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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: A 182/2019

In the matter between:

MALOMANE THULANE                                                                                         Appellant

And

THE STATE                                                                                                         Respondent

 

MABESELE J AND FRANCIS-SUBBIAH AJ

 

J U D G M E N T

 

MABESELE, J:

[1] The regional court for the Regional Division of Gauteng convicted the appellant of murder, read with section 51(2) of the Criminal Law Amendment Act 105 of 1997.   The appellant was sentenced to 12 years imprisonment and declared unfit to possess a firearm. He now appeal against sentence.  His argument is that his personal circumstances, coupled with the fact the deceased had on two previous occasions stabbed him with a knife and the time that he spent in custody awaiting trial, ought to have persuaded the magistrate to impose a lesser sentence.

[2] Prior to the hearing of this appeal both counsel informed us via e-mails that it would not be necessary for them to present oral argument during lockdown period.  They stand by their heads of argument.  Both have indicated that there was nothing more to be added to their heads of argument and that the appeal should be disposed of on heads of arguments only.  We are satisfied that both parties have sufficiently addressed all the issues in dispute.

[3] It is evident from the record that the appellant attacked the deceased and struck him on the head with a blunt object when the deceased was about to enter his yard.  Subsequently, the deceased stumbled away and fell on the ground after which a foam came out of his mouth and he bled through the nose.  The deceased died as a result of blunt force head injury.  Some days before this incident the deceased had on two occasions stabbed the appellant with a knife.

[4] Section 51(2) of Act 105 of 1997 makes provision for sentence of 15years imprisonment for murder, unless there are substantial and compelling circumstances that justify a, lesser sentence.

[5] The magistrate, in his judgement, correctly emphasised the fact that the personal circumstances of the accused, the seriousness of the crime and the interests of the society should be weighed equally for purpose of sentence.

[6] The magistrate recorded and considered the following personal circumstances of the appellant:  He was 33 years old.  He is single and has are minor child.  He was self-employed and earned R 3000 per month.  He has previous conviction of assault with intent to cause grievous bodily harm, committed in 2012 and for which he was sentenced to eight months imprisonment.  The sentence was suspended for a period of 5 years on certain conditions.  The magistrate also noted that the deceased had on two occasions prior to the day of the incident, stabbed the appellant with a knife but on the day of the incident the appellant attacked the deceased and injured him without provocation.

[7] It is trite that sentencing falls within the discretion of the trial court.  The appeal court can only interfere where the discretion was not properly exercised (S V Pillay 1977 (4) SA 531 (A) at 535 E-F)

[8] The magistrate, having considered the personal circumstances of the appellant, was of the view that the period spent in prison by the appellant, awaiting trial, justify a departure from the prescribed minimum sentence.  He also took into account that the appellant has a previous conviction.  For all these reasons the magistrate correctly sentenced the appellant to a period of 12 years imprisonment.  Therefore, there is no justification to interfere with the sentence imposed.

[9] In the result, the following order is made:

9.1 The appeal against sentence is dismissed.

 

 

                                                ________________________________________

                                                                             M. M MABESELE

                                                                JUDGE OF THE HIGH COURT

                                                GAUTENG LOCAL DIVISION, JOHANNESBURG

 

 

I agree:

 

 

                                                ________________________________________

                                                                              R. FRANCIS-SUBBIAH

                                                               ACTING JUDGE OF THE HIGH COURT

                                                GAUTENG LOCAL DIVISION, JOHANNESBURG

 

 

Date of hearing                                :           23 April 2020

Date of judgment                             :           23 April 2020

 

APPEARANCES

For the Appellant                             :           Adv L Musekwa

Instructed by                                   :           Legal Aid S.A

For the Respondent                        :           Adv.M Van Heerden

Instructed by                                   :           The Director of Public Prosecutions

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