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[2023] ZAWCHC 319
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Jaftha v S (A195/2023) [2023] ZAWCHC 319 (8 November 2023)

IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
no. A195/2023
In the matter between:
WARREN
JAFTHA

Appellant
and
THE
STATE

Respondent
JUDGMENT DELIVERED ON
THIS 8TH DAY OF NOVEMBER 2023
ANDREWS
AJ:
Introduction
[1]
The Appellant, Mr Warren Jaftha, was convicted in Oudtshoorn
Regional Court on one count of attempted
murder, in that the accused
unlawfully and intentionally attempted to kill the complainant by
hitting him with a panga. Following
his conviction, the Appellant was
sentenced to 10 years’ imprisonment. The court
a quo
refused the Appellant leave to appeal against sentence. On 15 June
2023, the Appellant was granted Leave to Appeal against sentence
on
petition.
[2]
The
Appellant pleaded not guilty to the charge of attempted murder and
guilty to assault with intent to do grievous bodily harm;
however,
after the statement in terms of Section 112(2) of the Criminal
Procedure Act
[1]
(“CPA”),
was read into the record, the Appellant indicated that it was not his
intention to assault the complainant.
The court thereafter
applied the Section 113 of the CPA and changed the Appellant’s
plea to one of not guilty. The court,
after hearing the
viva
voce
evidence of the complainant, the medical doctor and the Appellant,
found the Appellant guilty of attempted murder.
The
incident
[3]
The factual matrix of the incident, upon which the Appellant
was convicted can be summarised as
follows. The complainant went over
to Michelle’s house looking for her as he wanted to give her
money for food. He enquired
from the Appellant where she was. The
Appellant informed him that Michelle was not home, swore at the
complainant and called him
a “moffie”. The complainant
whilst walking away, was struck over the head once with a panga by
the Appellant. The Appellant
was thereafter taken to Groote Schuur
where he underwent an emergency operation.
Summary
of the address on Sentence
[4]
The Appellant’s legal representative placed the
Appellants personal circumstances on record,
namely that he was a 26
years old, unmarried and had passed grade 8 at school. The Appellant
was unemployed at the time with no
dependents. He was residing with
his mother.
[5]
It was further placed on record that the incident was not
premeditated. Submissions pertaining
to the rights of the accused and
the victim were made with a view to reminding the court to ensure
that a balance is maintained
and that justice is done when imposing
an appropriate sentence. It was conceded that the offence was
serious. The court was implored
to consider a sentence that would
allow the Appellant to rehabilitate in the community, notwithstanding
his one relevant previous
conviction.
[6]
The prosecution emphasised the unprovoked nature and
seriousness of the offence which culminated
in the complainant ending
up in hospital and had it not been for the swift medical
intervention, the possibility existed that the
complainant could have
succumbed to his injuries. It was also highlighted that the
concession by the Appellant that he felt humiliated
should be viewed
as an aggravating. It was mooted that if someone could so easily have
been humiliated, such person does not belong
in the community and
that society in general should be protected from people such as the
Appellant. The Prosecution also contended
that the Appellant was not
deterred by the condition of his one relevant previous conviction and
as such he is not suitable to
be rehabilitated in the community and
requested the court to impose a lengthy custodial sentence not
shorter than 7 years.
Grounds
of Appeal on Sentence
[7]
The Appellant contended
inter alia
that the Court
a
quo
erred:
(a)
in imposing a sentence that was not appropriately individualised to
fit the crime, the Appellant and the circumstances
of the case;
(b)
in overemphasising the interest of society and the retributive
consideration and took no consideration of the restorative
aims of
punishment;
(c)
by failing to inform itself of all the relevant factors needed to
reach a balanced sentence, including factors that may
reduce the
severity of the crime;
(d)
in finding that long term direct imprisonment was the only
appropriate sentence for the crime of attempted murder and
not
considering other forms of punishment and
(e)
in finding that the attack was homophobic in nature.
Grounds
for opposing appeal
[8]
The Respondent contended that the court
a quo
considered
all the factors of the triad together with the aims of sentence. It
was argued that the court rejected the version of
the Appellant as
being false and that the Appellant was found guilty of a very serious
offence, highlighting in aggravation, that
a serious injury was
inflicted. The Respondent submitted that the sentence imposed by the
court
a quo
was an appropriate sentence and was not shockingly
inappropriate. It was submitted that the Appellant has a propensity
to commit
violent crime and has shown no remorse.
The
Legal Framework
[9]
The
guiding principles for an appeal court has been succinctly set out by
Davis AJA in
R
v Dhumayo and Another
[2]
as follows:
“
…
3.
The trial Judge has advantages- which the appellate court cannot
have- in seeing and hearing the witnesses and in being steeped
in the
atmosphere of the trial. Not only has he had the opportunity of
observing their demeanour, but also their appearance and
whole
personality. This should never be overlooked.
4.
Consequently the appellate court is very reluctant to upset the
findings of the trial Judge.
…
8.
Where there has been no misdirection on fact by the trial Judge, the
presumption is that his conclusion is correct; the appellate
court
will only reverse it where it is convinced that it is wrong.
9.
In such a case, if the appellate court is merely left in doubt as to
the correctness of the conclusion, then it will uphold it.
10.
There may be a misdirection on fact by the trial Judge where the
reasons are either on their face unsatisfactory or where the
record
shows them to be such; there may be such a misdirection also where,
though the reasons as far as they go are satisfactory,
he is shown to
have overlooked other facts or probabilities.
11.
The appellate court is then at large to disregard his findings on
fact, even though based on credibility, in whole or in part
according
to the nature of the misdirection and the circumstances of the
particular case, and so come to its own conclusion on
the matter.
12.
An appellate court should not seek anxiously to discover reasons
adverse to the conclusions of the trial Judge. No judgment
can ever
be perfect and all-embracing, and it does not necessarily follow
that, because something has not been mentioned, therefore
it has not
been considered.
13.
Where the appellate court is constrained to decide the case purely on
the record, the question of onus becomes all-important,
whether in a
civil or criminal case …”
[3]
[10]
It
is trite that sentencing is within the discretion of the trial court
and that a court of appeal will not lightly interfere with
the
sentence imposed. The powers of the court of appeal are relatively
limited to those instances where the sentence is vitiated
by
irregularity or misdirection or where there is a striking disparity
between the sentence passed and that which this court have

imposed.
[4]
In
S
v Pillay
[5]
,
the court set out the correct approach to an appeal against sentence:
“
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.”
[11]
In
sentencing the accused, the court is to have regard to the nature and
seriousness of the offences, the personal circumstances
of the
accused as well as the interest of society
[6]
.
In
S
v Banda and Others
[7]
,
Friedman J stated the following:
“
The
elements of the triad contain an equilibrium and a tension. A court
should when determining sentence, strive to accomplish and
arrive at
a judicious counterbalance between these elements in order to ensure
that one element is not unduly accentuated at the
expense of and to
the exclusion of others. What is necessary is that the court shall
consider, and try to balance evenly, the nature
and circumstances of
the offence, the characteristics of the offender and his
circumstances and the impact of the crime on the
community; its
welfare and concern.”
[12]
In determining a fair, just and proportionate sentence, a court
should have regard and be mindful
of the foundational sentencing
principles that the punishment should fit the crime, as well as the
criminal, be fair to society
and be blended with a measure of
mercy.
[8]
The concept of mercy
was articulately and concisely enunciated by Holmes JA in
Rabie
(supra)
[9]
as follows:
“
(i)
it is balanced and humane state
of thought.
(ii)
it tempers one’s approach to the factors to be considered in
arriving at
an appropriate sentence.
(iii)
it has nothing in common with maudlin sympathy for the accused;
(iv)
it recognises that fair punishment may sometimes have to be robust.
(v)
it eschews insensitive censoriousness in sentencing a fellow mortal,

and so avoid
severity in anger.
(vi)
the measure of the scope of mercy depends upon the circumstances of

each case.”
Issue
to be decided
[13]
The crisp issues to be decided is whether:
(a)
there is any evidence that the victim was assaulted because of his
sexuality and
(b)
the sentence imposed by the court
a quo
is disturbingly
inappropriate or is vitiated by a misdirection.
Considerations
of the court
a quo
[14]
The court
a
quo, in its sentence judgment remarked as follows:
“
The
court in sentencing will look at the triad which is your personal
circumstances, the seriousness of the crime, the society’s

interest …”
[15]
The court further took into account that the Appellant was not a
first offender as he was previously
convicted for a similar offence.
It is furthermore apparent that the court
a
quo
considered the prospect of rehabilitation.
[10]
The court dealt with the rehabilitation consideration within the
context of whether accepting responsibility and showing
remorse.
[16]
The court
a quo
took into account the objectives of sentence
in reference to decided case authorities on this point. The court
considered the seriousness
of the offence and was alive to the
fundamental legal principal referred to in a plethora of case law
that the punishment must
fit the crime.
[17]
The court a
quo
also referring to
S
v Matyityi
[11]
considered
what was referred to as the fourth principle, namely that sentences
have to be victim centred.
[12]
In this regard the court considered that the victim still suffers
with constant headaches. Additionally, the injury has caused

disfigurement that could not be corrected through plastic surgery and
the traumatic effect this has on the moral and confidence
of the
complainant.
[18]
The court
a
quo
found
that the only sentence which will “balance or address or deter”
the Appellant would be direct imprisonment.
[13]
Seriousness
of the offence
[19]
The complainant sustained a serious injury. In this regard, Dr De
Klerk testified that the complainant
had an open wound on his
forehead, measuring 5cm in length with some bony fragments in the
wound.  According to Dr De Klerk,
there was a depression in the
skull which suggested a skull fracture. The doctor further orated
that the injury was an open skull
fracture, which was
life-threatening with what she termed a “
lot
of life threatening complications.”
[14]
Dr De Klerk further opined that if there had been a delay in
administering the necessary medical care, the likelihood existed that

the complainant may have died.
[15]
Further evident from Dr De Klerk’s testimony is that a lot of
force was used to cause the injury which has left the complainant

disfigured. From this the doctor deduced that the object that caused
the injury would have been heavy.
[20]
The nature of the injury was such that the complainant had to undergo
an emergency skull operation.
The depression in the skull was
suggestive of a skull fracture. The life threatening nature of the
injury was explained by the
doctor who orated that:
“
There
are clinical signs that you look for and obviously I felt that
clinical signs were there and that is why he qualified for
a CT
brain. And the risk we have there is bleeding on the brain. Brain
contusions which need then urgent surgery. So once again
this patient
needs to get to George and if the patient has got a brain bleed it
might me (sic) number 1 it might be large and number
2 it might be an
expanded bleed. So you don’t know how much time you have for
surgical intervention to drain the bleeding
and to reduce the
swelling on the brain. And then also afterwards, after an injury
like that like any open fracture, so my
initial management in
casualty was also that of an open fracture, is your risk for
infection with an exposed fracture and also
the exposure of the
brain, the risk for infection, brain abscesses, meningitis, which are
also life threatening illnesses, also
exist.”
[16]
[21]
The complainant attended at Oudtshoorn and then George for a CT brain
scan and was later transferred
to Groote Schuur Hospital where he
received in patient treatment for a period of 5 days.
Homophobic
attack
[22]
The Appellant submitted that the court
a quo
misdirected in
finding that the attack was homophobic in nature. In amplification it
was contended that no mention thereof was
made in the complainant’s
statement. It was furthermore mooted that in order for an attack to
qualify as homophobia, adequate
evidence should be presented to
court. In this regard, it was argued that calling someone a name is
not sufficient proof of hatred
of another’s sexuality.
[23]
The evidence on record is that the Appellant swore at the complainant
and made certain derogatory
remarks about his sexuality. The
Appellant thereafter attacked the complainant with a panga. The
Respondent contended that the
only conclusion that can be drawn from
the accepted facts is that this was a homophobic attack and that the
court
a
quo
was
correct in describing the attack as homophobic. The Respondent
submitted that this attack is analogous to racism and that an
attack
motivated by homophobia is aggravating for the same reasons.
[17]
It was submitted on behalf of the Appellant that the court
a
quo
elevated the nature of the offence to homophobia.
[18]
[24]
I pause here to deal with the exchange between the Magistrate and the
legal representative of the Appellant.
“
Your
Worship I can just say to the court this is the impression I got from
my own client I have actually asked him upfront if this
is the
position with regards to and he has not told this to me before but my
impression of client self Your Worship is that he
is also homosexual,
so they are both homosexual even the accused is homosexual Your
Worship.”
[19]
[25]
The sexual orientation of the Appellant, prior to this moment, was
never raised.  In fact, the complainant
testified that it was
the Appellant who uttered words to the effect:
“
Hy
het vir my
sê
hey
jou moffie fok hier, sorry vir die woord, fok hier weg van die huis
af jy kan mos sien Michelle is nie hier nie.”
[20]
[26]
The question to be answered in this regard is whether there is any
evidence on record that the victim was
assaulted because of his
sexuality. The Respondent conceded that there is no evidence that the
victim was assaulted because of
his sexual orientation. The record is
silent on this aspect.
[27]
In light hereof it behoves this court to deal with the court
a
quo’s
remarks in this regard.
“
The
offence itself is serious and it is coupled with hatred which this
country is facing. Violence against gay lesbian and other…We

have lost many of our members of the community due to this hatred. We
are living in a democratic society. South Africa is a democratic

society one can practice whatever they want to practice especially
with my body. You cannot hate me because I am lesbian. I cannot
hate
you because you are gay that is your personal choice and those are
the thing we need to address in our community.”
[21]
Judicial
Notice
[28]
The Appellant contended, as a ground of appeal, that the court could
not have taken notice of the fact that
‘
[w]e
have lost many members of our community due to this hatred.’
[22]
It is
trite that facts may be judicially noticed even if they are not
general knowledge. There is an overabundance of case law and
judicial
writings dealing with the doctrine of judicial notice, which does not
require restating save to reiterate that judicial
notice can be taken
even in circumstances where facts which are not generally known but
which is readily and easily ascertainable
from sources of
indisputable authority. It was also correctly pointed out by the
Respondent that the court may take judicial notice
of social
conditions and crime.
[23]
[29]
Even if the court may take judicial notice of social conditions and
crime, I am of the view that emphasis
on homophobic attacks were not
pertinent to the facts and or factual findings of this particular
case
in causu
.
Discussion
[30]
The Appellant is not a first offender. He was convicted on 30 October
2016 on a count of assault to do serious
bodily harm and sentenced to
pay a fine of R1500 (One Thousand Five Hundred Rand) or eight (8)
months imprisonment. In addition,
he was sentenced to a further six
(6) months imprisonment, which was wholly suspended for a period of
five (5) years on condition
that he is not again found guilty of a
crime involving violent crime during the period of suspension. It is
evident that the Appellant
committed this offence during the period
of suspension. No application was made to put the suspended sentence
into operation.
[31]
It was contended on behalf of the Appellant that the court
a
quo
disregarded the Appellants personal circumstance. The personal
circumstances of the Appellant were placed on record by his legal

representative however, the court
a
quo
simply
remarked, “
Looking
at your personal circumstances, the seriousness of the crime,
society’s interest…”
[24]
The fact that the court
a
quo
did
not restate it, does not mean that it was not considered as was aptly
enunciated in
Rex
versus Dhlumayo and Others
[25]
that:
“
An
Appellate Court should not seek anxiously to discover reasons adverse
to the conclusions of the trial Judge. No judgment can
ever be
perfect and all-embracing and it does not necessarily follow that,
because something has not been mentioned, therefore
it has not been
considered.”
[32]
It is however apposite to mention that the court
a quo’s
judgment on sentence comprised of approximately 4 pages. The court
dedicated at least one page on remarks that were unrelated to
the
accepted facts and evidence that were placed before it. The Presiding
Officer has to be criticised for wondering off into territory
that
were not chartered during the trial.
Conclusion
[33]
This court on appeal cannot simply
juxtapose
its views and opinions on sentence and then conclude that the
sentence of the court
a
quo
is
inappropriate if it differs from what this court would have done. It
is only when the trial court has exercised its discretion
in an
improper manner or misdirected itself that interference will be
warranted.
[26]
It
is trite that an appeal court will not interfere with the trial
court’s exercise of its discretion in relation to sentence.
[27]
[34]
The test to be applied is whether the trial court in imposing the
sentence exercised its discretion properly
or not.
[28]
I am therefore of the view that the court
a
quo
misdirected itself in overemphasising the homophobic undertones as a
reason for the assault, which was not raised in evidence.
It is
manifest that the court
a
quo
placed disproportionate emphasis on evidence that were not traversed
during the trial. This is a clear misdirection and is deserving
of
censure. As a result, the sentence imposed by the court
a
quo
is
disturbingly inappropriate and warrants interference.
[35]
It is further pellucid that the Appellant has not shown any remorse
and his attempt to plead guilty on a
lesser charge of assault with
intent to do grievous bodily harm is not indicative that he was
remorseful but merely an attempt
at getting a lesser sentence. The
Appellant throughout the trial, failed to accept responsibility.
At
no stage did the Appellant express any compassion towards the
complainant for what had happened and/or for leaving him with a

life-long stark reminder of that fateful, vicious and unsolicited
attack. The victim will forever carry a life-long scar as he
has been
disfigured to such an extent that no amount of plastic surgery will
be able to fix.  I am in agreement with the Respondent
that the
moral blameworthiness of the unprovoked attack and the seriousness of
the injuries sustained by the complainant cannot
be
overemphasised.
[29]
[36]
This court has regard that the Appellant is still relatively young.
However, I am of the view that a sentence
proportionate to the
gravity of the offence and the degree of responsibility of the
Appellant in this matter demands a punitive
sanction of direct
imprisonment, which is to be blended with considerations of the main
purpose of punishment which are deterrent;
preventative, reformative
and retributive.
[30]
[37]
In the circumstances I would uphold the appeal. The sentence imposed
by the court
a quo
is accordingly set aside and replaced with
the following sentence:
The
accused is sentenced to ten (10) years imprisonment of which five (5)
years imprisonment is wholly suspended for a period of
five (5) years
on condition that the accused is not again convicted of murder or
attempted murder or assault with intent to do
grievous bodily harm or
attempt thereto or assault or attempt thereto, committed during the
period of suspension.  The sentence
is to run retrospectively
from the date that sentence was imposed, namely 25 November 2022.
_________________________
ANDREWS,
AJ
I agree and it is so
ordered.
_________________________
FORTUIN,
J
APPEARANCES
:
Counsel for the
Appellant:  Susanna Kuun
Instructed
by:                        Legal-Aid

South Africa
Cape
Town Justice Centre
Counsel for the
Respondent: Advocate S Mhlana
Office
of the Director of PublicProsecutions
Heard
on
:     20 October 2023
Delivered
:
08 November 2023 – This judgment was handed down electronically
by circulation to the parties’
representatives by
email
[1]
Act 51 of 1977.
[2]
1948
(2) SA 677 (A).
[3]
At
705-6.
[4]
State v
Steyn
2014
JDR 0596 (SCA) para 11 where Mhlantla JA stated:
‘
The
imposition of sentence is pre-eminently within the discretion of the
trial court. The court of appeal will be entitled to
interfere with
the sentence imposed by the trial court if the sentence is
disturbingly inappropriate or so totally out of proportion
to the
magnitude of the offence, sufficiently disparate, vitiated by
misdirection showing that the trial court exercised its
discretion
unreasonably or is otherwise such that no reasonable court would
have imposed it.’
[5]
[1977] 4 All SA 713
(A) 717;
1977 (4) SA 531
(A) 535E-G.
[6]
See
S
v Zinn
1969 (2) SA 537
(A) and
Fredericks
v S
[208/11]
[2011] ZASCA 177
(29 September 2011).
[7]
S v
Banda and Others
1991
(2) SA 352
(BGD) at 355 A – B.
[8]
See
S v
Rabie
19975
94) SA 855
(A) at 862 G-H.
[9]
At page 862D.
[10]
Sentence
Record
page 32, page 198 of Appeal bundle at line 20 ‘
You
have come before this court and you have a right as I have mentioned
to silence however in S versus Jantjie of 2011 (sic)
says it is easy
to learn from the behaviour of the accused person during the trial
that a certain type of a sentence will achieve
the objective of
rehabilitating the said offender.’
[11]
2011 (1) SACR 40 (SCA).
[12]
Appeal record, ‘
For
a long time the victims of crime were kind of not considered or
rather ignored when sentence is considered’.
[13]
Sentence Record at page 36, Appeal Record paginated page 202.
[14]
Appeal Record, page 98, lines 3 – 5.
[15]
Appeal Record, page 101, lines 10 – 15.
[16]
Appeal record, pages 101 – 102.
[17]
Respondent’s Heads of Argument, paras 40 – 4.
[18]
Appellant’s Heads of Argument, para 16, page 5.
[19]
Appeal Record, page 191, line 20.
[20]
Appeal record, pages 55 – 56, line 20.
[21]
Appeal Record, pages 199, line 20 – 200 line 10.
[22]
Appeal record, page 200.
[23]
Respondent’s Heads of Argument, paras 46 and 48; Schwikkard PJ
and Van der Merwe SE ‘
Principles
of Evidence’
(Fourth
Ed) page 526 – 527.
[24]
Appeal record, page 198, line 15.
[25]
1948 (2) SA 677
(AD) at 760.
[26]
S
v Rabie
1975 (4) SA 855
(A); See also
S
v Pieterse
1987 (3) SA 717 (A).
[27]
See
S
v Romer
2011 (2) SACR 153
(SCA) at para 22 Petse AJA stated
‘
It
has been held in a long line of cases that the imposition of
sentence is pre-eminently within the discretion of the trial court.

The appellate court will be entitled to interfere with the sentence
imposes by the trial court only if one or more of the recognised

grounds justify interference on appeal has been shown to exist. Only
then will the appellate court be justified in interfering.
These
grounds are that the sentence is
(a)
Disturbingly inappropriate;
(b)
So totally out of proportion to the
magnitude of the offence;
(c)
Sufficiently disparate;
(d)
Vitiated by misdirections showing
that the trial court exercised its discretion unreasonably; and
(e)
Is otherwise such that no
reasonable court would have imposed it.’
See also
S v Hewitt
2017 (1) SACR 309
(SCA); and
S v Livanje
2020 (2) SACR 451
(SCA).
[28]
S v
Matlala
2003
(1) SACR 80
(SCA) at 83d-e;
S
v Shapiro
1994
(1) SACR 112(A)
at 123c-f and
S
v Sandler
2000
(1) SACR 331
(SCA) paras 6 – 9.
[29]
Respondent’s Heads of Argument, para 32.
[30]
See
R v
Swanepoel
1945 AD 444
at p455.