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[2019] ZASCA 31
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Aliko v S (552/2018) [2019] ZASCA 31 (28 March 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Non-Reportable
Case
no: 552/2018
In
the matter between:
MOHAMMED
SANI
ALIKO APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Aliko v The State
(552/2018)
[2019] ZASCA 31
(28
March 2019)
Coram:
Leach, Dambuza and Van der Merwe JJA and Carelse and Eksteen AJJA
Heard:
11 March 2019
Delivered:
28 March 2019
Summary:
Criminal law – sentencing – appellant convicted of
murder – premeditation is not an essential requirement for
sentence of life imprisonment – court exercises inherent
discretion in determining suitable sentence – life imprisonment
justified for brutal murder of a defenceless disabled victim.
ORDER
On
appeal from
: Eastern Cape Division, Grahamstown (Tshiki, Roberson
and Bloem JJ sitting as court of appeal):
The
appeal is dismissed.
JUDGMENT
Dambuza
JA (Leach, and Van der Merwe JJA and Carelse and Eksteen AJJA
concurring):
Introduction
[1]
During the mid-morning of 8 August 2013, a 44 year old disabled man,
Mohammed Laher (the deceased), was found murdered at the
South End
Mosque in Port Elizabeth. The appellant, Mohammed Sani Aliko, was
charged and convicted of this murder by the Eastern
Cape Local
Division of the High Court, Port Elizabeth (trial court, Revelas J).
He was then sentenced to life imprisonment. On
appeal to a Full Court
of the Eastern Cape Division, Grahamstown (court a quo) the
conviction and sentence were confirmed. This
appeal against the
sentence of life imprisonment, is with the special leave of this
court.
[2]
Before considering the issue in this appeal, it is necessary to deal
with one unfortunate aspect. The State is on record as
opposing this
appeal. Its Heads of Argument were duly filed. However on the day of
the hearing of the appeal there was no appearance
on its behalf.
Nevertheless, despite non-appearance by the State, the appeal hearing
had to proceed as the appellant’s counsel
was in attendance and
the appeal was properly before us.
Background
[3]
The day of the incident, 8 August 2013, was the penultimate day of
the sacred month of Ramadaan in the Islamic year. In the
mosque were
Ms Muna Mohammed Osman (Ms Osman), her husband Mr Moulid Osman Siyad
(Mr Siyad), the couple’s four young children,
and the deceased.
The couple looked after the mosque as caretakers during the month of
Ramadaan. Ms Osman was with the children
in the women’s section
of the mosque whilst her husband was asleep on the first floor.
[4]
The deceased suffered from
multiple sclerosis which, over the preceding 15 years, had rendered
him disabled. He walked with difficulty
with the assistance of
crutches and also used a wheel chair. In the mosque he would crawl on
the carpeted floor. Ms Osman had known
him for approximately five
years. He had spent the preceding three months in the mosque, fasting
and praying.
[1]
During the last ten days of Ramadan he submitted himself to Itikaaf
and thus devoted those days in the mosque, praying and reading
scriptures. His favourite spot in the mosque was towards the front of
the prayer area. There he would sit at a small book table
on which he
would place his Quran and other books. All indications were that this
is where he was when he met his death.
[5]
According to Ms Osman the appellant (to whom she referred as Hamza)
arrived at the mosque at about 10h45 on the morning of the
incident.
Ms Osman knew him and recognised him on a CCTV monitor inside the
mosque. She opened the locked main door for him.
[6]
After the appellant had entered the mosque, Ms Osman went about her
own affairs. A while later she heard a ‘thumping’
sound
which she described as ‘someone playing with a ball’
inside the prayer area of the mosque. She instructed her
five year
old daughter to investigate. When the daughter told her that it was
the appellant she (Ms Osman) peeped through a hole
in the door to the
prayer area. She saw the appellant ‘making swinging movements
with [a] cable’ that he had in his
hand. Ms Osman left the
building together with her children and locked herself in her car
which was parked in the yard of the mosque.
At some stage she
alighted from the car in order to go back and look inside the mosque,
but returned to the car on hearing the
appellant closing windows
inside the mosque. She again left the car, but returned once more on
hearing the appellant closing a
door in the women’s bathroom.
Through all of this her husband was still asleep in the mosque.
Eventually the appellant came
out of the mosque carrying the
electrical cable, which he threw in a concrete rubbish bin outside
the building, and then left the
mosque.
[7]
After the appellant had left, Ms Osman returned to the mosque. That
is when she discovered the deceased lying dead on the floor.
He had
sustained extensive bruising on the head, neck and chest. He had died
of strangulation, having sustained fractured tracheal
rings and a
severely bruised larynx. A pencil had been plunged into his left ear
with such violent force that it penetrated his
inner ear and tore
into his temporal muscles. As a result thereof, he had bled severely
into his chest cavity and lungs.
[8]
On discovering the deceased lying on the floor Ms Osman called out to
her husband, telling him that the appellant had killed
the deceased.
Thereafter she went outside and flagged down a passing police
vehicle.
[9]
At the trial, the appellant’s version was that he went to the
mosque to find out what the time was as he had an appointment
with a
benefactor who was financing his University studies. He also wanted
to ascertain prayer times on the mosque roster. He admitted
having
seen Ms Osman’s five year old daughter but denied having seen
Ms Osman and the deceased, both of whom he knew well.
Because he saw
no adults at the mosque he decided to leave through the female
entrance which was unlocked. He denied that he had
a cable in his
hands when he exited the mosque.
[10]
It is against this background that the appellant was convicted. The
trial court rejected his denial that he had killed the
deceased
together with his version on why he visited the mosque and what
happened when he was there. Although the court a quo confirmed
the
sentence of life imprisonment, it found that there was no evidence of
premeditation. It then set aside the conviction of ‘premeditated
murder’ and replaced it with one of ‘murder’.
[11]
Despite the finding by the court a quo that, even in the absence of
premeditation, the sentence of life imprisonment was the
appropriate
sentence for this murder. This appeal is still grounded on the
imposition of that sentence based on the finding of
premeditation.
The submission on behalf of the appellant was that the approach of
the court a quo remained anchored in the erroneous
thinking of the
trial court, that life imprisonment was the minimum sentence
applicable for the crime committed by the appellant.
It was argued
that the court a quo had lost sight of the fact that this murder was
less reprehensible than a premeditated killing
and that the minimum
sentence prescribed in respect of a non-premeditated murder is 15
years’ imprisonment, which would have
been an appropriate
sentence.
[12]
It was also submitted on behalf of the appellant that the court a quo
attached insufficient weight to the appellant’s
personal
circumstances. At 44 years old the appellant was a first offender. He
was an unemployed bachelor with a one year old baby
who lived with
its grandparents. He was studying for an Honours Degree at the Nelson
Mandela University in Port Elizabeth. He had
recently lost another
young child and was under severe emotional stress from this tragedy.
He was also experiencing serious financial
challenges when he
committed the murder.
Discussion
[13]
It is necessary, firstly, to
say something about the offence of which the appellant was convicted.
It is trite that murder consists
of an unlawful and intentional
causing of the death of another human being.
[2]
Premeditation is not an element of the offence of murder. It is a
factor in the assessment of the sentence to be imposed. As this
court
has previously held: ‘. . . .in specifying an enhanced penal
jurisdiction for particular forms of an existing offence,
the
legislature did not create a new type of offence. The ‘robbery
with aggravating circumstances’ is not a new offence.
The
offences scheduled in the minimum sentencing legislation are likewise
not new offences. They are but specific forms of existing
offences,
and when their commission is proved in the form specified in the
Schedule, the sentencing court acquires an enhanced
penalty
jurisdiction. It acquires that jurisdiction, however, only if the
evidence regarding all the elements of the form of the
scheduled
offence is led before verdict on guilt or innocence, and the trial
court finds that all the elements specified in the
Schedule are
present.’
[3]
In
relation to this case therefore, the legislature did not create an
offence of ‘premeditated murder’. The expression
is
merely used in s 51 of the Criminal Law Amendment Act 105 of 1997
(the CLAA) to communicate the basis for the enhanced sentencing
regime in a particular case. The appellant had been convicted of
murder. The court a quo however set aside what it called a conviction
of premeditated murder and substituted it with a conviction of
murder. This was a misdirection as there is no offence of
premeditated
murder and the trial court had not convicted the
appellant of such a crime. Nevertheless, no harm was done as the
appellant was
clearly guilty of the offence of murder.
[14]
There is uncertainty in this case as to whether the trial court did
find that the murder had been planned. Although at the
start of the
sentencing proceedings the court remarked that the appellant had been
convicted of premeditated murder, during the
application for leave to
appeal the learned judge said that she had sentenced him in terms of
her ‘ordinary sentencing jurisdiction’.
It is not
necessary for us to concern ourselves with this issue. What is
relevant is whether the trial court and the court a quo
exercised
their discretion properly in determining the sentence.
[15]
Recently this court, in
Kekana
v S
,
[4]
considered a sentence of 15 years’ imprisonment imposed on an
appellant charged with four counts of murder for killing his
four
children. In a statement tendered in terms of s 112 of the Criminal
Procedure Act 51 of 1977 (the CPA), the appellant had
pleaded guilty
on all the counts ‘in terms of s 51(2) of [Act 105 of 1997]’.
He did not explain why the provisions
of s 51(2) should apply instead
of s 51(1) which the state had invoked. This court emphasized the
long established principle that
courts enjoy inherent discretion when
determining
sentence.
At
para
27 Makgoka JA, writing
for
the court, held:
‘
.
. . .a cryptic, unexplained reference to s 51(2) such as the one in
the present case, is certainly not sufficient to mutate the
sentencing regime from the purview of s 51(1) to s 51(2).
It must
be emphasized in this regard that even where such facts are stated,
the discretion of the court to consider and impose an
appropriate
sentence remains extant.
’ (My emphasis)
[16]
At para 28 of
Kekana v S,
Makgoka JA highlighted that the
dictates of justice and the need to avoid absurd consequences
required consideration of life sentence
by the sentencing court even
where the state accepted the plea and invocation of a more lenient
sentencing regime. The learned
judge emphasized that irrespective of
the minimum sentences provided for in the CLAA, the court retained
its inherent power to
consider the sentence of life imprisonment.
[17]
In
S
v Matyityi
[5]
this court stressed the
importance of proportionality and balance between the crime, the
criminal and the interests of society.
It remains the paramount
function of the sentencing court to independently apply its mind to
the consideration of a sentence that
is proportionate to the crime
committed. The cardinal principle that the punishment should fit the
crime should not be
ignored.
[18]
These remarks are equally applicable in this case. Even in the
absence of premeditation, the imposition of a sentence which
is
disproportionate to the crime committed would be wrong. It remained
the duty of the courts to determine and impose a sentence
which took
into consideration the crime, the criminal and the interests of
society. The trial court was alive to this. When sentencing
the
appellant, the trial judge said that even if there had been no
premeditation the sentence of life imprisonment would have been
the
appropriate sentence. I agree.
[19]
This murder was horrific. It was executed with shocking brutality and
cruelty against a defenceless, sickly person. The appellant’s
brazenness went beyond the commission of the crime. On the evening of
the incident he returned to the mosque and prepared to participate
in
the evening prayers. It is at this stage Ms Osman alerted other
people leading to his arrest. At no stage did he show remorse.
As the
trial court highlighted, this senseless murder was committed in a
mosque, a place of worship and refuge, during a particularly
sacred
period of Ramadan. The aggravating factors in the crime committed by
the appellant far outweighed his personal circumstances.
In these
circumstances, retribution and deterrence come to the fore and the
appellant’s personal circumstances reduce to
the background.
The sentence of 15 years’ imprisonment would be woefully
inappropriate in these circumstances. The sentence
of life
imprisonment is suitable.
[20]
The appeal is dismissed.
___________________
N
Dambuza
Judge
of Appeal
APPEARANCES
For
Appellant: L Smith
Instructed
by: Legal Aid South Africa, Port Elizabeth Bloemfontein Justice
Centre, Bloemfontein
For
Respondent: No appearance
Instructed
by: mDirector of Public Prosecutions, Grahamstown Director of Public
Prosecutions, Bloemfontein
[1]
The Rajab, Shab’aan and, at the time of the incident, the
Ramadaan.
[2]
C R Snyman Criminal Law 5 ed at 447.
[3]
S v Legoa
2003 (1) SACR 13
(SCA) para 18.
[4]
Kekana v S [2018] ZASCA 148; 2019 (1) SACR 1 (SCA); [2019] 1 All SA
67 (SCA).
[5]
S v Matyityi
[2010] ZASCA 127
;
2011 (1) SACR 40
(SCA);
[2010] 2 All
SA 424
(SCA).