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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – GRAHAMSTOWN)

CASE NO: CA&R34/10

DATE HEARD: 26/5/10

DATE DELIVERED: 26/5/10

NOT REPORTABLE

In the matter between:

VUYANI NGQIYAZA APPELLANT

and

THE STATE RESPONDENT

JUDGMENT

PLASKET J

[1] The appellant was charged, in the Regional Court sitting in Grahamstown, with murder. He pleaded not guilty but later, after the evidence of two witnesses had been led, he changed his plea to a plea of guilty to culpable homicide. He was convicted on the basis of this plea and was sentenced to nine years imprisonment of which three years was conditionally suspended. He now appeals against this sentence.

[2] The facts, briefly, are that the appellant returned to his house on the evening of 18 August 2007 to find the deceased inside. He confronted the deceased who admitted that he had forcibly entered the house in order to commit theft. A fight ensued during which the appellant struck the deceased on the head with a stick. They struggled over the stick but the appellant managed to hit the deceased’s head against the wall ‘a couple of times’. The appellant stood up, leaving the deceased lying on the floor. A friend of the appellant’s arrived and it was decided to call the police. While the friend was calling the police, the deceased got up and tried to run away. The appellant threw a paraffin lamp at him, causing his clothes to catch fire. The appellant then continued to assault the deceased by hitting his head against the wall.

[3] The post-mortem examination report indicates that the deceased died as a result of multiple blunt force injuries to the head. The chief post-mortem findings are recorded as:

4.1 multiple scalp lacerations

2. bleeding scalp tissue

3. intracranial haemorrhage

4. extensive burns of body

5. no soot in airways.

[4] The appellant admitted that ‘my actions were wrongful when I threw the lamp at deceased whilst he was no longer a danger to me’; that ‘a reasonable person in my position would not have assaulted the complainant any further’; and that after having thrown the lamp at the deceased and thus setting him alight, ‘he was no longer a danger to me when I continued to hit him against the wall’.

[5] The appellant was 24 years old and a first offender. He pleaded guilty after first pleading not guilty. From the probation officer’s report it appears that he worked as an assistant to his father who worked for Lewis Stores. He left school in standard 8. He expressed remorse to the probation officer and said that he had been unable to control his anger when he found the deceased in his home. The appellant sustained a limited number of minor injuries during his struggle with the deceased.

[6] The magistrate took into account the personal circumstances of the appellant. He showed a degree of cynicism concerning the appellant’s remorse inferred from his plea of guilty. He cannot be faulted in this respect. He stated that while he would accept the plea of guilty as an indication of remorse, ‘at the same time the court will not overlook the evidence which had already been presented in court’. That evidence, I may add, painted a much more violent and callous picture of the appellant than his s 112 statement did.

[7] The magistrate also took into account that the appellant had been provoked by finding the deceased in his home. As against these mitigatory factors, the magistrate considered a number of aggravating factors: the fact that the appellant stopped assaulting the deceased and then continued the assault; the severity of the assault gauged by the fact that ‘there is blood all over the house, there is blood on the wall, on the ground’; that weapons were used which, he said, seemed to have been broken in the attack; that the negligence of the appellant was, as he put it ‘really gross negligence’; that he took the law into his own hands; and that the deceased died in a brutal manner.

[8] The probation office had found that the appellant was a suitable candidate for correctional supervision, although the report is, to put it bluntly, a bit on the thin side. The magistrate took the view that, despite the mitigation present, correctional supervision was not an appropriate sentence. He appears to have been influenced in this respect by the brutal and callous nature of the assault on the deceased, particularly the appellant’s indifference to the plight of the deceased when he had set him alight.

[9] A court on appeal does not have a free hand to interfere with the sentencing discretion of a trial court. It may only do so if the trial court has committed a material misdirection or, in the absence of any specific misdirection, if the sentence is so out of kilter with the sentence that the appeal court considers appropriate as to shockingly inappropriate. The position was set out thus by Marais JA in S v Malgas 2001 (1) SACR 469 (SCA), at paragraph 12:

‘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 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 doing so, it assesses sentence as if it were a court of 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 appellate Court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when 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 emphasised that in the latter situation the appellate Court is not at 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. No such limitation exists in the former situation.’

[10] I can find no misdirection on the part of the magistrate. He considered the usual triad of the nature and seriousness of the crime, the personal circumstances of the offender and the interests of society. In my view, he weighted and balanced these considerations properly and appropriately. While one can understand the anger felt by a person in the position of the appellant when he found his home invaded by the deceased, the fact remains that, having for all intents and purposes eradicated any threat posed by the deceased, he then brutally and callously set him on fire and pounded his head against the wall until he killed him; and this he did after having had time to reflect on his earlier fight with the deceased and while his friend was calling the police. In these circumstances, the important and legitimate interest of society that people should not take the law into their own hands – and should be appropriately punished when they do -- comes strongly to the fore.

[11] I am also of the view that the sentence imposed by the magistrate, while perhaps robust, is not shockingly inappropriate, given the circumstances that I have set out above. There are accordingly no grounds for interference on appeal.

[12] In the result, the appeal is dismissed and the sentence is confirmed.

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C. PLASKET

JUDGE OF THE HIGH COURT

I agree.

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G. BLOEM

ACTING JUDGE OF THE HIGH COURT

APPEARANCES

For the appellant: M.M. Xozwa of the Justice Centre, Grahamstown

For the respondent: M. September of the office of the Director of Public Prosecutions, Grahamstown

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