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[2019] ZASCA 176
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Madlala v S (338/2018) [2019] ZASCA 176 (2 December 2019)
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 338/2018
In
the matter between:
WELCOME
BONGOKHULE MADLALA
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Madlala
v The State
(338/2018) ZASCA 176 (2
December 2019)
Coram:
Ponnan, Mbha, Mocumie, Mbatha JJA and
Weiner AJA
Heard:
14 November 2019
Delivered:
2 December 2019
Summary:
Criminal law – sentence – 15 years’
imprisonment and life imprisonment imposed for robbery committed with
aggravating
circumstances and murder respectively – no grounds
to interfere with the sentences imposed – appeal dismissed.
ORDER
On
appeal from:
Kwazulu-Natal Division of
the High Court, Pietermaritzburg, (Patel AJP (Sishi J and Moodley AJ
concurring) sitting as court of appeal):
‘
The
appeal is dismissed.’
JUDGMENT
Mbha
JA (Ponnan, Mocumie and Mbatha JJA and Weiner AJA concurring):
[1]
The appellant was arraigned in the Kwazulu-Natal Division of the High
Court, Pietermaritzburg
(the trial court) with his erstwhile
co-accused, as accused number 1 and 2 respectively, on one count of
robbery committed with
aggravating circumstances, and one count of
murder. Both charges were read together with the provisions of s 51
of the Criminal
Law Amendment Act 105 of 1997 (the Minimum Sentence
Act).
[2]
The appellant and his co-accused, who were legally represented, were
each convicted
on their plea of guilty, of robbery with aggravating
circumstances and murder. After finding that there were no
substantial
and compelling circumstances that would justify a
departure from the minimum sentences prescribed in the Minimum
Sentence Act,
the trial court sentenced both the appellant and his
co-accused to 15 years’ imprisonment in respect of the robbery
and to
life imprisonment for murder. Both appealed, with leave of the
trial court, to the Full Court (the full court), which on 25 May
2011, dismissed the appellant’s appeal in
toto
.
The appeal of the appellant’s co-accused was partly successful
as the sentence of life imprisonment on the murder charge
was reduced
to 20 years’ imprisonment.
[3]
The appellant appeals, with the special leave of this court, against
the decision
of the full court dismissing his appeal against
sentence. The decision of the full court is attacked on the
basis that it
ought to have likewise reduced the appellant’s
sentence of life imprisonment, as it did with his co-accused
[4]
As emerges from the statements of the appellant and his co-accused
filed pursuant
to
s 112(2)
of the
Criminal Procedure Act 51 of 1977
,
the two of them and one Siphamandla, who was the apparent leader,
hatched the plan to rob the deceased and his wife
on their
farm. Siphamandla was subsequently shot and killed by the
police when they tried to apprehend him in connection
with the
offences giving rise to this case. The appellant described in detail
his planned role during the robbery. He stood guard
over the
deceased’s elderly wife with a firearm at the ready. After
Siphamandla had shot and killed the deceased in a separate
room, the
appellant removed items from the house, including cash, a cellular
phone and a DVD player. The DVD player was later sold
to the
appellant’s cousin, Michael, a member of the SAPS for R140.00
and the cellular phone was sold for R200.00.
[5]
The trial court considered all the relevant factors and struck an
appropriate balance
between the appellant’s personal
circumstances, the interests of society and the seriousness of the
offences. It found, correctly,
that the aggravating factors far
outweighed the personal circumstances of the appellant, which
included that he had pleaded guilty
to the offences and that he
regretted his actions. In that regard, it found that the offences
were well planned and that the robbery
was not a spur of the moment
event. Furthermore, the deceased and his wife were brazenly attacked
in the sanctity of their home
and that this was a violent attack on a
defenceless and elderly couple. I am unable to fault the trial court
in its reasoning when
it found there were no substantial and
compelling circumstances justifying a departure from the prescribed
minimum sentences.
[6]
With regards to the decision of the full court, in reducing the
sentence of
the appellant’s co-accused from life imprisonment
to 20 years’ imprisonment for murder, the reasons for the
differentiation
in so far as the appellant is concerned was in my
view, justified. The appellant’s co-accused was 21 years old at
the time
of the commission of the offences in contradistinction to
the appellant, who was 34 years old. The record also shows that the
co-accused
co-operated and assisted the police with the investigation
of the crimes. The full court took into account the relative
youthfulness
of the appellant’s co-accused as well as his
unblemished record in concluding that he was a good candidate for
rehabilitation.
The same could not be said for the appellant.
[7]
The appellant had serious and relevant previous convictions at the
time of the commission
of the offences. On 3 September 2009, a mere
four days before the commission of the robbery and murder in this
case, the appellant
was convicted in the Pietermaritzburg
Magistrates’ Court of culpable homicide and assault with the
intent to commit grievous
bodily harm. He was on the same day
sentenced to nine years’ imprisonment, which was suspended for
five years on condition
that he was not convicted of the crime of
assault involving the use of a weapon. This factor clearly put paid
to any suggestion
or argument that the appellant is a good candidate
for rehabilitation.
[8]
I am unable to fault the full bench for dismissing the appellant’s
appeal against
sentence. In the result, this appeal cannot succeed.
I make the following order:
‘
The appeal
is dismissed.’
_______________
B H Mbha
Judge
of Appeal
APPEARANCES:
For
Appellant:
Z Anastasiou
Instructed
by:
PMD Justice Centre, Pietermaritzburg
Bloemfontein
Justice Centre, Bloemfontein
For
Respondent:
C Kander
Instructed
by:
The Director of Public Prosecutions, Pietermaritzburg