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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)        NOT REPORTABLE

(2)        NOT OF INTEREST TO OTHER JUDGES

 

Case Number: A878/2016

23/5/2018

 

In the matter between:

 

SIYABULELA MDLULI                                                                                               Appellant

 

and

 

THE STATE                                                                                                                   Respondent

JUDGMENT

MOKOSE AJ

[1]       The appellant was granted leave to appeal against both conviction and sentence. The appellant appeared in the Regional Court sitting at Springs on the following charges:

(i)           Count 1 - Kidnapping; and

(ii)          Count 2 - Murder.

 

[2]       The appellant, who was legally represented, pleaded not guilty to both the charges. He was subsequently convicted as charged to 3 years imprisonment in respect of count 1 and 20 years imprisonment in respect of count 2. The sentence in respect of count 1 was ordered to run concurrently with count 2. The appellant was also declared unfit to possess a firearm in terms of Section 103(1) of the Firearms Control Act 60 of 2000.

 

AD CONVICTION

[3]       The issue in this appeal is whether the trial court was correct in holding that there was proof beyond reasonable doubt that the appellant was the person that committed the offences as charged.

 

AD SENTENCE

[4]        The appellant appeals against sentence on the grounds that the sentence induced a sense of shock and was inappropriate in the circumstances

[5]       The charges arise from an incident on 30 December 2015 and at Springs where the appellant unlawfully and intentionally deprived the deceased of his freedom of movement and assaulted the deceased while acting in common purpose with others.

[6]        It is alleged that a group of male people came to the home of the appellant, grabbed him and took him away. He had been accused of stealing plastic chairs. After a while, they returned to the house and demanded that he produce a firearm. When they could not find one, they then left with the deceased, assaulting him all the while. The deceased's stepfather then followed the group and witnessed them setting the deceased alight.

[7]       The onus of proof rests with the state. It is not for the appellant to rebut an inference of guilt by providing an explanation. If the appellant's version is only reasonably possibly true he would be entitled to be acquitted.

[8]        A court has a duty to assess and evaluate the cogency of the evidence of identification. It is not enough for the identifying witness to be honest. The reliability of his observations has to be tested which depends on several factors including the opportunity for observation as to the time and situation, the extent of his knowledge of the accused and the mobility of the scene.

Phetla and Another v The State 2016 ZAGPPHC 554

 

[9]        Heher AJA in the matter of S v Chabalala 2003 (1) SACR 134 (SCA) at page 140 A - B said:

"The correct approach is to weigh up all the elements which points towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt to the accused's guilt. The result may prove that one scrap of evidence or one defect in the case for either party (such as failure to call a material witness concerning an identity parade) was decisive but that can only be on an ex post facto determination and a trial court (and counsel) should avoid the temptation to latch onto one (apparently) obvious aspect without assessing it in the context of the full picture in evidence.

 

[10]      The deceased's mother (Thembeni Masondo,) sister (Jabulile Masondo) and stepfather (Bennet Nsimbeni) all witnessed the appellant tying the deceased to a tree, thus depriving him of his freedom of movement. The post mortem report further indicated that steel wire was found around the waist of the deceased.

[11]      Both Thembeni Masondo and Bennet Nsimbeni testified that the Appellant was the first person to assault the deceased. Bennet Nsimbeni further testified that he had followed the group of people who were assaulting the deceased and witnessed how the deceased was set alight.

[12]      The three witnesses testified that they knew the appellant as he had previously resided in their area. They were also able to point him out at an identity parade. They corroborated each other in all material respects.

[13]      In light of the evidence of the witnesses, I am satisfied that the magistrate did not err in accepting the evidence that the appellant was the perpetrator of the crime beyond reasonable doubt in respect of both counts.

[14]     In view of the finding above, the appeal against conviction is dismissed.

[15]     It is trite law that sentence is pre-eminently at the discretion of the trial court. The court of appeal may interfere with the sentencing discretion of the trial court if such discretion had not been judicially exercised. Marais AJ in the matter of S v Malgas 2001 (1) SACR 469 (SCA); 2001 (2) SA1222 (SCA); [2001) 3 All SA 220 (SCA) para 12 observed that:

"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. Where a material misdirection by the trial court vitiates its exercise of that discretion, an appellate court is of course entitled to consider the question of sentence afresh. In so doing, it assesses sentence as if it were a court of the first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate court is at large. However, even in the absence of material misdirection, an appropriate court may yet be justified in interfering with the sentence imposed by the court. It may do so only where the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as 'shocking', 'startling' or 'disturbingly inappropriate'. It must be emphasized that in the latter situation the appellate court is large in the sense in which it is at large in the former. In the latter situation, it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned. "

 

[16]     When imposing sentence, a court must try and balance the nature and circumstances of the offence, the circumstances of the offender and the impact that the crime had on the community. It must ensure that all the purposes of punishment are furthered.

S v Zinn 1969 (2) SA 537 (A)

 

[17]      The approach was followed by the court in the matter of S v Rabie 1975 (4) SA 855 at 862 G - H where Holmes JA said:

"Punishment should fit the criminal as well as the crime, and be fair to society, and be blended with a measure of mercy according to the circumstances."

 

[18]     The provisions of Section 51(1) of the Act were explained to the Appellant prior to him pleading to the charge. The provisions dictate that if an accused has been convicted of an offence referred to in Part I of Schedule II, he shall be sentenced to life imprisonment unless there are compelling and substantial reasons to justify a deviation from the prescribed minimum sentence. The specified sentences are not to be departed from for flimsy reasons and must be respected at all times.

S v Matyityi 2011 (1) SACR 40 (SCA) at 53 E-F

 

[19]     There is no definition of what constitutes compelling and substantial reasons. The court must consider all the facts of the case in determining whether compelling and substantial circumstances exist. The overall guiding principle is that the sentence must befit the crime.

[20]     The Court a quo had due regard to the appellant's mitigating circumstances being, that he was a 38 years old man with two minor children aged 4 and 7. It was also noted that he had been in custody since his arrest on 1 April 2015. He had no previous convictions.

[21]     The court found that the appellant, who was identified as the ring leader, had carried out a vicious and callous assault on the deceased. When the deceased had tried to remove the first tyre the appellant put another on him to ensure that he dies. Furthermore, the court found that throughout the trial the appellant lacked the insight into the gravity of his actions and showed no remorse.

[22]     In my view, the court a quo did not misdirect itself. The sentence imposed was not inappropriate. The sentence which was imposed is a proper and appropriate sentence in the circumstances of the case.

[23]     Accordingly, the appeal against both conviction and sentence are dismissed.

 

 

MOKOSE AJ

Acting Judge of the High

Court of South Africa

Gauteng Division,

PRETORIA

 

 

I agree and is so ordered

 

 

TUCHTEN J

Judge of the High

Court of South Africa

Gauteng Division,

PRETORIA

 

 

For the Appellant:

Adv M Botha instructed by

Legal Aid SA

Pretoria

 

 

For the State:

Adv JP van der Westhysen instructed by

The Office of the Director of Public Prosecutions

Pretoria

 

Date of Hearing:      22 May 2018

Date of Judgment:

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