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FORM A

FILING SHEET FOR ESTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

 

ECJ:

 

PARTIES:	PLAATJIE BLOEI
	And
	THE STATE
Registrar:	CA&R 357/08
Magistrate:
High Court:	EASTERN CAPE HIGH COURT, GRAHAMSTOWN
DATE HEARD:	11/03/09
DATE DELIVERED:	25/03/09
JUDGE(S):	JONES J, SANGONI J
LEGAL REPRESENTATIVES –
Appearances:
for the Appellant(s):	ADV: Van Der Spuy
for the Respondent(s):	ADV: Robinson
Instructing attorneys:
for the Appellant(s):	GRAHAMSTOWN JUSTICE CENTRE
for the Respondent(s):	DIRECTOR OF PUBLIC PROSECUTION (GHT)
CASE INFORMATION –
·       Nature of proceedings	APPEAL

 

THE HIGH COURT OF SOUTH AFRICA

In the Eastern Cape High Court

Grahamstown

 

CA&R 357/08

Not reportable

In the matter between
PLAATJIE BLOEI	Appellant
and
THE STATE	Respondent

Coram JONES and SANGONI JJ

 

Summary     Appeal – sentence – the regional magistrate imposed a sentence of 5 years’ imprisonment for attempted indecent assault, 20 years’ imprisonment for murder, and 3 years’ imprisonment for arson. In sentencing the accused for the murder, the court made a finding that  there were no substantial and compelling circumstances present which justified a  lesser sentence than the sentence of 15 years’ imprisonment  prescribed by section 51(2) of Act No 105 of 1997, and he found, further, that the aggravating circumstances justified a heavier sentence of 20 years in terms of the proviso to that section –  it was argued that the trial court failed to take the cumulative effect of the three sentences properly into account –it was held on appeal, however, that the regional magistrate had indeed taken the cumulative effect properly into account, inter alia by imposing light sentences for attempted indecent assault and arson, that he had committed no misdirections on sentence, and that in the light of the highly aggravated nature of these offences the sentences were not unreasonably or shockingly severe – the appeal was accordingly dismissed.

 

JUDGMENT

 

JONES J

 

[1]      On 2 May 1999 the charred remains of the deceased, a 55 year old farm labourer named Zenzile Kerba, were found in a burnt out rondavel on Formosa farm, Louterwater, which is a village near Jourbertina in the Langkloof. As a result of the events preceding his death that night, the appellant and three other youths were brought before the regional magistrate, Jourbertina on 4 August 2003 on four charges, namely (1) robbing the deceased of cigarettes, (2) indecently assaulting him by sodomizing him, (3) murdering him by stabbing him with a knife and striking him with various blunt instruments, and (4) arson by burning a rondavel, which was the home of one Serbiena Swartbooi, after placing the deceased’s body inside it. The charge sheet alleged the applicability of the provisions of the Criminal Law Amendment Act No 105 of 1997, which prescribes a minimum sentence of 15 years’ imprisonment for the murder. The appellant and his co-accused pleaded not guilty. Despite the confused and contradictory nature of the evidence of the witnesses for the State, the appellant did not offer any defence to the charges. He made admissions at the close of the State case in which he implicated himself, and he declined to give evidence in his defence.  As a result he was correctly convicted on count 2 of attempted indecent assault, on count 3 of murder, and on count 4 of arson. The magistrate acquitted all four accused persons of robbery on count 1, and he acquitted the other three accused persons on the other charges. The chief reason for these acquittals was the extremely poor quality of the evidence of the State witnesses on count 1 and in respect of their implication of the other accused on the other counts. I should explain that the reason why the appellant was convicted of attempted indecent assault on count 2, and not indecent assault as charged, was because the magistrate had a reasonable doubt about whether or not the deceased was still alive when the act of sodomy was committed.

 

[2]      On 7 August 2003 the magistrate imposed sentence. He gave the appellant a sentence of 5 years’ imprisonment for attempted indecent assault (count 2), and 3 years’ imprisonment for arson (count 4). On the murder charge (count 3), he made a finding that there were no compelling and substantial circumstances as envisaged by section 51(3) of the Act to justify the imposition of a lesser sentence than the minimum sentence of 15 years’ imprisonment and that, on the contrary, the circumstances of the case justified a greater sentence. This induced him to impose the additional 5 years’ imprisonment authorized by the proviso to section 51(2). He therefore imposed 20 years’ imprisonment on count 3. The effective sentence was 28 years’ imprisonment. Nearly four years later, on 11 July 2007, the appellant applied for leave to appeal against his sentence. The magistrate dismissed the application. But on 7 November 2008 a petition for leave to appeal on sentence was granted by the Judge President. That appeal is now before us.

 

[3]        Counsel for the appellant confined himself to a single argument – that the magistrate failed to take the cumulative effect of his three sentences properly in account. The cumulative effect of sentences of 28 years’ imprisonment to be served consecutively is unquestionably a heavy sentence. Nevertheless, a court of appeal has no power to reduce the sentences merely because the judges of appeal think that their cumulative effect is too long. That is because the legislature has ordained that the discretion to impose sentence is to be vested in the trial court, not the judges of appeal. The result is that an appellate court can interfere with sentence only if the trial court has not exercised its discretion in a proper judicial manner. As was said by Scott JA in S v Kgosimore 1999 (2) SACR 238 (SCA) at 241 para 10

 

It is trite law that sentence is a matter for the discretion of the court burdened with the task of imposing the sentence. Various tests have been formulated as to when a Court of appeal may interfere. These include whether the reasoning of the trial court is vitiated by misdirection or whether the sentence imposed can be said to be startlingly inappropriate or to induce a sense of shock or whether there is a striking disparity between the sentence imposed and the sentence the Court of appeal would have imposed. All these formulations, however, are aimed at determining the same thing; viz whether there was a proper and reasonable exercise of the discretion bestowed upon the court imposing sentence. In the ultimate analysis this is the true inquiry. (Compare S v Pieters 1987 (3) SA 717 (A) at 727G - I.) Either the discretion was properly and reasonably exercised or it was not. If it was, a Court of appeal has no power to interfere; if it was not, it is free to do so.  [I can, accordingly, see no juridical basis for the stricter test suggested by counsel; nor is there anything in s 316B of the Act, or for that matter s 310A, to suggest otherwise. (See also S v Anderson 1964 (3) SA 494 (A)). It follows that, in my view, whether it is the Attorney - General (now the Director of Public Prosecutions) or an accused who appeals against a sentence, the power of a Court of appeal to interfere is the same.]

 

[4]      I can find no basis for concluding that the trial magistrate exercised his discretion improperly or unreasonably. His reasons for sentence contain no misdirection of law or fact. He had proper regard to the gravity of these offences, the interests and personal circumstances of the offender, and the legitimate concerns of society. He took into account everything that could possibly be said in favour of the appellant.  He took into account that the appellant was a young man (23 years of age) in fixed employment as a farm labourer. Although not married he had a stable relationship with a young woman by whom he had a child. He was supporting the child. The magistrate regarded the appellant as a first offender because his previous brushes with the law were not for similar offences. He accepted that by making admissions and not setting up a bogus defence the appellant had showed a measure of remorse. He commented specifically that he intended to take into account the cumulative effect of the sentences, and would attempt to show mercy in the imposition of sentence. It is apparent from the sentences imposed that he indeed did so. The arson involved the complete destruction of the complainant’s home and the loss of all her worldly possessions. The motive was apparently to burn the body, which was burnt almost beyond recognition. There can be no doubt that a sentence of 3 years’ imprisonment for an offence of arson as serious as this is a light sentence. It is demonstrably a sentence which shows mercy and which has been tailored to reduce the hardship of the cumulative effect of a long period of imprisonment. So too the sentence of 5 years’ imprisonment for attempted indecent assault. It is difficult to imagine a more serious act of indecency than this, aggravated as it was by the deceased’s condition when it was committed – if not already dead, he was in extremis. This sentence, too, was clearly imposed with the hardship of the cumulative effect of a proper sentence in mind, and demonstrates that the magistrate gave effect to his intention to show compassion.

 

[5]      When considering the cumulative effect of a sentence as long as 28 years, the argument is sometimes made that the unreasonableness of the sentence speaks for itself – a sentence as severe as that is so shocking that it is possible to come to the conclusion, by reason of its length alone, that the trial magistrate could not have exercised his discretion reasonably in a proper judicial manner. That is not a proper way to approach the issue. It is not reasonable to draw an absolute conclusion that the offences could never have been so aggravated as to justify the sentences. In his reasons the magistrate remarked that this was one of the worst cases which had come before him in his sixteen or so years on the regional court bench. He uses words like ‘gruesome’, ‘sick’, ‘senseless’, ‘barbaric’  and ‘unnecessary’ to describe it. These are not exaggerations. They are understatements, and I can readily accept that there can seldom have been worse cases than this that have come before the regional courts of the land. That Saturday evening the appellant, his three co-accused, and four other young people (all State witnesses) were at the appellant’s father’s home on the farm where they worked. Late in the evening the deceased arrived. He was 55 years old, drunk, and lost in the dark. He asked his way to his brother’s home, which was on the same farm. He was told the way, and was asked for a cigarette. He said he had none, but then asked one of the young people for a light. This apparently incensed one or some of them, who decided to assault him and take his cigarettes. He left after they had done so, but they followed him outside. There, he was severely assaulted with pieces of wood and blunt objects. He was felled to the ground, where the appellant got on top of him, put a knife to his throat and killed him as he lay helpless on the ground. He was dragged to an orchard where the appellant cut his trousers off his body and sodomized him. He was then dragged into the complainant’s rondavel – she was not at home that night – where he was set alight and burnt. This was a completely unprovoked attack by a group of young hooligans on a harmless, defenceless, elderly man who was patently incapacitated by liquor, who was wandering about unable to find his way in the dark, who posed no threat, and who was incapable of offering any resistance. He was assaulted and killed for no reason, treated with a measure of uncaring lack of concern and an absence of human compassion that defies understanding. There were no excuses, no extenuating circumstances attendant upon the commission of the crimes, nothing to be said in possible justification for or explanation of the brutal and gratuitous acts of violence and degradation to which the deceased was subjected. I do not accept that the magistrate’s reasons can legitimately be criticized for over-emphasising the gravity of these crimes, or their call for retribution, or the need to protect society from this kind of senseless violence, or the need for sentences which act as a proper deterrent. Long term imprisonment was the only possible sentence, which inevitably means that the personal circumstances of the offender must take second place and that the possibility of rehabilitation outside the four walls of a prison falls away. That is not to say that rehabilitation and personal circumstances may be ignored. Here they were not ignored. But their importance and the weight to be attached to them inevitably become less where long term imprisonment was the only option. When the facts of the case and the aggravating circumstances are weighed against the absence of mitigating factors, the appellant’s personal circumstances, and the legitimate interests of society, I am not able to conclude that the sentence imposed by the magistrate is unreasonably harsh, or shockingly severe, or so startlingly out of proportion to an appropriate sentence that no reasonable court would have imposed it. It cannot be called an unjust sentence. On the contrary, it seems to me to be in harmony with the interests of justice.  A lesser sentence would be inadequate.

 

[6]      In all the circumstances I am not persuaded that the magistrate exercised his discretion on sentence improperly or unreasonably. The appeal on sentence is accordingly dismissed.

 

RJW JONES

Judge of the High Court

13 March 2009

 

SANGONI J            I agree

 

CT SANGONI

Judge of the High Court

         

 said

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