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2025
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[2025] ZANCHC 55
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Kock v S (KS 18/2024) [2025] ZANCHC 55 (13 June 2025)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case number: KS 18/2024
Reportable: YES /
NO
Circulate to Judges: YES
/ NO
Circulate to Regional
Magistrates: YES / NO
Circulate to Magistrates:
YES / NO
In
the matter between:
ANDY
CHRISTOPHER KOCK
APPLICANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Kock v
The State
(KS 18/2024) 12 June 2025
Coram:
Stanton
J
Heard:
12 June 2025
Delivered:
13 June 2025
Summary:
Application
for leave to appeal – sentence of life imprisonment –
murder read with the provisions of
s 51(1)
of the
Criminal
Law Amendment Act
105 of 1997
, as amended,
read with
s 1
of the
Domestic Violence Act 116 of 1998
–
whether the trial court under-emphasised the personal circumstances
of the applicant – first time offender and a
plea of guilty –
whether the trial court over-emphasised the seriousness of the crime
-
applicant’s
case is arguable - reasonable prospects of success.
ORDER
1.
The
application for condonation is granted;
2.
Leave is
granted to the applicant to appeal to the Full Court of the Northern
Cape
Division against the life sentence imposed in respect of counts three
and four.
Stanton
J
JUDGMENT
Introduction:
[1]
The applicant stood accused of the following four offences:-
1.1
Count 1 -
assault
with the intent to do grievous bodily harm;
1.2
C
ount 2 -
assault
with the intent to do grievous bodily harm;
1.3
Count 3 - assault with the intent to do grievous bodily harm;
and
1.4
Count 4 - murder read with the provisions of
s 51(1)
of the
Criminal
Law
Amendment Act
105 of 1997
, as amended (“the CLAA”),
read
with s 1 of the Domestic
Violence Act 116 of 1998 (“the
Domestic Violence Act&rdquo
;).
[2]
The applicant pleaded guilty to the four counts proffered against
him, and he was accordingly
found guilty on all four counts.
[3]
Prior to sentencing, Mr Nel, on behalf of the applicant, conceded
that the count of the murder falls
within the provisions of
s 51(1)
of the CLAA for the following two reasons:
3.1
The murder was committed with premeditation; and
3.2
The death of the
deceased resulted from physical abuse or sexual abuse, as
contemplated in paragraphs (
a
) and (
b
) of
the definition of “domestic violence” in
s 1
of
the
Domestic Violence Act by
the applicant who was in a domestic
relationship with the deceased.
[4]
The applicant’s conviction in respect of the count of murder
therefore
carried
a prescribed
minimum
sentence of imprisonment for life, in the absence of substantial and
compelling circumstances for the imposition of a lesser
sentence as
provided for in
s 51(3)(a)
of the CLAA. Mr Nel requested that the
sentences in respect of counts 3 and 4 should be taken together for
purposes of sentencing.
I agreed as the evidence showed that these
two offences are inextricably linked in terms of locality, time,
protagonist and common
intent.
[5]
The following relevant applicable case law was considered before
imposing sentence:
5.1
P
unishment
must fit the criminal, as well as the crime, be fair to society
and
be blended with a measure of mercy; and
5.2
When
sentencing an accused, a court is required to consider the four
objectives
of punishment (deterrence, prevention, rehabilitation and
retribution)
in view of the triad of factors as set out in
S
v
Zinn.
[1]
The
triad of factors being:
(a)
the personal circumstances of
the
offender, including his character, conduct in life and personality,
and everything that influenced the commission of the offence;
(b)
the nature and seriousness of the offence committed; and
(c)
the interests of the community, including the necessity for a level
of uniformity in sentencing
.
[6]
On 08 November 2024, the following sentences were imposed:
6.1
In
respect of count 1 (
assault with the intent to do
grievous bodily harm):
12
months’ imprisonment;
6.2
In
respect of count 2 (a
ssault with the intent to do
grievous bodily harm):
6
months’ imprisonment; and
6.3
In respect of both count 3 (assault with the intent to do
grievous bodily
harm) and count 4 (murder
read with the provisions of
s 51(1)
of the CLAA, read with
s 1
of the
Domestic Violence Act: life
imprisonment;
[7]
An order was made that the sentences shall run concurrently; and the
applicant was declared unfit
to possess a firearm.
Application
for leave to appeal:
[8]
On 24 January 2025, the applicant filed an
application for leave to appeal against the sentences of
life imposed
in respect of counts 3 and 4. In addition, the applicant filed an
application for the condonation of the late filing
of the application
for leave to appeal.
Grounds
of appeal:
[9]
The following grounds of appeal were listed, namely that I erred in:-
9
.1
Finding that the applicant did not show true remorse, and therefore
under-emphasised that he indicated
his remorse in his plea statement,
which statement was accepted by the respondent;
9.2
Not considering and/or under-emphasising the role alcohol played in
the commission of the offences;
9.3
Under-emphasising the fact that the applicant is a first offender;
9.4
Under-emphasising the attempt made by the applicant to address his
anger management issues;
9.5
Under-emphasising the fact that the applicant pleaded guilty on the
charges and played open cards
with the court;
9.6
Over-emphasising the seriousness of the murder count as well as the
interest of the community
and under-emphasising the favourable
personal circumstances of the applicant;
9.7
Not finding that the personal circumstances, together with the
factors mentioned in paragraphs
9.1 to 9.6 above, cumulatively
presented substantial and compelling circumstances that justify the
imposition of a lesser sentence
than the prescribed minimum sentence
in respect of counts 3 and 4; and
9.8
Imposing a sentence, which is shockingly harsh and inappropriate in
the circumstances.
Ad
condonation:-
[10]
The applicant, in his application for condonation,
explained that the delay in the filing of the application
for leave
to appeal was occasioned by the delay in obtaining the transcription
of the record.
[11]
From the founding affidavit, it is evident that the applicant took
all prudent and reasonable steps to obtain
the copy of the
transcribed record without delay. Furthermore, the respondent does
not oppose the application for condonation.
Applicable
law:
[12]
Section 17
of the
Superior Courts Act 10 of
2013
provides:
‘
17.
Leave to appeal
(1)
Leave to appeal may only
be given where the judge or judges concerned are of the opinion
that—
(a)(i)
the appeal would have a reasonable prospect of
success; or
(ii)
there is some other compelling reason why the appeal should
be
heard, including conflicting judgments on the matter under
consideration;’
[13]
In
S
v Smith
,
[2]
Plasket
AJA stated:-
‘
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the
appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote, but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of
success, that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be
a sound, rational basis for
the conclusion that there are prospects of success on appeal.’
Arguments
by counsel:
[14]
Mr Nel conceded that this Court did not misdirect itself in its
application of the law and that it had considered
all the relevant
facts, but he submitted that the personal circumstances of the
applicant, namely:
(a)
his consumption of alcohol;
(b)
his
attempts to manage his anger;
(c)
him being a first time
offender;
(d)
that he pleaded guilty; and
(e)
that he
showed remorse, if considered cumulatively, amount to substantial and
compelling reasons to deviate from the prescribed
sentence of life
imprisonment, which is shockingly harsh and inappropriate in the
circumstances.
[15]
Mr Makhaga, on behalf of the state, with reference to
S
v Rabie
,
[3]
countered that the application for leave to appeal should be
dismissed as this Court exercised its discretion judicially, and
there is no probability that another court would come to a different
conclusion on the facts.
Conclusion:
[16]
I
fully embrace the convictions of our Supreme Court of Appeal as
inter
alia
set
out in
S
v Matyityi
[4]
and
S
v Malgas
[5]
to the effect that minimum sentences have been ordained by the
legislature and should be imposed, unless there are truly convincing
reasons for departing from them.
[17]
Having said this, I am of the view that another court, acting
reasonably, may find that life imprisonment
is not warranted in
view of the fact that the applicant was a first offender and that he
pleaded guilty to the charges.
[18]
Consequently, I am persuaded that the applicant’s case is
arguable and that
there
are reasonable prospects of success.
[19]
It is not necessary to refer the matter to the Supreme Court of
Appeal and leave should therefore be granted
to the Full Court of the
Northern Cape Division.
Order
Therefore,
the following orders are made:
1.
The
application for condonation is granted;
2.
Leave is
granted to the applicant to appeal to the Full Court of the Northern
Cape Division against the life sentence imposed in
respect of counts
three and four.
A
STANTON
JUDGE
On
behalf of the applicant:
Adv
IJ Nel
On
instruction of:
CM
de Bruyn and Partners
On
behalf of the respondent:
Adv
R Makhaga
On
instruction of:
The
DPP Northern Cape
[1]
1969
(2) SA 537
(A).
[2]
2012
(1) SACR SCA 667 at para 7.
[3]
1979
(4) SA 855
(A) at 857.
[4]
2011
(1) SACR 40
(SCA)
at para 23.
[5]
2001
(1) SACR 469
(SCA).