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[2024] ZAECMKHC 85
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L.N v S (CA&R: 22/2024) [2024] ZAECMKHC 85 (12 August 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: CA&R: 22/2024
In
the matter between:
L[...]
N[...]
Appellant
and
THE
STATE
Respondent
APPEAL JUDGMENT
BANDS J:
[1]
In
accordance with the provisions of
section 112(2)
of the
Criminal
Procedure Act 51 of 1977
, the appellant, when appearing in the
District Court, East London, pleaded guilty to a charge of assault
with intent to do grievous
bodily harm. The appellant was convicted
on the strength of his plea and sentenced to a period of 18 months
imprisonment. It is
this sentence that he appeals against, with leave
of the trial court.
[2]
The
common cause facts, as gleaned from the appellant’s written
statement are uncomplicated. On 8 July 2023, the appellant,
following
his attendance at a funeral, made his way to an “
after
tears ceremony
”
[1]
hosted at Gxarha’s tavern. Whilst there, the complainant, who
was 42 years old, arrived in his vehicle with the appellant’
s
17
-year-old niece (“
the
minor
”
).
The appellant and his brother, the minor’s father, noticed the
complainant making advances towards the minor. The appellant
reprimanded the complainant, while the minor’s father took her
out of the vehicle and escorted her home. According to the
appellant,
the complainant “
did
not want to listen
”
to
him. As a result, he removed the complainant from his vehicle and
punched him twice in his face, causing him to fall to the ground.
He
thereafter kicked the complainant once in his head, with a booted
foot, and cautioned him to stay away from his niece. The appellant
left the scene.
[3]
According
to the appellant, in assaulting the complainant, he acted with the
intention of causing him grievous bodily harm. Insofar
as remorse is
concerned, the appellant states that he regrets his actions and that
he should have been more civilised. He further
implored the court to
consider his plea of guilty as a sign of his deep remorse.
[4]
The
appellant was 33 years old at the time of the commission of the
offence. His highest level of education is grade 11. He is the
father
of 2 minor children, born from 2 separate romantic relationships. His
children, who are the recipients of SASSA
[2]
child support grants, reside primarily with their unemployed mothers.
Prior to the appellant’s arrest, he performed odd jobs
as a
taxi driver, earning approximately R1,500.00 per month. It was
submitted from the bar, during the sentencing proceedings,
that his
earnings prior to his arrest were utilised for the support of his
children as well as for his own expenses. The appellant
has 2 prior
convictions. One of housebreaking with the intent to steal and theft,
from February 2006, for which he was sentenced
to 18 months
imprisonment, wholly suspended for a period of 5 years, and the other
for murder in April 2016. In respect of his
latter conviction, the
appellant was sentenced to 3 years’ correctional supervision
and a further 6 years’ imprisonment,
wholly suspended for a
period of 4 years on condition that he was not found guilty of the
same offence committed during the period
of suspension.
[5]
The
nub of the appellant’s grounds of appeal is that: (i) the
sentencing court overemphasised the seriousness of the offence
and
the interests of society, whilst attaching too little weight to the
personal circumstances of the appellant; (ii) the court
ignored the
provisions of section 28(2) of the Constitution in that the appellant
is the principal breadwinner of his minor children;
(iii) the court
erred in not finding that the appellant’s conduct arose out of
provocation by the complainant, which it ought
to have considered as
a mitigating factor; and (iv) the court overemphasised the
appellant’s previous convictions.
[6]
Whilst
the appellant, in his notice of appeal, contended that the trial
court ought to have imposed a non-custodial sentence, it
was properly
conceded, in argument before us, that a sentence of direct
imprisonment was appropriate, albeit that the appellant’s
counsel suggested a lesser term of 6 months.
[7]
Having
regard to the brief judgment of the trial court, it is not evident
that due consideration was given to all the factors relevant
to
sentencing when embarking on this often-onerous task. According to
the classic
Zinn
[3]
triad, a court is to impose sentences which strike an appropriate
balance between the seriousness of the offence; the personal
circumstances of the appellant; and the legitimate expectations and
legal interests of the community. In
S
v Banda and Others
,
[4]
Friedman
J, in discussing these factors, stated that:
“
The elements of
the triad contain an equilibrium and a tension. A court should, when
determining sentence, strive to accomplish
and arrive at a judicious
counterbalance between these elements in order to ensure that one
element is not unduly accentuated at
the expense of and to the
exclusion of the others. This is not merely a formula, nor a judicial
incantation, the mere stating whereof
satisfies the requirements.
What is necessary is that the Court shall consider, and try to
balance evenly, the nature and circumstances
of the offence, the
characteristics of the offender and his circumstances and the impact
of the crime on the community, its welfare
and concern.”
[8]
A
sentencing court is also required to give due consideration to the
four objectives of punishment in the assessment of an appropriate
sentence, these being, its deterrent, preventative, reformative and
retributive aspects.
[5]
[9]
The
trial court, in sentencing the appellant, took into account his
personal circumstances and obliquely makes reference to having
considered the facts relevant to the nature of the offence and the
extent of the complainant’s injuries. As to what facts
the
trial court considered is not clear. One is left with the impression
that this recordal was mechanical, in the way cautioned
against in
Banda
.
The trial court is further silent on the third leg of the
Zinn
triad. Accordingly, uncertainty exists as to what consideration, if
any, was given to the aforesaid elements. Mindful of this,
the
appellant’s contention that the trial court overemphasised the
seriousness of the offence and the interests of society
is misplaced.
[10]
The
above constitutes a material misdirection in that the trial court
failed to ensure a judicious counterbalance between the elements
relevant to sentencing. Put differently, the trial court did not
exercise its discretion properly and judicially, which entitles
this
court to consider the question of sentence afresh.
[6]
Whether or not the trial court’s misdirection will lead to an
interference with the sentence imposed is a separate enquiry.
[11]
I
have previously referred to the personal circumstances of the
appellant. He is not an immature youth and accordingly his age,
which
is a neutral factor, does not serve as a mitigating factor reducing
his moral blameworthiness.
[7]
The appellant’s argument that the trial court erred in failing
to consider section 28(2) of the Constitution, in that he
is the
minors’ principal breadwinner, is unsustainable for a number of
reasons, two of which I deal with below.
[12]
Firstly,
on a factual level, the trial court gave due consideration to the
fact that the appellant has two minor dependants. Secondly,
in
developing his Constitutional argument, the appellant’s counsel
sought to place reliance on the Constitutional Court’s
decision
in
S
v M.
[8]
The court in
S
v M
dealt
with the sentencing of primary caregivers and not the wider class of
breadwinners. This was expressly addressed by the court
in paragraph
[28] of its judgment as follows:
“
The
directions in this matter referred to sentencing of primary
caregivers, not to the wider class of breadwinners. Simply put,
a
primary caregiver is the person with whom the child lives and who
performs everyday tasks like ensuring that the child is fed
and
looked after and that the child attends school regularly. This is
consonant with the expressly protected right of a child to
parental
care under section 28(1)(b). We are accordingly not called upon in
this judgment to deal with delineating the duties of
the sentencing
court where the breadwinner is not also the primary caregiver.
Suffice it to say that, as in all matters concerning
children,
everything will depend on the facts of the particular case in which
the issue might arise.
”
[13]
Accordingly,
S
v M
is
not authority for the appellant’s proposition. Moreover, even
in the context of offenders who
are
primary
caregivers, which the appellant is not:
[9]
“…
a
court must sentence an offender, albeit a primary caregiver, to
prison if on the ordinary approach adopted in Zinn a
custodial sentence is the proper punishment. The children will weigh
as an independent factor to be placed on the sentencing scale
only if
there could be more than one appropriate sentence on
the Zinn approach, one of which is a non-custodial
sentence.
For the rest, the approach merely requires a sentencing
court to consider the situation of children when a custodial sentence
is
imposed and not to ignore them.
”
[14]
In
the circumstances of this case, particularly in light of the fact
that: (i) the court duly considered the minor children to the
extent
stated; (ii) the appellant is not their primary caregiver; and (iii)
it was conceded that a custodial sentence is appropriate,
I need not
say more on this aspect.
[15]
The
appellant’s reliance on provocation to serve as a ground for
the mitigation of his punishment is unsound – at best
he seeks
to draw an inference in this respect. In his statement, he does not
contend to have acted out of provocation nor does
he alleged to have
been provoked. Even if the content of his statement contained
sufficient particularity to conclude that his
aggressive conduct was
preceded by insulting or provocative behaviour (by word or by
conduct) on the part of the complainant, which
in my view it does
not, it cannot be said that there existed reasonable grounds for his
anger.
[10]
Quite clearly, the
complainant’s conduct was not of such a nature as to have
enraged the minor’s own father, who remained
calm in the
circumstances.
[16]
It
was argued on behalf of the appellant that the trial court
overemphasised the appellant’s previous convictions. I do not
agree. The appellant’s conviction of murder, being an offence
involving an element of violence, is of relevance and the trial
court
was correct to have regard thereto. The trial court can also not be
faulted for taking both prior convictions into account
to the limited
extent that it gave consideration to the nature of the prior
sentences imposed, and their reformative effect.
[17]
The
offence for which the appellant was convicted is of a serious nature
and bears a high degree of violence. Due to the assault
on him, the
complainant suffered from swelling of the periorbital region of the
left eye; subconjunctival bleeding of the left
eye; diffuse swelling
of the nasal bridge; chipped mandibular molars; and teeth marks to
the left lateral aspect of his tongue.
[18]
Society
is entitled to look to the courts for protection against violent
attacks. The sentence imposed should not only serve to
rehabilitate
an accused but should also seek to strike a balance between all four
objectives of punishment. This is crucial to
fostering confidence in
the criminal justice system.
[19]
Having
regard to the above, what remains to be considered is what to do with
the appellant’s sentence. On a conspectus of
the evidence
before the trial court, and notwithstanding the commission of a
material misdirection, I am of the view that the imposition
of 18
months direct imprisonment is appropriate, just, and proportionate.
Accordingly, the appeal cannot succeed.
[20]
In
the premises, the following order is issued:
1.
The
appeal is dismissed.
I
BANDS
JUDGE
OF THE HIGH COURT
M.W.
NOBATANA AJ:
I
agree.
pp
M.W.
NOBATANA
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the Appellant:
Mr
Sojada
Instructed
by:
Legal
Aid South Africa
For
the Respondent:
Ms
Phikiso
Office
of the Director of Public Prosecutions,
Eastern
Cape
Heard:
31
July 2024
Judgment:
12
August 2024
[1]
Often described as a get together held after a person’s
funeral to commemorate their legacy.
[2]
South
African Social Security Agency.
[3]
S v
Zinn
1969
(2) SA 537
(A) at 540G-H.
[4]
1991
(2) SA 352
(B) at 355A-B/C.
[5]
As
set out in
Director
of Public Prosecutions, KwaZulu-Natal v P
2006
(3) SA 515
(SCA).
[6]
S
v Mtungwa en ‘n ander
1990
(2) SACR 1
(A);
State
v
Romer
(412/10)
[2011]
ZASCA 46
(30
March 2011).
[7]
S
v Matyityi
2011
(1) SACR 40
(SCA) para 14.
[8]
2008
(3) SA 232 (CC).
[9]
S
v M
para
[39].
[10]
Van
Niekerk
1972
SALJ
169
at pp 173 and 174.