1
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
In the matter between
GABRIEL GOLIATH
And
THE STATE
VAN DEN BERG, AJ
JUDGMENT: 19 AUGUST 2024
CASE NO: A146/2024
DIVISION 7
APPELLANT
RESPONDENT
1. The appellant was found guilty of murder on 5 September 2023 and sentenced
to 16 years direct imprisonment by the Oudtshoorn Regional Court on 7
September 2023. He was represented throughout the trial. On 2 November
2023, the Court a quo refused the appellant's application for leave to appeal
against the conviction and sentence.
2
2. The appellant's petition in respect of the finding of guilt was dismissed on 9 May
2024 by Justice Fortuin and Justice Cloete, with leave granted only against the
sentence. The appeal before the Court concerns solely the imposed sentence.
3. The appellant contends that the Court a quo was incorrect in finding that no
substantial and compelling circumstances exist to deviate from the minimum
prescribed sentence. On appeal, it is submitted that the Court a quo did not
warn the appellant that it intended to impose a sentence higher than the
minimum prescribed sentence.
4. The main charge against the appellant read as follows:
"Murder (read with the provisions of section 51(1) plus (2), 52 of the
Criminal Law Amendment Act 105 of 1997), read with section 127 of Act
51 of 1977:
In that upon (or about) the 07.12.2017 and at (or near) REGGIE
OLIPHANT STREET OUDTSHOORN in the REGIONAL DIVISION OF
THE WESTERN CAPE, the accused did unlawfully and intentionally kill
BRANWILL MAY a male person, by STABBING WITH A KNIFE."
5. After the Court heard evidence regarding aggravating and mitigating
circumstances, the appellant was sentenced to sixteen (16) years
imprisonment, and in terms of section 103 of the Firearms Control Act 60 of
2000, he was declared unfit to possess a firearm.
3
THE CRIME
6. The appellant pleaded not guilty but admitted being responsible for the stabbing
and killing of the deceased. The appellant contended that he and the deceased
quarrelled and that he accidentally stabbed the deceased during their
altercation. The appellant alleged that the deceased had stabbed him. However,
no corroborating evidence was presented to substantiate any injuries sustained
by the appellant, nor were any injuries observed by the arresting police officers.
7. According to the medical evidence presented, the deceased's neck was cut,
and the throat displayed a 25 cm long wound. The depth and length of the
wound indicated that force was applied and that it was not self-inflicted.
8. The Court rejected the appellant's version that he turned the deceased's arm
and that the deceased accidentally cut himself. The Court a quo accepted that
it was not a premeditated murder but found the appellant guilty of murder on
the basis of do/us eventua/is.
THE APPELLANT'S PERSONAL CIRCUMSTANCES
9. The appellant was 26 years old at the date of the commission of the murder
and 32 years old at the time of being sentenced. He completed Grade 1 O and
was in a relationship for three (3) years at the time of his sentencing. He had
two (2) children aged 5 and 9 years old from a previous relationship. They
reside with him and his partner, due to the children's mother being a drug user.
4
Sadly, the appellant is the minor children's caregiver. He and the children reside
with his parents, and he was employed on a contract basis at the time of his
conviction with the Oudtshoom Municipality.
1 O. A prolonged time passed between the murder and the start of the trial due to
the case being withdrawn, then struck off the Court roll, and only proceeding to
trial in 2023.
11. The appellant has three (3) previous convictions, including a conviction of
assault for grievous bodily harm in 2007, for which he received a suspended
sentence. A second conviction for assault with the intention of causing grave
bodily harm in 2010, for which he was sentenced to 12 (twelve) months direct
imprisonment, of which six (6) months were suspended for five (5) years. In
2015, he paid an admission of guilt fine for trespassing.
12. The appellant was not found guilty of any other offences since his last offence
in 2015 up and until being convicted of murder.
THE DECEASED'S FAMILY AND CIRCUMSTANCES
13. The deceased was married and the father of two (2) minor children. Although
the family of the deceased is known to the appellant, the appellant has failed to
express his regret for causing the death of the deceased.
5
14. The evidence by both the deceased's mother and his wife highlighted the
irreparable tragic consequences of the deceased's untimely demise and the
effect thereof on their lives. The appellant never took responsibility for his
actions and stayed resolute in his account that he acted in self-defence.
15. The trauma and psychological impact the murder of the deceased had on the
families, including the minor children, cannot be understated. It is even more
tragic when one considers that the life of the deceased was erased after the
appellant and he quarrelled over a mere R20,00.
EVALUATION OF THE LAW REGARDING SENTENCING
16. The court must consider the seriousness of the offence, the personal
circumstances of the accused, and the interests of society when determining
the sentence. There must be compelling circumstances that warrant the
deviation from the prescribed sentence.1
17. In State v Kekana 2 The Supreme Court of Appeal held regarding the deviation
from minimum sentences that, as a general proposition, an accused who
wishes for a lesser sentence to be considered must set out the facts on which
such a conclusion can be premised.
2
State v Zinn 1969 (2) SA 537 (A) at 540G
2019 (1) SACR 1 (SCCA) at para 19
6
18. In the matter of State v SMM 2013 Vol. 2, SACR 292 SCA at paragraph 13 the
following was stated:
"It is also self-evident that sentence must always be individualised, for
punishment must always fit the crime, the criminal and the
circumstances of the case. It is equally important to remind ourselves
that sentencing should always be considered and passed
dispassionately, objectively and upon a careful consideration of all
relevant factors. Public sentiment cannot be ignored, but it can never be
permitted to displace the careful judgment and fine balancing that are
involved in arriving at an appropriate sentence. Courts must therefore
always strive to arrive at a sentence which is just and fair to both the
victim and the perpetrator, has regard to the nature of the crime and
takes account of the interests of society. Sentencing involves a very high
degree of responsibility which should be carried out with equanimity."
19. Lastly, in State v. Nkomo 2007 (2) SACR 198 SCA, the Court reaffirmed:
"In Ma/gas, however, it was held that in determining whether there are
substantial and compelling circumstances, a court must be conscious
that the Legislature has ordained a sentence that should ordinarily be
imposed for the crime specified, and that there should be truly convincing
reasons for a different response."
7
REGARDING THE PROPORTIONALITY OF THE SENTENCE IMPOSED
20. Sentencing is inherently within the discretion of a trial court. This Court's
powers to interfere with the trial court's discretion in imposing sentence
are limited unless the trial court's discretion was exercised wrongly. The
essential enquiry in an appeal against a sentence is not whether the
sentence was right or wrong, but whether the court exercised its discretion
properly and judicially. There must be either a material misdirection by the
trial court or a gross disparity between the sentence which the appeal court
would have imposed had it been the trial court. This Court can interfere
with a trial court's sentence in a case where the sentence imposed was
disturbingly inappropriate3.
21. At the conclusion of the sentencing proceedings, the prosecutor asked: " ... that
the Court impose the prescribed minimum sentence of 15 years
imprisonment."4. The Office of the Director of Public Prosecutions submitted
that the appeal against the sentence should succeed and a term of fifteen years
imprisonment be imposed.
22. The appellant has shown no real or true remorse, and although he is young, he
was not a child or even a youth at the time of committing the murder. The Court
a quo highlighted the circumstances throughout why a deviation for a sentence
less than the prescribed minimum of 15 years was not justified.
3
4
S v Salzwedel and others 1999 (2) SACR 586 at 588A-B [also reported at [1999]
JOL 5809 (A); [2000] 1 All SA 229 (A)
Record of proceedings pp326, lin 14 to 19
8
23. However, neither the State nor the appellant's representatives presented
evidence or argued circumstances why the increased jurisdiction was justified
in sentencing the appellant to 16 years.
24. There are no substantial and compelling circumstances which may
cumulatively justify a departure from the sentence prescribed by the Act.5 The
Court a quo's finding regarding the objectives of the sentence, including
reformation, rehabilitation, prevention, and deterrence; was correctly
considered by not deviating from imposing the prescribed minimum sentence.
25. However, the Court a quo did not allude to the possibility of imposing a sentence
higher than the minimum pres~ribed sentence prior to giving judgment in
sentencing the appellant. The prosecution did not ask for a longer period of
imprisonment, while the appellant's representative attempted to persuade the
Court to deviate from the minimum sentence.
26. The prescribed minimum sentence of 15 years undoubtedly reflects a
comprehensive, correct and careful balance between the personal
circumstances of the appellant, the seriousness of the offence and the interest
of the victim's family and community. No amount of sentence will bring the life
of the deceased back. The appellant should be confronted with the
consequences of his crime and receive a sentence that will deter other people
from committing similar offences.
5 S v Malgas 2001 (1) SACR 469 (SCA) para 25
9
27. There is no gross disparity between the sentence which the appeal court
would have imposed had it been the trial court and that imposed by the
Court a quo . The sentence is not disturbingly inappropriate. However , the
fact that the appellant was not given an opportunity to present a case
regarding the imposition of a longer imprisonment term leaves one with a
sense of unease. It transgresses the right to procedural fairness, and for
this reason alone, the appeal should succeed.
28. In the result, the following order is proposed:
[1] The appeal against the sentence is upheld.
[2] The sentence imposed by the trial Court is set aside and substituted with
the following sentence:
(a) The appellant is sentenced to undergo fifteen (15) years
imprisonment.
[3J The sentence is ante-dated to 7 September 2023.
Acting Judge of the High Court, Cape Town
I agree, and it is so ordered.
FRANCIS, J
igh Court, Cape Town