REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Num ber: A385/2017
REPORTABLE :YES I@ (1)
(2)
(3)
OF INTEREST T~THER JUDGES : YES/NO
R EVISED : YES/@' ....
(i;,141 fZ-DZ-5 __ ~------
DA°fE SIGNATURE
In the matter between:
LEHLOHONOLOJAMESHEELA
vs
THE STATE
JUDGMENT
MA TLA PENG , AJ (Kooverjie J concurring)
f ntroduction
Ap plicant
Respondent
[1] The applicant in this matter was convicted in the Regional Court sitting at
Fochville on a count of murder. The State relied in the provisions of section 51
( 1) of the Criminal Law Amendment Act 1 05 of 1997 hereinafter for convenience
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referred to as the Minimum Sentence Act in terms of which a sentence of life
imprisonment is prescribed as the murder was preplanned unless the trial court
finds that there are substantial and compelling circumstances justifying it to
impose a lesser sentence.
[2] The learned Regional Magistrate in this matter found no substantial and
compelling circumstances and sentenced the appellant to life imprisonment. The
appellant has an automatic right of appeal in terms of section 309 (1) of the
Criminal Procedure Act 51 of 1977.
[3] The appellant was legally represented during the trial and pleaded not guilty to
the charge but not withstanding his denial of the charge he was convicted as
charged and sentenced to the prescribed sentence of life imprisonment.
[4] The appellant is now lodging an appeal against both conviction and sentence.
[5] The facts that led to the conviction of the appellant are briefly as follows; On the
night of the 2nd June 2016, the two state witnesses, the accused and the
deceased were residing in the same area. The accused started looking for a knife.
When it was enquired why he wanted a knife he replied that he wanted to stab
the deceased who was asleep in his room at the time.
[6] It is the first state witness' testimony that the appellant ultimately found the knife
in a locker, he was reprimanded. The appellant went to the deceased's room, and
kicked the door open. The deceased fled from his room. The appellant pursued
him. The witness followed them and found the deceased on the ground facing
upwards, with the appellant on top of him stabbing him with a knife.
[7] The second state witness' evidence is that his room is next to that of the
deceased. The deceased went to sleep on the night in question, sometime
thereafter this witness heard a sound as if a door was being kicked. He heard the
deceased calling him, but he did not respond. After about 15 to 20 minutes the
appellant arrived at the witness' room. He was in possession of a knife and
appellant arrived at the witness' room. He was in possession of a knife and
demanded that the witness should open the burglar door because he wanted to
kill him. The burglar door was locked at the time. It is this witness's testimony that
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the appellant's hands had blood stains. The police arrived and hereafter arrested
him.
[8] The appellant's version is that he stabbed the deceased in self-defence.
[9] The cause of death was determined to be multiple stab wounds with large volume
of blood loss.
[1 O] It is trite law that the onus rests on the State to prove the guilt of the accused
beyond reasonable doubt it the accused's version is reasonable possibly true he
is entitled to his acquittal.1
[11] It is further settled principle in our law that the determination of guilt in a criminal
case rest upon the evaluation of the totality of the evidence, including the
credibility of witnesses, the consistency and coherence of their accounts, and
whether their version is possibly true when weighed against the inherent
probabilities and other objective evidence as articulated in the case of S v
Chabalala2 where it was held that the correct approach is not to consider the
evidence of the State and the defence in isolation but to weigh them together in
determining where the balance of probabilities lies.
[12] It must be borne in mind that the approach to be adopted by the court of appeal
when it deals with the factual finding of the trial court is informed by the collective
principle laid down in the pathfinding and seminal judgment of R v Dhlumayo and
Another3 where it was held that
"The trial court has advantages which the appellate court cannot have in
seeing and hearing the witnesses and being steeped in the atmosphere
of the trial, not only has the trial court had the opportunity of observing
their demeanour of the witnesses can hardly ever place the appeal court
in as good as position as it wa s. Even in the drawing inferences the trial
court may be in a better position than the appellate court, in that is
probable or improbable in relation to the particular people w hom it has
1 S v V 2000 (1) SACR 453 SCA at 455
2 S v C habalala 2003 ( 1) SACR 134 (SCA) para 15
1 S v V 2000 (1) SACR 453 SCA at 455
2 S v C habalala 2003 ( 1) SACR 134 (SCA) para 15
3 R v Dhlumayo and another 1948 (2) SA 677 (A) at 705 - 706 see also S v Robinson & another
1968 (1) SA 666 (A) at 675 G-H
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observed at the trial. The appellate should not seek anxiously to discover
reasons adverse to the conclusions of the trial court. Where the appellate
court is constrained to decide the case purely on the record, the question
of onus becomes all important. In order to succeed the appellant must
satisfy an appellant court that there has been some miscarriage of justice
or violation of some principle of law or procedure"
[13] When considering a matter on appeal the court has to be mindful that it is not at
liberty to depart from the trial court's findings of the fact and credibility unless they
are initiated by irregularity or an examination of the record reveals that those
findings are patently wrong4 as a result this court's power to interfere with the
findings of the trial court is limited.
[14] The Supreme Court of Appeal in the case of S v Monyane and others5 explained
that in the absence of demonstrable and material misdirection by the trial court,
its findings of fact are presumed to be correct and will only be disregarded if the
recorded evidence shows them to be clearly wrong.
[15] It is the appellant contention that he stabbed the deceased with a knife in self
defence. The postmortem report handed in as an exhibit, page 3 of the report
reveals that the deceased sustained stab wounds . The first state witness'
evidence is that the appellant was on top of the deceased stabbing him with a
knife, Mr Kgagara for the appellant correctly so conceded that there are no merits
to attack the conviction.
[16] The examination of the record of the proceedings does not reveal that the findings
of the learned Regional Magistrate are wrong, in fact it appears that he analysed
the evidence in meticulous detail and precision.
[17] The cumulative effect of the evidence supports the trial court's finding that the
State succeeded to prove its case beyond reasonable doubt.
4 S v Fransic 1991 (1) SACR 198 (A) at 198J
5 S v Monyane 2008 (1) SACR 543 (SCA) para 15
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[18] The trial court was justified in rejecting the appellant's assertion that he was
acting in self-defence if regard being had to the number of stab wounds he
inflicted on the deceased.
[19] On these facts and applying R v Dhlumayo and related principles, there is no
indication that the trial court misdirected itself.
[20] I therefore find no merit in the appeal against the conviction. I now turn to
sentence.
[21] The appellant did not testify in mitigation of sentence. His legal representative
addressed the court from the bar and the following was motivated heavily that he
is 26 years of age, he is not married but has one child and that he is first offender.
Mr Kgagara's argument is that not much was placed before the trial court before
sentence was imposed, I disagree.
[22] It is trite that the imposition of sentence is pre-eminently a matter within the
judicial discretion of a trial court. The appeal court's power to interfere with a
sentence is circumscribed to instances where the sentence is vitiated by an
irregularity, misdirection or where there is a striking disparity between the
sentence and that which the appeal court would have imposed had it been the
trial court. See S v Petkar6, S v Snyder, S v Sadler and Director of Public
Prosecutions, KZN v P
[23] The murder brought the sentencing within the purview of section 51 (1) of the
Minimum Sentences Act as the appellant preplanned the murder. This is
prescribed and not a mandatory sentence in that the court may impose a lesser
sentence if it finds that there are substantial and compelling circumstances. In the
present matter the trial court found no such circumstances and accordingly
imposed the prescribed sentence of life imprisonment.
[24] The proper approach where minimum sentences are applicable was established
by the Supreme Court of Appeal in the seminal judgment of S v Malgas7. The
6 S v Petkar 1988 (3) SA 571 (A), S v Snyder 1982 (2) SA 694 (A), S v Sadler 2001 SA CR 331
6 S v Petkar 1988 (3) SA 571 (A), S v Snyder 1982 (2) SA 694 (A), S v Sadler 2001 SA CR 331
(S C A) and Director of Public Prosecutions, KZN v P 2006 (1) SA CR 243 (SCA ) para 1 0
7 S v Malgas 2001 (1) SACR 469 (SCA ) 2001 (2) SA 1222 [2001] 3 All SA 200
5
summary of the judgment is set out in paragraph 25 of the judgment the effect of
which is that the prescribed minimum sentences should ordinarily and in the
absence of weighty consideration be imposed. In paragraph 1 of the summary , it
is stated that the court may impose a lesser sentence if on consideration of
circumstances of a particular case it is satisfied that they would render the
prescribed sentence unjust in that it would be disproportionate to the crime the
criminal and the needs of society so that an injustice would be done by imposing
that sentence.
[25] The approach in S v Malgas8 supra was endorsed by the Constitutional Court in
the case of S v Dodo9 as undoubtedly correct.
[26] When the sentence imposed by the trial court is considered on appeal, the court
of appeal must remain alive to the fact that sentencing falls pre-eminently within
the jurisdiction of the sentencing court. The Supreme Court of Appeal in Botha v
The State 10 stated that where a trial court imposed the prescribed minimum
sentence the appeal court must find substantial and compelling circumstances
justified the imposition of a lesser sentence that escaped the trial court's attention.
[27] In the present case the appellant was looking for a knife in order to stab the
deceased, he was reprimanded, he ultimately armed himself with a knife, he
broke open the deceased door, the latter fled, he gave chase, caught up with him
and stabbed him many times. The appellant's personal circumstances were
placed before the court and the trial court took them into account, the fact of the
matter is that the aggravating factors far outweigh the personal circumstances.
[28] The Regional Magistrate considered the mitigating circumstance cumulatively
and concluded that they do not constitute substantial and compelling
circumstance.
8 S v Malgas supra
9 S v Dodo 2001 (1) SA CR 594 (C C)
10 Botha v The State 546/2001 (2001) ZASCA 87, 8 June 2002 at para 10
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[29] I am satisfied on the application of the determinative test set out in the case of S
v Malgas11, that the totality of the circumstances of this case did not render life
imprisonment unjust.
[30] It is my considered view that on the facts of this case it cannot be said that the
sentence imposed is disturbingly inappropriate or vitiated by m isdirection.
[31] In the result the following order is made:
1. The appeal against conviction is dismissed
2. The appeal against sentence is dismissed.
I agree
11 S v Malgas supra
S MATLAPENG
ACTING JUDGE OF THE HIGH COURT
PRETORIA
KOOVERJIE
JUDGE OF THE HIGH COURT
PRETORIA
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