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[2023] ZAWCHC 8
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Gila v S (A93/2022) [2023] ZAWCHC 8; 2023 (1) SACR 369 (WCC) (19 January 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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FLYNOTES:
CRIMINAL – Sentence – Murder – Xenophobia –
Attack on Congolese nationals – Violent
attacks against
foreigners have become a real and common reality – Deterrent
value of appropriate sentencing –
Court a quo sentencing
accused to 20 years for murder and 10 years for attempted murder –
Appeal against sentence dismissed.
Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case
Number: A93/2022
Lower
court case number:  SWS 35/2018
In
the matter
between:
AZILA
GILA

Appellant
and
THE
STATE

Respondent
Before
the Honourable Mr Justice Erasmus and
The
Honourable Ms Acting Justice De Wet
Date of Judgment: This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email.
The date and time for
handing down judgment is deemed to be 12h00 on 19 January 2023.
JUDGMENT
DE
WET AJ:
[1]
Violent attacks against foreigners have become a real and common
reality in South
Africa. These senseless and mostly unsolicited
xenophobic incidents are difficult to reconcile with a post-apartheid
reality. The
role of the law in curbing xenophobia is found in the
Constitution which states: “Everyone has the right to freedom
and security
of the person”, the
Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000
,
Refugees Act 130
of 1998
, the Protection of Harassment Act 17 of 2011 and the
Immigration Act 13 of 2002
. In the matter of Kiliko and Others v
Minister of Home Affairs and Others
2006 (4) SA 114
(C) at para 28,
Van Reenen J explained the situation in our law in respect of foreign
nationals as follows: “The state, under
international law, is
obliged to respect the basic human rights of any foreigner who has
entered its territory, and any such person
is under the South African
Constitution, entitled to all the fundamental rights entrenched in
the Bill of Rights, save those expressly
restricted to South African
citizens …”
[2]
There is no law against xenophobia, and it consequently rears its
toxic head through
other crimes such as murder, robbery, assault,
theft, discrimination and many others. It is thus only through other
laws that the
courts can assist in combatting this kind of
infringement on basic human rights.
[3]
This is an appeal against sentence. The violent crimes in respect of
which the appellant
was found guilty and sentenced, were plainly
underpinned by xenophobia.
Factual
background:
[4]
The factual matrix to this appeal can be briefly summarised as
follows: On Saturday,
25 February 2017, the deceased and his brother,
Mr K[...], both Congolese nationals, were walking home at
approximately 18h00 after
work. They were talking and passing other
people in the street when they were approached by four men who
started attacking them,
without any provocation, by stabbing them
with knives and hitting one of them with a beer bottle. The deceased
managed to run away
from the attackers but returned to the scene to
try and rescue his brother, Mr K[...], who was still under attack.
Both the deceased
and Mr K[...] were stabbed again by two of the
attackers (the other two had fled the scene at this stage) and they
again tried
to run away. This time the deceased was kicked in the leg
and he fell. One of the assailants, he was identified by Mr K[...] as

the appellant, kneeled over the deceased, who was lying on his back,
and stabbed him repeatedly. As Mr K[...] saw the blood running
from
his brother’s body, he took a screwdriver from his backpack and
stabbed the assailant in the back to get him off the
deceased. The
remaining two assailants ran away and Mr K[...] and his brother were
eventually taken to hospital for treatment.
His brother did not
survive. According to the affidavit in terms of s 212(4)(a) of the
Criminal Procedure Act 51 of 1977 (the “CPA”),
the post
mortem examination showed that the deceased had a total of 6
penetrating stab wounds in the chest, back and left hand.
On the same
evening there was another attack on foreign nationals in the same
area but the complainant was too scared to press
charges.
[5]
The appellant and his co-accused were charged on 25 February 2017, at
the Regional
Court, Strand, with one count of murder and one count of
attempted murder.  The appellant was legally represented and
pleaded
not guilty. He claimed that he was not in Cape Town at the
time of the attack as he had travelled by taxi from Cape Town to
Duduza
in the Eastern Cape on 24 February 2017 to show his one and a
half year old child to his parents and only returned on the 26
th
of February 2017.
[6]
At the commencement of trial, with the consent of the legal
representative of the
appellant’s co-accused, Mr Bavuma, the
court
a quo
received into evidence a statement made by him as
Exhibit B. It read as follows:
“
On
Saturday I cannot remember the date I went to the Sangoma to get
medicine for the vomiting. I saw this black guy that worked
at the
Sangoma. I went home and later I saw this black guy with another
black guy at the shebeen. I bought 4 beers and we were
drinking. Two
foreigners walked past us with bags. The one black guy that was
sitting with me called the one foreigner and he just
walked on.
The black guy stood up and ran after this foreigner. The black guy
started to stab this foreigner with a knife.
I saw the other
foreigner turned around and took a screwdriver out of his bag. The
foreigner started to stab this black guy with
the screwdriver at his
back. I took a bottle of beer and throw the foreigner with the
screwdriver on this chest. The foreigner
got up and ran away. I went
to the black guy and took him away from the foreigner that was lying
on the ground. I took him away
and we went to another shebeen to
drink. That is all that I can say. I do not know the black guy’s
name and I threw the foreigner
with a beer bottle to stop them from
fighting
.”
[7]
Mr Bavuma identified the “black guy” as the appellant. Mr
K[...] identified
the appellant as the person who stabbed and killed
his brother.
[8]
The appellant had an injury on his back which was consistent with the
evidence of
both Mr K[...] and Mr Bavuma, that Mr K[...] had stabbed
the appellant on the back to get him off the deceased. The appellant
persisted
with his alibi defence and explained the mark on his back
as being an injury he sustained whilst in the Eastern Cape from a
sharpened
pole used for building huts. His alibi and explanation for
the injury to his back was, correctly so in my view, rejected by the

court
a quo
as being false.
[9]
The appellant and his co-accused
were found guilty of murder and attempted murder on 31
August 2021.
In terms of s 51(1) of the Criminal Law Amendment Act 105 of 1977
(the “CLA”), Part 1 of Schedule 2, the
appellant faced a
minimum sentence of life imprisonment on the murder charge unless the
court
a
quo
found
compelling and substantial circumstances which justified a deviation
therefrom. The appellant did not testify in mitigation
of sentence
and his attorney placed very limited personal circumstances before
the court
a
quo
by
way of submissions. He was sentenced to 20 years imprisonment on
count 1 and to 10 years imprisonment on count 2. The sentences
were
ordered to run concurrently. The appellant was also declared unfit to
possess a firearm in terms of s 103(1) of the Firearm
Control Act 60
of 2000. His application for leave to appeal against both conviction
and sentence was dismissed, and he proceeded
to file a petition for
leave to appeal in this court. He was granted leave to appeal against
sentence only.
[1]
Grounds
of appeal:
[10]
The appellant contends, in general terms, that:
10.1
The court
a quo
erred in that the personal circumstances of
the appellant were not sufficiently taken into account;
10.2
The court
a quo
erred in imposing an excessively harsh and
shocking sentence in the circumstances of the case and had thereby
over-emphasised the
retributive aspect of sentencing; and
10.3
The court
a quo
erred in over-emphasising the interest of the
community as opposed to the interest of the appellant.
[11]
It is trite that the imposition of sentence is
pre-eminently a matter for the discretion of the trial court
and must
be based on the correct facts and legal position. The trial court is
thus free to impose whatever sentence it deems appropriate
provided
that it exercises its discretion judicially and properly. This
presupposes that the trial court must sentence on the correct
facts
and must take the correct legal position into account.
[12]
In exercising this discretion, the sentencing court must strive to
find a balance between competing
interests in its sentence. In order
to achieve this, it must not sentence in anger or hastily, or take
into account, irrelevant
matters. As set out in the well-known and
often quoted case of S v Zinn
1969 (2) SA 537
(A) 540G-H, a court,
when imposing sentence, must consider ‘the triad consisting of
the crime, the offender and the interests
of society’ and the
duties of a judge in imposing sentence is as follows:
“
As
regards the duties of a Judge in imposing punishment, we have been
referred,
inter
alia
,
to Voet, vol 1 p 57, where in a note, it is said (Gane’s
translation, vol 2, p 72):
‘
It
is true, as Cicero says in his work on Duties, Bk
1, Ch 25
, that
anger should be especially kept down in punishing, because he who
comes to punishment in wrath will never hold that middle
course which
lies between the too much and the too little. It is also true that it
would be desirable that they who hold the office
of Judges should be
like the laws, which approach punishment not in a spirit of anger but
in one of equity
.’”
[13]
With regard to the test on appeal, the legal position as set out S v
Rabe
1975 (1) SA 855
(A) 857D-F still holds true:
“
In
every criminal appeal against sentence whether imposed by a
magistrate or a judge, the Court hearing the appeal –
(a)
should be
guided by the principle that punishment is ‘pre-eminently a
matter for the discretion of the trial Court’;
(b)
should be
careful not to erode such discretion: hence the further principle
that the sentence should only be altered if the discretion
has not
been ‘judicially and properly exercised’.
The
test under (b) is whether the sentence is vitiated by irregularity or
misdirection or is disturbingly inappropriate
.”
[14]
In S v Pillay
1977 (4) SA 531
(A) 535F-G the court held:
“
As
the essential enquiry in an appeal against sentence, however is not
whether the sentence was right or wrong but whether the Court
in
imposing it exercised its discretion properly or judicially, a mere
misdirection is not by itself sufficient to entitle the
Appeal Court
to interfere with the sentence: it must be of such a nature, degree
or seriousness that it shows, directly or inferentially,
that the
court did not exercise its discretion at all or exercised it
improperly or unreasonably. Such a misdirection is usually
and
conveniently termed one that vitiates the court’s decision on
sentence
.”
[2]
[15]
Against these general well accepted principles, the grounds of appeal
are considered below.
Did
the court a quo sufficiently consider the personal circumstances of
the accused?
[16]
The personal circumstances of the appellant can be summarised as:
16.1    He
was 22 years old when he committed the crimes;
16.2    He
has no previous convictions;
16.3    He
only completed Grade 4;
16.4    He
is unmarried with two children who live with their maternal aunt in
the Eastern Cape and previously contributed
R 600.00 a month per
child for their maintenance;
16.5    At
the time of his arrest he had a small house shop where he sold
cigarettes, chips and sweets;
16.6    He
was awaiting trial for a period of 3 ½ years of which he spent
16 months incarcerated due to a
violation of his bail conditions.
[17]
The court
a quo
in its judgment on sentence makes reference to
these personal circumstances of the appellant and correctly finds
that there is
nothing about the personal circumstances of the
appellant which is of such a nature that it can be said to be special
or out of
the ordinary. Further to this, the aggravating
circumstances, in my view, by far outweigh the personal circumstances
of the appellant.
He was the perpetrator of a violent unsolicited
assault based on xenophobia with led to the death of an innocent
person, he presented
a false alibi, he stabbed the deceased several
times and continued to do so after he had fallen to the ground, and
he showed no
remorse whatsoever.  More importantly, the court
a
quo
deviated from the prescribed minimum sentence of lifelong
imprisonment on the murder charge by taking into account his young
age
and the fact that he had been awaiting trial for 3 ½
years. To have deviated any further from the prescribed minimum
sentences
imposed by the legislature would in my view, in the
circumstances of this matter, have rendered the sentence of the
appellant shockingly
inappropriate.
[18]
In S
v Matyityi
[3]
the Court stated
that an offender of “20 years or more must show by acceptable
evidence that he was immature to such an extent
that his immaturity
can operate as a mitigating factor”.
[4]
As in Matyityi, there is nothing on record to suggest that the
appellant’s relatively young age was a factor which contributed

to him committing the offences he was found guilty of or that he was
influenced by the other perpetrators to commit these serious
crimes.
As the deceased and his brother was not robbed and randomly attacked
by strangers on the street in the presence of bystanders
who did
nothing to assist, the only motive for the attack appears to have
been the fact that they were foreigners. The nature and
motive for
the attack should in my view be treated as an aggravating factor for
purposes of sentencing.
[19]
The trial court, when weighing the relatively young age of the
appellant against the circumstances
of the attack, exercised its
discretion and showed the appellant mercy and an opportunity to
rehabilitate.
Did the court a quo
impose an excessively harsh sentence and over-emphasized the
retributive aspect of sentencing?
[20]
The starting point to answer this question is that the court
a quo
could have imposed a life sentence in respect of count 1 and
could have imposed a sentence in excess of 10 years in respect of
count
2. It could further, in the exercise of its discretion, have
decided to not invoke s 280(2) of the CPA. It did not.
[21]
Section 280(2) of the CPA deals with cumulative or concurrent
sentences and states as follows:
“
(1)
When a person is at any trial convicted of
two or more offences or when a person under sentence or
undergoing
sentence is convicted of another offence, the court may sentence him
to such several punishments for such offences or,
as the case may be,
to the punishment for such other offence, as the court is competent
to impose.
(2)
Such punishments, when consisting of
imprisonment, shall commence the one after the expiration,
setting
aside or remission of the other, in such order as the court may
direct, unless the court directs that such sentences of
imprisonment
shall run concurrently.
(3)
…”
[22]
In terms of this section it is clear that the default position in
terms of the CPA is that
sentences
of imprisonment imposed for two or more offences will run
consecutively, unless the court directs that they run concurrently.

The purpose of the section is clearly to ensure that the cumulative
effect of several sentences imposed in one trial is not too
severe in
the light of the aggregate sentence
[5]
or unduly harsh,
[6]
whilst not
underestimating the seriousness of the offence
[7]
as explained in Nhlapo v The State (Case no 835/2021)
[2022] ZASCA
125
(26 September 2022). In this matter the SCA dealt on petition in
terms of s 316(1) of the CPA, with the issue of whether the
high
court had erred in confirming a sentence for robbery imposed by the
trial court in excess of the prescribed minimum in terms
of s 51(2)
of the CLA, and in confirming that only a portion of the sentence for
attempted murder was to run concurrently
with that of the sentence
for robbery. It held, citing the matter of Mthembu v S
[8]
,
with reference to Swain J’s exposition in the court below
[9]
that the ‘starting point’ when considering the imposition
of a sentence higher than the minimum is the following:
“
Although
the prescribed minimum sentence should be the starting point, this is
solely for the purpose of deciding whether a sentence
less than the
prescribed minimum sentence should be imposed.
The exercise of a discretion by the presiding officer to impose a
sentence greater than the prescribed minimum sentence, does not
have
to be justified by reference to the prescribed minimum sentence.”
(my emphasis)
[23]
The SCA further pointed out that the language used in s 51(2) of
the CLA, when compared
to s 51(3)
(a)
of the CLA, dictates
that a presiding officer, if satisfied that there are substantial and
compelling circumstances justifying
the imposition of a lesser
sentence than the prescribed minimum, must enter such circumstances
on the record.
[24]
The court
a
quo
, in
sentencing the appellant to 20 years imprisonment, which is to run
concurrently with the 10 years for attempted murder, exercised
its
discretion and considered the cumulative effect of several sentences
to ameliorate the impact of a cumulative lengthy sentence
given his
young age and the time spent awaiting trial. The appellant was unable
to point to any misdirection in respect of the
court exercising its
discretion in this regard.
[10]
[25]
In the matter of Zinjanje v S A75/2021
[2021] ZAWCHC 185
(15
September 2021), the appellant was convicted to 12 years imprisonment
for robbery with aggravating circumstances and to 15
years for rape.
The court
a quo
found that substantial and compelling
circumstances existed which warranted a deviation from the minimum
sentence in respect of
both convictions but made no order in terms of
section 280 (2) of the CPA that the sentences or part thereof, run
concurrently
with the other. On appeal the court held that the court
a quo
, in the exercise of its discretion, did not invoke s
280(2) as some time had lapsed between the commissioning of the
offences.
To the benefit of the appellant herein, the court
a quo
correctly so, must have come to the conclusion that the offences
committed by the appellant were sufficiently closely connected
and
inextricably linked, in order to receive the “discount”
afforded to him in terms of s 280(2).
[26]
In the matter of Yose v The State 2022(2) SACR 603 (WCC)(22 June
2022) the issue of when and
how sentences run concurrently was
discussed and it was aptly set out in para 15 as follows: “
Sentences
thus generally run cumulatively unless there is an express order that
they are to run concurrently. That is, however,
not the end of the
matter. There are certain instances in which sentences will be served
concurrently in the absence of a specific
order.”
[11]
[27]
By applying s 280(2) the court
a quo
tempered the harshness
the prescribed minimum sentence of life imprisonment despite the fact
that the appellant had tried to kill
yet another person.
Did
the court a quo over-emphasise the interest of the community as
opposed to the interest of the appellant?
[28]
Davis J in the matter of Osman v Minister of Safety and Security &
Others
[2011] JOL 2743
(WCC), in the Equality Court, dealt with
a
complaint of unfair discrimination based on the grounds of ethnicity
and social origin instituted in terms of section 20 of the
Promotion
of Equality & Prevention of Unfair Discrimination Act 4 of 2000
("the Act"). He quoted with approval the
description by
Sachs J in the minority judgment in the Union of Refugee Women &
Others v Director, Private Security Industry
Regulatory Authority &
Others
2007 (4) SA 395
(CC) at paras 143 and 144, of xenophobia as:
“..the deep dislike of non-nationals by nationals of recipient
state. Its manifestation
is a violation of human rights. South Africa
needs to send out a strong message that an irrational prejudice and
hostility towards
non-nationals is not acceptable under any
circumstances."  and that:
“
This
prejudice is strong in South Africa.   It strikes at the
heart of our Bill of Rights. Special care accordingly needs
to be
taken to prevent it from even unconsciously tainting the manner in
which laws are interpreted and applied. If refugees are
treated as
intrinsically untrustworthy, with their capacity to perform honestly
and reliably being placed presumptively in doubt,
then xenophobia is
given a boost and constitutional values are undermined...
The
constitutional response to xenophobia need not, of course involve
exaggerated xenophilia. Just as refugees should be protected
from
irrational prejudice, so they should not be able to lay claim to
irrational privilege. The law... must be applied in a manner
that is
fair, objective, appropriately focused and keeping with the letter
and spirit of our international and national legal obligations.

Exercises of power that purport to have a neutral foundation, but
track stereotypes are often seen as flowing from a reinforcing

negative presupposition. Indeed, the routinised way in which power is
exercised, can readily become entangled in the public mind
with
existing prejudicial assumptions reinforcing prejudice as
establishing a downward spiral of disempowerment. One of the purposes

of refugee law is precisely to overcome the experience of trauma in
displacement and make the refugee feel at home and welcome.

Disproportionate and uncalled for adverse treatment would defeat that
objective and induce an unacceptable and avoidable experience
of
alienation and helplessness. It would be most unfortunate that the
left hand of government supervises the security industry
took away
what the right hand of government, that accords to accredited
refugees a special status, gives.”
[29]
In South African Revenue Service v Commission for Conciliation,
Mediation and Arbitration and
Others
2017 (1) SA 549
(CC), Mogoeng CJ
in para 8 referred to this ongoing problem as follows: “….But
why is it that racism is still so openly
practiced by some despite
its obviously unconstitutional and illegal character? How can racism
persist notwithstanding so much
profession of support for or
commitment to the values enshrined in our progressive Constitution
and so many active pro-Constitution
no-governmental organizations”
and answers this question in para 14 as follows: “..racist
conduct requires a very firm
and unapologetic response from the
courts, particularly the highest courts. Courts cannot therefore
afford to shirk their constitutional
obligation or spurn the
opportunities they have to contribute meaning fully towards the
eradication of racism and its tendencies.”
[30]
In S v Msimango
2018 (1) SACR 276
(SCA) Bosielo JA considered the
appropriateness of a sentence of 20 years imprisonment for robbery
with aggravating circumstances
where a firearm was used in a
xenophobic attack. He correctly referred to xenophobia as a cancer
and that it has a negative effect
our country’s image and needs
to be rooted out wherever it rears its ugly head
[12]
.
The fact that the attack was based on xenophobia was taken into
consideration and a further 5 years was added to the sentence
of the
accused in that matter.
[31]
The deterrent value of appropriate sentencing, especially in crimes
of this nature, cannot be
underestimated. Everybody, be it South
African citizens or foreign nationals, is entitled to move around
freely and in a safe environment.
The attitude displayed by the
appellant, and the community by not lending assistance whilst the
deceased and his brother were openly
attacked in daylight, evidences
the harsh reality that these kinds of crimes are not regarded with
the seriousness it should and
undermines our constitutional
democracy.  The court
a quo
quite correctly described the
incident as “a heartless, relentless callous, pitiless attack
on these two people” (sic),
yet, in the exercise whilst sending
a strong message that such attacks will not be tolerated by the
courts, tempered the sentence
of the accused by deviating from the
minimum prescribed sentences and by employing s 280(2).
[32]
In the circumstances, the following order is made:
The appeal is dismissed.
A De Wet
Acting Judge of the
High Court
I agree:
N Erasmus
Judge of the High
Court
On
behalf of the Appellant: Adv Inge BMG Levendall, instructed by
LEGAL
AID SOUTH

AFRICA
Email:
RusselC@legal-aid.co.za
On
behalf of the Respondent
Adv R K Uys, instructed by
THE OFFICE OF THE
DIRECTOR
OF PUBLIC PROSECUTIONS:
WESTERN
CAPE
Email:
RUys@npa.gov.za
[1]
An order was granted by way of
petition by the honourable Justices Ndita and Lekhuleni on 11 April
2022 under case number P16/2022.
[2]
See also S v Jimenez
[2003] 1 All SA
535
(SCA) para 7 and S v Kgosimore 1999(2) SACR 238(SCA) para 10.
[3]
2011 (1) SACR 40 (SCA).
[4]
Ibid para 14.
[5]
S v Cele
1991 (2) SACR 246
(A) at 248j.
[6]
Moswathupa v S
2012
(1) SACR 259
(SCA) and
S v
Dube
2012 (2) SACR 579
(ECG) para 11.
[7]
S v Maraisana
1992 (2) SACR 507
(A) at 511g.
[8]
2012 (1) SACR 517 (SCA).
[9]
S v Mthembu
2011 (1) SACR 272
(KZP) para 19.1.
[10]
S
v Malgas
2001 (1) SACR 469
(SCA) at para 12: ‘A court exercising
appellate jurisdiction cannot, in the absence of material
misdirection by the trial
court, approach the question of sentence
as if it were the trial court and then substitute the sentence
arrived at by it simply
because it prefers it. To do so would
be to usurp the sentencing discretion of the trial court'.
[11]
See in this regard S v
Moswathupa
2012 (1) SACR 259
(SCA) at para 8 and S v Mokela
2012 (1)
SACR 431
(SCA) at para 11 read with
Section 39(2)(a)(i)
of the
Correctional Services Act 111 of 1998
, provides that:
“
(2)(a)
Subject to the provisions of paragraph (b), a person who
receives more than one sentence of incarceration
or receives
additional sentences while serving a term of incarceration, must
serve each such sentence, the one after the expiration,
setting
aside or remission of the other, in such order as the National
Commissioner may determine, unless the court specifically
directs
otherwise, or unless the court directs such sentences shall run
concurrently but-
(i)
any determinate sentence of incarceration to be served by any person
runs
concurrently with a life sentence or with a sentence of
incarceration to be served by such person in consequence of being
declared
a dangerous criminal; …”
[12]
See para 20 of the judgment.