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[2014] ZAWCHC 9
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Jejise v S (A 197/2013) [2014] ZAWCHC 9 (3 February 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN
Case
No: A 197/2013
DATE:
03 FEBRUARY 2014
In
the matter between:
UNATHI
JEJISE
....................................................
Appellant
AND
THE
STATE
.....................................................
Respondent
Court:
Blignault J et Dlodlo J et Boqwana J
Heard:
27 January 2014
Delivered:
03 February 2014
JUDGMENT
BOQWANA,
J
[1]
The appellant and his co-accused were charged with attempted robbery
(Count 1), robbery with aggravating circumstances (Count
2), murder
(Count 3), illegal possession of firearms (Count 4) and illegal
possession of ammunition (Count 5). He appeared before
Allie J at
trial and was legally represented. He pleaded not guilty to all the
charges and was convicted on all counts together
with his co-accused
on 26 February 2007. On 27 February 2007 he was sentenced to 6 years
imprisonment for attempted robbery; 12
years for robbery with
aggravating circumstances; 16 years for murder (all of which were to
run concurrently); and 5 years imprisonment
for illegal possession of
firearms and 2 years for illegal possession of ammunition (which also
ran concurrently). The effective
term of imprisonment was 21 years.
[2]
Charges brought against the appellant arose from an incident that
occurred on the evening of 07 October 2004 in Khayelitsha
where a
police officer, Constable Chumani Lucwaba (‘the deceased’)
was shot, killed and robbed of his firearm and his
police identity
card. The deceased had been travelling with his wife, their three
children and his colleague, Constable Base (‘Base’)
in a
police van when they were attacked. The assailants attempted to rob
Base who managed to escape. The court a quo found that
the appellant
and his co-accused committed acts of association with each other in
consort with the common purpose to rob and if
necessary to kill.
[3]
In sentencing the appellant the court a quo found that substantial
and compelling circumstances existed which warranted deviation
from
the minimum sentences prescribed in respect of counts 2 and 3. The
court took into account the appellant’s youthfulness,
(appellant was 21 years old at the time the offence was committed),
the lesser role he played in the commission of murder, in that
the
fatal shot was fired by the appellant’s co-accused and the
appellant’s lack of previous convictions. The judge
however
found that deviation could not be so drastic so as to send a wrong
message to the society particularly because these crimes
were
committed against police officers.
[4]
Leave to appeal against sentence only was granted on the basis that
another court could reach a different conclusion on the
cumulative
effect of the sentences taking into account the two years spent by
the appellant in custody before sentence was finally
imposed.
[5]
It appears from the record the appellant also admitted for the first
time at the hearing of his application for leave to appeal
that he
committed the offences and apologised for his actions. This was
however not done before the sentence was imposed.
[6]
As a ground of appeal it was submitted on behalf of the appellant
that whilst the trial judge found that there were substantial
and
compelling circumstances to deviate from the minimum sentences
prescribed she did not give sufficient weight to the appellant’s
personal circumstances.
[7]
In considering an appropriate sentence on appeal, one must not lose
sight of the established principle of law that sentencing
is
pre-eminently a matter for the discretion of the trial court. However
the appeal court may interfere with the sentence imposed
provided the
trial court materially misdirected itself or where the sentence
imposed is shockingly inappropriate or where discretion
has been
improperly or unreasonably exercised. See S v Malgas
2001 (2) SA 1222
(SCA) at paragraph 12 and S v Pillay
1977 (4) SA 531
(A) at 534H –
535A.
[8]
Personal circumstances of the offender are indeed important and were
indeed taken into account by the court a quo. These must
however be
weighed against substantial aggravating factors. Serious crimes were
committed against law enforcement officers who
played an important
role in combating crime in the community. The deceased was murdered
in the presence of his wife and children
and robbed of his firearm
and identity card which could undoubtedly be used to perpetuate
further crimes by the appellant and his
co-accused. Base was rendered
powerless in the presence of community members. The rate at which
police officers are murdered in
South Africa is quite high. They are
murdered and robbed by criminals with the high level of impunity.
[9]
I am in agreement with Eksteen JA’s sentiments in S v Mokoena
1990 (1) SACR 296
(A) at p 299a to 299b, where he said the following:
‘
The
interests of the community must be stressed. Criminals cannot have
the licence to kill policemen in the performance of their
duties.
Respect for the law and for the police will disappear if those
murderers are not properly punished. The community will
lose respect
for the Courts. … The crime, in my view, was certainly a
vicious one, and the fact that the deceased was a
policeman killed in
the execution of his duty does seem to me to be an aggravating factor
which clearly has a bearing on the interests
of society.’
[10]
Given the serious nature of the crimes and the circumstances under
which they were committed, I am of the view that the trial
court took
a balanced view in this instance. The Court recognised the fact that
the appellant presented better chances of being
rehabilitated than
his co-accused. He was a young first offender who was enrolled at
college as an electrical engineering student
when he committed the
crime. It is inexplicable that the appellant who could make a
meaningful contribution in a country in need
of engineers would
involve himself in such criminal actions. It is unfortunate that he
only showed remorse after he had already
been sentenced. It would in
my view be improper for the appeal court to interfere with the
sentence on this basis.
[11]
Turning to the period spent in prison awaiting finalisation of the
trial. This is a relevant factor to be considered when sentencing.
This does not mean that the Court would automatically deduct this
period when sentencing. The extent to which a Court may interfere
with sentence on this basis depends on the facts of each case. The
cumulative effect of the sentence imposed is a key consideration.
There may be instances where a lengthy period spent in prison weighs
heavily as a factor that ought to be taken into account and
failure
to do so might be viewed as a material misdirection. This is however
not one of those cases. The cumulative effect of
the sentences in
this case is not shockingly inappropriate to warrant the interference
of this Court.
[12]
In any event, the effective sentence imposed by the court a quo
demonstrates that the judge properly considered the cumulative
effect
of the sentences. She ordered sentences to run concurrently which
effectively reduced the effective period of imprisonment.
Even if the
2 years spent in prison was not in the trial judge’s mind when
she imposed sentence, I am not persuaded that
she misdirected herself
nor exercised her discretion improperly or unreasonably in any way.
There is accordingly no reason to interfere
with the sentence that
she imposed.
[13]
In the circumstances, I would make the following order:
1.
The appeal is dismissed;
2.
The sentence imposed by the court a quo is confirmed with effect from
27 February 2007.
N
P BOQWANA
Judge
of the High Court
I
agree.
D
V DLODLO
Judge
of the High Court
I
agree and it so ordered.
A
P BLIGNAULT
Judge
of the High Court