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S v More (CA 08/07) [2008] ZANWHC 50 (12 December 2008)

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IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION)



CASE NO: CA 08/07



In the matter between:

CHARLES LEBONE MORE Appellant


and

THE STATE Respondent



FULL BENCH APPEAL


HENDRICKS J; LANDMAN J; KGOELE AJ

DATE OF HEARING 31 OCTOBER 2008

DATE OF JUDGMENT 12 DECEMBER 2008


COUNSEL FOR THE APPELLANT MR MOOKELETSI

COUNSEL FOR THE STATE ADV DIKGOPO


JUDGMENT

HENDRICKS J



[A] Introduction :-

[1] The Appellant was convicted in the Mogwase Circuit of the High Court on a count of murder on 31 March 1999 and was sentenced to an effective term of imprisonment of forty five (45) years. He appeals with leave of the court a quo against the sentence only.



[B] Background facts:-

[2] The Appellant is married to Irene More. On the evening of the 10th August 1998 the Appellant and his wife had a quarrel. The following morning they were not on speaking terms when he dropped her at work. There was a telephonic conversation between them during the course of the day.


[3] That afternoon the Appellant wanted to fetch his wife from work and transport her to her parental place where she temporarily stayed, but she advanced excuses. He nevertheless decided later on to go to her parental place. He did not find her there.


[4] Whilst on his way to go and look for her, he saw the lights of an oncoming motor vehicle. He observed how the car stopped at his in-law's place and shortly thereafter drove off again. Being curious to know who it was that brought his wife home, he decided to drive with his car in front of that car and barricaded its way, which he did.

[5] When he alighted, he approached that motor vehicle which was driven by the deceased. He confronted the deceased. Whilst so doing, Daphne, the passenger alighted from the motor vehicle and fled. The deceased also alighted using the same door that Daphne used and he followed Daphne.


[6] The Appellant went around the back of the deceased's motor vehicle and took out his fire arm. He saw the deceased taking cover behind the passenger door which was open. He then fired a shot at the deceased. He changed position and fired another shot at the deceased. The deceased fell and the Appellant ran to the house of his in-laws. He handed his fire arm to his father-in-law and informed him that he had shot the deceased.


[C] Sentence :-

[7] Sentence is primarily in the discretion of the trial court and a court of appeal will not lightly interfere with a sentence imposed by the trial court. Unless it is clear that the trial court did not exercise its discretion judicially or that the sentence imposed is shockingly severe and disproportionate to the facts and circumstances of the case, a court of appeal will not interfere with the sentence.


  1. See- S v Malgas 2001 (2) SA 1222 (SCA); [2001 (1) SACR 469 (SCA)].

  2. [8] It is contended on behalf of the Appellant that the sentence imposed "induces a sense of shock in its harshness and severity".

  • The court a quo took the following mitigating factors and personal circumstances into account:-The Appellant was born on 15 September 1959 and was thirty eight (38) years at the time of commission of this offence.

  • He is married to Irene since 1987. (By then for approximately eleven (11) years.)

  • They have three (3) children of who two are minors and the eldest one attended university and was thus still dependant.

  • He passed Standard 10 as his highest qualification.

  • He was employed and earned approximately R2 000-00 per month.

  • His wife Irene is employed.

  • He was incarcerated for seven (7) months awaiting the finalization of this case.

  • He is remorseful and accepted responsibility after being convicted.

  • Jealousy played a very significant role.

  • He has two previous convictions of assault.


[9] After careful consideration of all the facts and circumstances of this case and bearing in mind the abovementioned personal circumstances, I am of the view that the imposed sentence is disproportionate and severe and it warrants interference by this court.


[D] Conclusion-

[10] In the premises I am of the view that a sentence of twenty two (22) years will be an appropriate sentence.



[E] Order:-

[11] Consequently, I make the following order.

[i] The appeal against sentence succeeds.

[ii] The sentence imposed by the trial court is set aside and is substituted with the following sentence:-

“Twenty two (22) years impriasonment”



R. D. Hendricks


JUDGE OF THE HIGH COURT

I agree.



A A LANDMAN



JUDGE OF THE HIGH COURT


I agree.



A M KGOELE


ACTING JUDGE OF THE HIGH COURT