---

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION, PRETORIA

 

(1)     REPORTABLE: NO

(2)     OF INTEREST TO OTHER JUDGES: NO

(3)      REVISED

 

CASE NO: A7/2020

 

In the matter between:

 

SIZWE SIYABONGA NHLABATHI                                                                          Appellant

 

and

 

THE STATE                                                                                                                   Respondent

JUDGMENT

 

LAMONT, J:

[1]          The appellant was charged with murder read together with provisions of Section 51 of the Criminal Law Amendment Act 105 of 1997 in the regional court sitting in Benoni. He pleaded guilty to the charge.

[2]        He admitted that he only stabbed the deceased once on the neck and that he was aware that according to the postmortem, the deceased had been stabbed several times. He also included in his statement that he was in the company of Sihle, Thabo, Lebo and Ayanda. He stated that Sihle had stabbed the deceased's vehicle with a knife and that he took that knife and stabbed the deceased once.

[3]        The appellant's plea of guilty was turned into not guilty. The Section 112(2) of Act 51 of 1977 statement was admitted as evidence by consent and the appellant confirmed all assertions in the statement. Dr Fortunato Beccia was called as a witness and confirmed that the deceased had been stabbed 5 times. However, appellant was adamant that he only inflicted the wound on the neck of the deceased. This wound caused the deceased's death. He insisted that other stab wounds were not caused by him.

[4]          He was convicted of murder read with the provisions of Section 51(1) of the Criminal Law Amendment Act 105 of 1997 on the basis that he was a perpetrator and was also acting in common purpose with the other assailant who inflicted the other stab wounds noted during the post mortem.

[4.1]              Prior to the appellant pleading guilty to the charge, he was advised that the provisions of Section 51(1) were of application. He was so advised immediately to his plea of guilty and at the time of his first appearance.

[4.2]              The appellant knew and understood that he was charged on the basis of Section 51(1) and pleaded guilty. In addition, the appellant was legally represented.

[4.3]              The appellant claims that the conviction of murder in terms of section 51(1) is incorrect in that it was premediated is not clearly mentioned in the charge sheet, and argues that the failure to have it in the charge sheet rendered the trial unfair and claims the appellant suffered irreparable trial-related prejudice which renders the trial proceedings unfair.

[4.4]              In my view, the appellant had a fair trial and even assuming an irregularity as alleged by the appellant did occur, such did not impact adversely on his rights.[1]

 

[5]           He was sentenced to life imprisonment on November 15, 2019.

[6]           The appellant has an automatic right to appeal in terms of Section 309(1) of Act 51 of 1977 the Criminal Procedure Act because was sentenced to life imprisonment by the regional court.

[7]           The appellant now approached this Honourable Court on appeal against sentence only.

[8]           It is trite law that sentencing is a function for the trial court and that a court of appeal has limited powers to interfere with sentences imposed by the trial court.[2]

[9]        The facts clearly indicate that the offence was committed by a group of people acting in pursuance of common purpose and the provisions of under Section 51(1) of the Criminal Law Amendment Act 105 of 1997 apply.

[10]      As stated in S v Malgas 2001(2) SACR 469 (SCA) at P 481 E to F:

''the specified sentences are not to be departed from lightly and for flimsy reason, speculative hypotheses favorable to the offender under sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation, marginal differences in personal circumstances or degrees of participation between co-offenders are to be excluded."

 

[11]      The sentence imposed is commensurate with the gravity of the offences and does not in any way evoke a feeling of shock in light of the following:

[11.1]            The appellant has been convicted of premeditated murder, which is a very serious offence.

[11.2]            The offences involving violence are rife and prevalent in our country and specifically in the area.

[11.3]            The deceased drove away in an attempt to flee from the appellant and his companions. However, the appellant and his group pursued him with another car and managed to get hold of him. The appellant then participated in the murder of the deceased. This an indication of pre-meditation.

[11.4]            The appellant and his companions brutally attacked and stabbed the deceased without even talking to him.

[11.51          These acts of vigilantism must be condemned. Taking the law into one's own hands is to be deprecated.

[11.6]            The deceased did not flight back or defend himself. He only tried to run away.

[12]       The appellant was only 21 years old when he committed the crime.

[13]       Director of Public Prosecutions, Kwazulu - Natal v Ngcobo and Others 2009 (2) SACR 361 SCA at par 25, held that:

"expected to dispense justice. Courts are expected to send clear message that such behavior will be met with the full force and effect of the Jaw".

 

[14]       The appellant gave a different version to the probation officer, which indicates that he is not remorseful.

[15]       It is thus the court's view that the sentence imposed by the trial court is appropriate and just in the circumstances.

[16]       The appeal against the sentence is to be dismissed.

[17]       I make the following order: The appeal is dismissed.

 

 

 

CG LAMONT

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

 

I agree

 

 

F M M SNYMAN

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 

 

COUNSEL FOR APPELLANT:                                     Miss M.M.P. Masete (Cell: 0728057144)

Pearlma@legal-aid.co.za

ATTORNEYS FOR APPELLANT:                                Pretoria Justice Centre, Legal Aid Board

 

COUNSEL FOR THE RESPONDENT:                          Adv. L.A. More (Cell :0609609155)

Email :Lamore@npa.gov.za

ATTORNEYS FOR RESPONDENT:                               Director of Public Prosecution

 

DATE OF HEARING:                                                                                18 August 2020

DATE OF JUDGMENT:                                                                             18 August 2020

(Judgment delivered electronically due to Covid 19 Regulations)

 

---