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Calu v S (CA&R329/2010) [2011] ZAECGHC 86 (1 November 2011)

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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – GRAHAMSTOWN)


Case No.: CA&R329/2010


Date heard: 20 April 2011


Date delivered: November 2011

In the matter between:




KHAYALETHU CALU

Appellant


and



THE STATE

Respondent




J U D G M E N T




DAMBUZA, J:


  1. The appellant was convicted by the Regional Magistrate of East London on a charge of murder and was sentenced to 15 years imprisonment. He now appeals, with leave of the court a quo, against the sentence imposed.


  1. The facts on which the appellant was convicted appear in the evidence of Simphiwe Maxu. On a Sunday evening, 10 September 2006, the appellant, the deceased and other people were at a tavern known as Kista’s Tavern at Tyeni Location, East London. At some stage the appellant pushed a lady referred to in the proceedings only as Zukiswa. Zukiswa reported to the deceased what the appellant had done to her. Subsequent to the report made to him the deceased left the tavern and went outside to relieve himself. MAXU followed the deceased outside and he found talking to the appellant. The two confronted each other and started to manhandle each other. MAXU and MGIDI, who had also come onto the scene, intervened successfully in the altercation. MAXU then left to go and buy cigarettes elsewhere. On his return he found Kista’s Tavern closed. He then proceeded home together with others that were leaving the tavern. The deceased was walking ahead of him. MAXU observed someone approaching the deceased and on reaching him, lifting his arm. Thereafter the deceased turned back to MAXU. It turned out that it was the appellant that had approached the deceased and that he had stabbed the deceased. The appellant thereafter uttered the words “I said I’d be coming back” or words to that effect as he walked past the deceased and MAXU. The deceased died as a result of the single stab wound inflicted by the appellant to his neck.


  1. The appellant’s version, which the magistrate rejected, was that he had stabbed the deceased in self-defence.


  1. In sentencing the appellant the magistrate considered the harm done to the family of the deceased as a result of his death, as the deceased had been the breadwinner in his family, supporting his mother, his unemployed brother and a daughter who was at school at the time. He also considered as mitigating circumstances the appellant’s personal circumstances, including his age of 26 years and the fact that he was an employed first offender who was under the influence of alcohol at the time of committing the offence (he was 27 years old when he was sentenced). The magistrate found that in the context of the seriousness of the offence of murder, and the manner in which it occurred, the mitigating circumstances did not constitute substantial and compelling circumstances.


  1. The basis of the appeal is that the sentence imposed by the magistrate is too severe or is disturbingly inappropriate. It was submitted before us on appeal that the magistrate erred in failing to find substantial and compelling circumstances as the appellant was a first offender who came from a very disadvantaged background, characterized by a complete lack of family units, and only had his first brush with the law at 26 years old. The magistrate failed, so it was submitted, to take into account the fact that the appellant is a good candidate for rehabilitation, that the offence was not premeditated and that the appellant accepted responsibility for the deceased’s death.


  1. I do not agree that the magistrate misdirected himself in his approach when imposing sentence. Firstly I could not find any evidence on the version accepted by the magistrate as to a reason why the appellant killed the deceased. I can only conclude that he killed him without a reason and in cold blood. Although there is no evidence on the record as to the exact time that lapsed from the altercation between the deceased and the appellant and the stabbing of the deceased, I am of the view that the stabbing occurred after a relatively long time after the altercation. The record reveals that MAXU left the tavern and went to buy cigarettes elsewhere. During this time, any anger that would have resulted from the confrontation should have subsided. Even more aggravating is the arrogance displayed by the appellant subsequent to stabbing the deceased. From the remark he made I can only conclude that during the intervening period between the altercation and the stabbing he must have formed the intent of coming back and harming the deceased or at least he was pleased that he had met the deceased and stabbed him. Consequently, I agree with the finding by the magistrate that the fact that the appellant was under the influence of alcohol is outweighed by the gravity of the offence and the manner in which it was committed. The “responsibility” which he now assumes for the deceased’s death, as per the probation officer’s report, must be viewed in the context of the appellant still insisting that he stabbed the deceased in self defence. He therefore does not seem to fully assume responsibility and appreciate the consequences of his conduct. There is no evidence, apart from his relative youth, that he is a good candidate for rehabilitation.


  1. It is trite that the determination of a term of imprisonment is a matter eminently within the discretion of the trial court. Interference therewith by a court on appeal is only justified where the trial court has exercised its discretion unreasonably or has misdirected itself in discharging its duty or where there is a striking disparity between the sentence which the appeal court would have imposed and that imposed by the appeal court. See S v Ncheche [2005] ZAGPHC 21; 2005 (2) SACR 386 (W) e-f; S v Fehtani 2007 (2) SACR 590 (SCA); S v Monyane & Others 2008 (1) SACR 543 (SCA).


  1. I am not persuaded that a substantially reduced or significantly different sentence to that imposed by the trial Court is appropriate in this case.


  1. Consequently,


[9.1] I would dismiss the appeal and confirm the sentence imposed by the trial Court.




_________________________

N. DAMBUZA

JUDGE OF THE HIGH COURT



SCHOEMAN J:


I agree, it is so ordered.



_________________________

I. SCHOEMAN

JUDGE OF THE HIGH COURT