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S v Faye (CA & R68/08) [2008] ZAECHC 133 (13 August 2008)

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FORM A




FILING SHEET FOR EASTERN CAPE DIVISION JUDGMENT



PARTIES:

NKOSINOBUBELE FAYE                                           Appellant
and

THE STATE                                                              Respondent

            Case Number:                  CA&R 68/2008
            High Court:                    GRAHAMSTOWN
            DATE HEARD:           6 AUGUST 2008

DATE DELIVERED:                    13 AUGUST 2008


JUDGE(S):                                   JONES J
                                             GROGAN AJ

LEGAL REPRESENTATIVES –

Appearances:
            for the Applicant(s):                 Adv. Xozwa
            for the Respondent(s):                Adv. S. Gounden

Instructing attorneys:
             for the Applicant(s):                Legal Aid Board
            for the Respondent(s):                Director of Public Prosecutions


CASE INFORMATION –
            Nature of proceedings: Criminal Appeal
            Topic:
            Key Words:
           
           


IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION)
                                                                        CASE NO.: CA & R68/08

In the matter between:

NKOSINOBUBELE FAYE                                           Appellant

and


THE STATE                                                              Respondent


JUDGMENT


GROGAN AJ:

[1]      The appellant was convicted in the regional court, Port Elizabeth on two counts of murder. The magistrate sentenced him to 10 years’ imprisonment on the first count and 20 years on the second, the respective sentences being ordered to run concurrently. Leave to appeal against the conviction and sentences having been refused by the magistrate, the appellant appeals with the leave of this Court against the sentences only.

[2]      The charges arose out of two incidents which occurred, respectively, on 24 July 2004 and 27 January 2006. In the first, the appellant stabbed the deceased, who was allegedly relieving himself outside his (the appellant’s) home during what was termed a traditional feast. The appellant claimed that he was defending himself against an attack by the deceased. That claim was rejected by the magistrate, who found that the deceased was highly intoxicated and posed no threat to the appellant. It appears from the evidence that the appellant considered the deceased’s conduct offensive. That, at any rate, is the only possible explanation that emerges from the evidence for the appellant’s action on that day.

[3]      In the second incident, the appellant fatally stabbed a second young man when they crossed paths, apparently fortuitously, after the appellant had attended another traditional ceremony. Again, the magistrate rejected the appellant’s claim that he was acting in self-defence and found on the evidence that the appellant had pursued the deceased until he fell to the ground, then inflicted two knife wounds in his back.

[4]      No explanation appears from the record for why the accused was not charged with and tried for the first offence before he committed the second. When it came to sentencing, the facts before the magistrate, as they are before this Court, were that the appellant had committed two murders in unassociated incidents some eighteen months apart. At the time of the first offence, the appellant was about 22 years of age, and had no previous convictions.

[5]      Each of the offences for which the appellant was convicted fall within the ambit of Part II of the Second Schedule to the Criminal Law Amendment Act 105 of 1997, and thus carry a minimum sentence of 15 years’ imprisonment, unless the court can find that substantial and compelling circumstances existed that warranted imposing a lighter sentence.

[6]      The magistrate, correctly in my view, could find no substantial and compelling circumstances on the evidence before him in respect of either the first or second convictions. However, the magistrate decided that the second offence was more serious than the first and warranted a penalty in excess of the statutory minimum. The magistrate concluded his ex tempore judgment on sentence as follows:

“I do however think that there is a substantial and compelling circumstance or factor and that it a fact of accumulative effect of these two sentences (sic). By that I mean if the Court were to impose the minimum sentences on both counts and, as I understand it, cannot order that minimum sentences run concurrently, then those two sentences would definitely not be proper and just.
“I will in view of that find that as to count 1, there is substantial and compelling circumstances in the accumulative effect of that that sentence would have on count 2.”

[7]      On the basis of this reasoning, the magistrate arrived at what he deemed to be a punishment fit for the appellant, having regard to the gravity of the offences, the personal circumstances (including the relative youth) of the appellant, and the interests of the community. That was an effective term of imprisonment of 20 years.

[8]      In his submissions before this Court, Mr Xoswa, for the appellant, submitted that the magistrate erred by not finding substantial and compelling circumstances for imposing lesser sentences on both convictions. Mr Gounden, for the respondent, supports the sentences.

[9]      I am of the view that, on the evidence, the magistrate committed no misdirection by finding that substantial and compelling circumstances did not exist in relation to the second conviction. Even if the magistrate erred by not finding substantial and compelling circumstances in relation to the first conviction per se (and I do not deem it necessary to make a finding in that regard), the fact is that he imposed a sentence below the statutory minimum.

[10]     I know of no reason why statutory minimum sentences cannot be ordered to run concurrently. The magistrate could have imposed a 15-year sentence for each conviction, and ruled that ten years of the sentence for the first run concurrently with the conviction for the second. However, by whatever permutations the cumulative sentence of 20 years was reached, the question before this Court is whether that is an appropriate and just punishment for a young man who committed two murders in a period of
18 months.

[11]     Mr Xoswa criticised the magistrate for “over-emphasizing the interests of society” and giving insufficient weight to the relative youth of the appellant and the fact that he was a first offender. However, the magistrate was also alive to the fact that the appellant had demonstrated that he is of a singularly aggressive disposition, with little or no regard for the lives of his fellows, and that he showed no remorse for his actions. In my judgment, the magistrate played due and proper regard to the various factors he was enjoined to consider when arriving at the sentence, and cannot be said to have misdirected himself.

[12]     The only other basis for interference by this Court would be that the sentence is significantly disproportionate to the sentence it would have imposed. In the absence of substantial and compelling circumstances, the lightest sentence the magistrate could have imposed was 15 years’ effective imprisonment on either count, with the sentences to be served concurrently. In my view, the additional five years is a fair reflection of the fact that the appellant committed not one murder, but two in unassociated incidents. There is accordingly in my view no basis for interfering with the sentences imposed by the magistrate.

[12]     I would dismiss the appeal.





______________________
J G GROGAN
ACTING JUDGE OF THE HIGH COURT




I agree. The appeal is dismissed.





______________________
J W JONES
JUDGE OF THE HIGH COURT