.
Background
facts
[8]
The appellant, who was legally represented at
the time, pleaded not guilty to both counts. In amplification of his
plea, he prepared
a detailed written statement, referred to by the
court
a quo
as
a ‘thesis’ in which he detailed the circumstances under
which the deceased met with her untimely death. In summary,
he
indicated that they were in a love relationship and he discovered
that she had been unfaithful.
[9]
When he discovered this, he confronted the
deceased and they argued. Sometime later, whilst at the
deceased’s house,
he was in the bedroom and the deceased in the
kitchen when she called out to him and asked for his assistance
having accidentally
dropped hot water on herself. He poured cold
water over her. As he did that she took hold of and squeezed his
genitalia as to inflict
pain on him. They tussled as a consequence.
[10]
During the course of this tussle, he put his
hands around the neck and began throttling her. She lost
consciousness and when she
regained consciousness she cried out the
word ‘clinic’ indicating by that that she needed medical
attention. They left
the deceased’s home with him driving her
vehicle so as to obtain medical assistance. The deceased, who was
seated in the
front passenger seat of the vehicle, slumped over after
a short while and hit her head on the dashboard. It was then
that
he noticed that she was no longer breathing.
[11]
He panicked and drove to his home where he
covered her and left her seated in a slumped position on the back
seat. He remained seated
in the car for a while. He subsequently
drove around and returned home with the body of the deceased and
transferred it into boot
of the vehicle. He attempted to solicit the
assistance of his friend Andile Mahaye (Mr Mahaye) to help him
dispose of the body
of the deceased to no avail. The body of
the deceased remained in the boot of the vehicle. A few days later,
he drove to
a sugar cane field in the Nyoni area where he discarded
the body of the deceased.
[12]
The respondent did not accept the facts as
contained in the appellants written plea explanation and presented
evidence to the contrary.
In essence, the evidence presented was from
Mr Mahaye who testified in terms of
s 204
of the
Criminal Procedure
Act 51 of 1977
and who painted a different version of events. It
emanated from his evidence the appellant had reported to him that the
deceased
and the appellant had an altercation on the night of her
death during which he strangled the deceased with a cord from a
kettle.
He thereafter attempted to enlist the assistance of Mr Mahaye
to dispose of the body of the deceased but Mr Mahaye avoided the
appellant for a number of days. Eventually, Mr Mahaye relented and
assisted the appellant to dispose of the body of the deceased
in the
sugar cane field.
[13]
Mr Mahaye’s evidence was corroborated by
that of Ms Natalie Linda (Ms Linda), a traditional healer, who
confirmed his explanation
as regards the circumstances under which
the deceased met her untimely death, but she also shed light on the
fact that she performed
a ritual cleansing on Mr Mahaye, the
appellant and the appellant’s daughter shortly after the body
of the deceased had been
disposed of. In addition, she accompanied
the appellant to Mr Malcolm Naidoo on the day the appellant attempted
to sell the deceased’s
motor vehicle. She subsequently
confirmed that after they had disposed of the car of the deceased,
both of them returned home separately.
She subsequently learnt of the
appellant’s arrest.
[14]
An application for the discharge of the
appellant in terms of
s 174
of the
Criminal Procedure Act was
refused. The appellant testified and called no witnesses. His
evidence in essence confirmed the contents of his written plea
explanation
and discounted the version of the respondent’s
witnesses where their evidence did not align with the contents of his
plea
explanation.
The
judgment of the court a quo
[15]
When convicting the appellant the judgment of
the court concluded as follows:
‘
The
accused is according found
GUILTY AS
CHARGED OF MURDER
of Tholakele
Sithole
COUNT 1
.
The accused is also found
GUILTY AS
CHARGED ON COUNT 2
theft of a motor
vehicle belonging to the deceased Tholakele Maureen Sithole
.’
[16]
During the sentencing phase of the proceedings,
the legal representatives presented argument as to whether the murder
was planned
or premeditated and thus whether life imprisonment
applied. This was done at the request of the court. One is not
certain why this
was done at this stage of the proceedings given the
finding referred to in paragraph 15 above.
[17]
The appellant’s legal representative
submitted that in the absence of premeditation, the maximum sentence
applicable would
be that of 15 years imprisonment as the offence fell
within the parameters of
s 51(2)
, and
Part II
of Schedule 2 of the
Act. The respondent’s representative submitted that the murder
was premeditated but argued in the alternative,
that if the court
agreed with the appellant’s legal representative that the
maximum sentence was 15 years imprisonment, the
court ought to
deviate upwards from such sentence given the aggravating
circumstances which prevailed.
[18]
There appeared to be confusion with the
sentencing jurisdiction of the high court compared with that of the
regional court in relation
to the applicable sentence for murder in
circumstances where same was not premeditated.
[19]
When sentencing the appellant, the court
a
quo
was of the view that the
respondent had not established that the murder of the deceased was
premeditated and hence the prescribed
minimum sentence of life was
not applicable. It held as follows:
‘
There
is no evidence to suggest that he either planned or premeditated the
killing of the deceased. All evidence points in one direction
only:
that the ultimate killing of the deceased was a result of a prolonged
heated argument between the deceased and the accused.
I am therefore
not persuaded that it was sufficiently established that the killing
of the deceased was premeditated.
’
[20]
The court
a quo
expressed the view that the evidence suggested that the deceased’s
persistent denial that she was cheating on the appellant
in the face
of proof is what infuriated him and the ‘killing of the
deceased was as a result of a prolonged heated argument
’
.
[21]
When sentencing the appellant the court
a
quo
was alive to the fact that the
prescribed minimum sentence was 15 years’ imprisonment and that
it had to consider whether
substantial and compelling circumstances
existed warranting a deviation from the prescribed minimum sentence
if it found such to
exist. The court
a
quo
considered the appellant’s
personal circumstances, and found favour with the fact that the
appellant was a first offender
and faced no pending charges. An
aggravating feature, which weighed heavily with the court, was the
fact that the offence was a
serious one (murder) and that the
appellant had killed his lover and the mother of his child.
[22]
It relied heavily on the evidence of Ms Linda
that the appellant had reported to her that he had unsuccessfully
tried to kill the
deceased twice by strangling her with the cord. The
events, which occurred in relation to the disposal of the body of the
deceased
was also a factor, which weighed heavily with the court.
[23]
Having considered all the factors cumulatively
the court
a quo
remained
unpersuaded that there were substantial and compelling circumstances
warranting the imposition of a lesser sentence than
that prescribed
by law. In fact, the court
a quo
was
of the view that the aggravating circumstances warranted the
imposition of a sentence in excess of that prescribed by the minimum
sentencing legislation. It remarked:
‘
Instead,
I hold the view that there exists aggravating circumstances that
warrant imposition of a sentence in excess of that prescribed
by
law.
’
[24]
The court appeared to draw an analogy with s
51(2) of the Act, which empowers a regional court to increase the
sentence by no more
than five years, if circumstances permit. It
held:
‘
Section
51(2)
of the
Criminal Law Amendment Act, 105 of 1997
, entitled the
Court to impose a higher sentence than that prescribed by law in
given circumstances. It specifically confines the
Regional Court,
not
the High Court,
to increase sentence
by no more than five years if circumstances permit.’ (emphasis
in original)
This
appears to be the reason why it sentenced the appellant to 25 years’
imprisonment on count 1 and 5 years’ imprisonment
on count 2,
directing the sentences to run concurrently.
Analysis
[25]
The
powers of an appellate court to interfere with the sentence imposed
by a lower court are circumscribed. This is consistent with
the
principle that the imposition of an appropriate sentence resides
pre-eminently within the discretion of the trial court. The
appellate
court may interfere with the sentence imposed in circumstances where
there are material misdirections, which vitiate
the exercise of its
discretion and an appellate court is then entitled to consider the
question of sentence afresh. In the absence
of a material
misdirection, the appellate court may interfere with the sentence
imposed if the disparity between the sentence of
the trial court and
the sentence which the appellate court would have imposed is so
marked that it can be described as shockingly,
startlingly or
disturbingly inappropriate.
[1]
[26]
Our
courts have taken to impose heavy sentences on accused persons in
circumstances where the deceased is the victim of domestic
abuse or
violence. Courts have emphasised that they have an obligation
to impose appropriate sentences in circumstances where
violent crimes
are committed especially by men against women as domestic violence
has become pervasive and endemic.
[2]
[27]
Marais
JA in
S
v Roberts
[3]
said
the following:
‘
It
[the sentence] fails utterly to reflect the gravity of the crime and
to take account of the prevalence of domestic violence in South
Africa. It ignores the need for the courts to be seen to be ready to
impose direct imprisonment for crimes of this kind, lest others
be
misled into believing that they run no real risk of imprisonment if
they inflict physical violence upon those with whom they
may have
intimate personal relationships.
’
[28]
The appellant’s personal circumstances in
my view are not out of the ordinary. I accept that he is a
first offender
and that the circumstances under which he found
himself when he committed the offence do evoke a measure of sympathy.
His trust
in the deceased was utterly shattered as a consequence of
her unfaithfulness. Mr Mahaye testified that they both found the
deceased
with her lover in compromising circumstances. I accept that
the appellant was emotionally distressed by the conduct of the
deceased
and in all likelihood felt seriously betrayed by her.
However, whatever sympathy one may have for him, that should not
unduly influence
an objective and dispassionate consideration of an
appropriate sentence.
[29]
The court
a quo
accepted that the prescribed minimum
sentence was that of 15 years given that the murder was not
premeditated. It found no substantial
and compelling circumstances
warranting a deviation from imposing such sentence. What it did was
deviate from imposing the prescribed
minimum sentence but upwards.
[30]
Whilst I acknowledge that there is no limit to the sentencing
jurisdiction
of the high court, what is not evident from the judgment
of the court
a quo
are the aggravating circumstances it found
to exist warranting a deviation from the prescribed minimum sentence
of 15 years, save
for the following:
‘
The
conduct of the accused amounted to a gross disregard of human life.
He dumped the body of the deceased as if he was disposing
of trash.
He subjected the body of the deceased to scavengers and that, in my
view, is despicable.’
[
]
I
accept that the conduct of the appellant was not excusable but given
the failure of the court a quo to deal with the aggravating
circumstances which warranted the imposition of the sentence imposed,
we are of the view the court
a quo
committed a misdirection, and we are
at large to impose sentence afresh. It warrants mentioning that
given the facts presented
by the respondent’s witnesses and the
court’s rejection of the appellant’s version, it is not
clear why the court
found the murder to not have been premeditated.
The evidence of Ms Linda and Mr Mahaye was unchallenged that the
appellant attempted
to strangle the deceased on two occasions with a
cord and that he had time to ‘cool down’ from the time he
and Mr Mahaye
observed her with her lover earlier on during the day.
Order
[31]
In the result the following order will issue:
1.
The appeal against the sentence of 25 years imposed for Murder (Count
1) is upheld;
2.
That sentence is set aside and replaced with a sentence of 20 years
imprisonment;
3.
The sentence of 5 years imprisonment on count 2 is confirmed with
that sentence to
run concurrently with that imposed on count 1.
4.
The sentences are ante-dated to 3 May 2021.
HENRIQUES
J
CASE
INFORMATION
Date
of Hearing:
14
June 2024
Date
of Judgment:
18
September 2024
For
Appellant:
Mr
Thengwa
Legal
Aid
The
Marine Building
22
Dorothy Nyembe Street
Durban
Email:
MzothandoT@legal-aid.co.za
For
Respondent:
Mr D
S Magwaza
Instructed
by:
DPP
286
Pietermaritz Street
Pietermaritzburg
Tel:
033 845 4485
Email:
Dmagwaza@npa.gov.za
[1]
S v
Malgas
[2001] ZASCA 30
;
2001 (1) SACR 469
para 12;
Director
of Public Prosecutions v Mngoma
[2009] ZASCA 170
;
2010
(1) SACR 427
(SCA) para 11.
[2]
Mudau v
S
[2014] ZASCA 43
para 6,
Maila
v The State
[2023]
ZASCA 3
paras 59-60.
[3]
S
v Roberts
2000
(2) SACR 522
(SCA) para 20.