IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)

(1)	REPORTABLE: YES/NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED

Case no.: A247/2017

In the matter between: -

CLUTCH NXUMALO							Appellant

and

THE STATE									Defendant
JUDGMENT
NKOSI AJ
[1]	The appellant appeared in the Regional Court held at Mhala facing one count of murder read with the provisions of section 51(2),section 52(2)section 52(A) and section 52(D) of the Criminal Law Amendment Act 105 of 1997. It was alleged that upon or about 29 March 2010 and at or near Eidenburg in the Regional Division of Mpumalanga, he unlawfully and intentionally killed Velaphi Lackson Khoza, a male person.
[2]	The appellant refused legal representation offered to him by the Legal Aid Board and elected to conduct his own defence throughout the trial. He pleaded not guilty to the charge and gave a plea explanation. He admitted that on the 29 March 2010 and at Eidenburg, he assaulted Velaphi Lackson Khoza ("the deceased") by beating him with clenched fists and kicking him with booted feet whilst he was lying on the ground. He further admitted the post-mortem report and its contents which revealed that the deceased sustained abrasions above the left eye, a hematoma underneath the scalp and a hematoma subdural. The deceased died from head injuries as a result of the assault.
[3]	The admissions were recorded as formal admissions in terms of section 220 of the Act. Later during the trial the appellant made further admissions. He admitted that the body of the deceased did not sustain any further injuries or bruises after the last witness found him already dead; the deceased was the same person he assaulted as admitted earlier; the identity of the deceased was Velaphi Lackson Khoza; and the last witness found the body of the deceased already dead. Having regard to these admissions, the court correctly noted that the remaining issues to be adjudicated upon were the elements of lawfulness and intention and whether there was any intervening act during the period after the assault and before the deceased's death.
[4]	The State led evidence of three witnesses. These witnesses were not cross­ examined by the appellant and their evidence was not contested in any manner. The appellant chose not to testify or call a witness to testify on his behalf.
[5]	The appellant was warned before sentencing that if found guilty, he would be sentenced to either 15 years imprisonment in terms of Section 51(2) as indicated in the charge sheet or life imprisonment in terms of Section 51(1) of the Criminal Law Amendment Act 105 of 1997.
[6]	The Court concluded by finding that the assault of the deceased was motivated by robbery and accordingly sentenced the appellant to life imprisonment in terms of Section 51(1). The appellant has an automatic right to appeal the conviction and sentence in terms of section 10 of the Judicial Matters Amendment Act 42 of 2013.
[7]	The appellant in his plea explanation testified that, he was at Mbhazima's place on the day of the incident. The deceased arrived with a lady at Mbhazima's place and both were unknown to him. He saw this lady pointing a finger at him whilst saying something to the deceased. At that moment the deceased confronted him and uttered something which he cannot recall. He then assaulted the deceased by beating him with clenched fists several times and kicked him with booted feet whilst on the ground. During the assault the appellant was assisted by Pasnat, a mentally ill male person. He thereafter removed a wrist watch, cellphone and wallet from the deceased and gave these items to the said lady. It transpired during his evidence in mitigation of sentence that, the said lady refused to accept the items removed from the deceased and that he took them home with him. On instruction from Mbhazima, the appellant and Pasnat dragged the deceased out of Mbhazima's house and left him outside the yard as Mbhazima did not want the deceased to die in his house. The appellant confirmed that the assault was not justified and that he had no reason to assault the deceased.
[8]	The State called Ms. Lizzy Ubisi and Mr. William Mbhazima and they both confirmed that the deceased was repeatedly assaulted with clenched fists by the appellant. Ms Ubisi left the scene without witnessing the deceased being kicked. Mbhazima confirmed that the deceased was also kicked several times with booted feet whilst lying on the ground. He thereafter saw the appellant searching the deceased and removing a wrist watch, cellphone and the wallet. He confirmed that the appellant was not provoked in any manner to behave the way he did. He simply pounced on the deceased and assaulted him.
[9]	Constable Thibela, the third State witness, testified that he was called to the scene and discovered the body of the deceased lying on the ground facing up with facial injuries. He then called the pathologists who arrived and took over the scene.

Ad Conviction
[10]	It is common cause that the appellant assaulted the deceased repeatedly with clenched fists and booted feet. The deceased sustained facial and head injuries and succumbed to his death as a result of the assault as confirmed in the post-mortem report. The appellant conceded that the assault was unjustified and that he had absolutely no reason to assault the deceased. There is therefore no doubt that his actions were unlawful. There is further no doubt that his intention was to kill the deceased because he assaulted him not once but repeatedly with clenched fists and booted feet whilst lying on the ground. The deceased could not stand up on his own and attempt to escape. He was dragged outside the house and left outside Mbhazima's yard to die.
[11]	The deceased was found dead early in the morning outside Mbhazima's yard, not far from the gate. The post-mortem report confirmed the injuries sustained which were consistent with the assault. There is no evidence on record suggesting that his death was caused by anything or anyone else beside the assault in question. When considering the evidence in its totality one cannot escape the conclusion that the death was caused by the appellant who unlawfully and intentionally assaulted the deceased causing his death.
[12]	The court correctly found that:

"The brutal way in which the deceased was attacked and beaten up more prominently to the head region of his body to us clearly indicates that the accused must at least have foreseen during the incident that his actions could kill the deceased".

In our view the court was correct in convicting him of murder . However , the court held that the said murder was motivated by robbery and that it formed part of robbery with aggravating circumstances as described in Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 . He was thereafter convicted of murder read with section 51(1) and not section 51(2) of the Criminal Law Amendment Act as indicated in the charge sheet.
[13]	The crucial question to be determined is whether the State proved beyond a reasonable doubt that the appellant committed robbery by removing the wrist watch, cellphone and the wallet from the deceased as he was lying on the ground. The issue of robbery arose from Mbhazima's testimony when he said "they robbed him, grabbed him with his belt around his waist, they searched him and robbed him his watch, some cards and cellphone ".
The court a quo went on to ask Mbhazima the following leadin g question which in my view was highly unfair and prejudiced the appellant (in his defence) more so that, he was not legally represented:

"So you say it would appear as if the reason for the assault was robbery even though you do not know the exact reason or the motive, it would appear as if it was robbrey?"

Mbhazima never made such proposition in his testimony and he responded that he did not know the reason why they had to beat him up. The proposition appears to have been suggested by the presiding magistrate and it later influenced his assessment of the merits and sentence.
[14]	The appellant had earlier stated in his plea explanation that he removed the wrist watch, cellphone and wallet from the deceased and handed these items to the lady who had earlier on arrived with the deceased. This version was not put to Ubisi and Mbhazima to tests its veracity. It was relevant and critical to do so in order to afford the witness an opportunity to admit or deny the appellant's version. As matters stand, the appellant's explanation remains untested and uncontested. The State had a duty, in order to sustain a fair hearing, to test this version during its case because at that stage it had no idea that appellant would not testify or call witness to testify on his behalf.
[15]	I do not agree with the trial court's finding that the murder had aggravating circumstances because of the robbery. The evidence does not support the trial court's conclusion that the deceased was robbed. The court itself said:

"Nobody volunteered any information directly and apparently the police did not know before hand to investigate a charge of robbery with aggravating circumstances as well and you were not charged with some".

Ad Sentence
[16]	I do not agree with the trial court's finding that the appellant committed robbery. The trial court erred in the finding that the murder was with aggravating circumstances and misdirected itself in invoking the provisions of section 51(1) which prescribe a sentence of life imprisonment. The State failed to prove beyond a reasonable doubt that the appellant committed robbery which would have constituted aggravating circumstances.
[17]	Furthermore, the appellant was charged with murder read with section 51(2) which prescribes a minimum sentence of 15 years. The appellant was warned of the possible minimum sentence of 15 years imprisonment during the trial, and before sentencing. According to the presiding magistrate the minimum sentence regime was also explained to the appellant before pleading to the charge and whilst he was still represented by his attorney from the Legal Aid Board. The court may deviate from the prescribed minimum sentence if there are substantial and compelling circumstances justifying such deviation.
[18]	In Thakeli v State it was held that:

"[6] This court has held in numerous decisions that an accused person be apprised from the outset what charge he or she has to meet, so that he or she not only appreciates properly and in good time what the charges are that he or she is facing but also the consequences. In S v Makatu
Lewis JA put it succinctly:
...[A]n accused faced with life imprisonment - the most serious sentence that can be imposed - must from the outset know what the implications and consequences of the charge are. Such knowledge inevitably dictates decisions made by an accused, such as whether to conduct his or her own defence; whether to apply for legal aid; whether to testify; what witness to call and any other factor that may affect his or her right to a fair trial. If during the course of a trial the State wishes to amend the indictment it may apply to do so, subject to the usual rules in relation to prejudice. ' See also S v Ndlovu 2003 (1) SACR 331(S CA)".

[19]	I am satisfied that the appellant was apprised from the outset that he was charged with murder with a minimum sentence of 15 years' imprisonment not with the minimum sentence of life imprisonment. By being so informed, he was afforded an opportunity to decide whether to conduct his own defence or opt for legal representation; to prepare his defence and decide whether to testify and call witnesses to corroborate his testimony; and to prepare evidence in mitigation. I further note that the grounds of appeal do not go as far as to attack the trial court on this issue. He was properly and adequately warned of the provisions of section 51(2) and the consequences thereof if found guilty of murder.
[20]	The appellant's personal circumstances in mitigation of the sentence appear on record. He was 30 years old at the time of sentencing; he went as far as standard 4 at school having dropped out of school because of his violent behavior. He was not married and had no child and dependents; and was unemployed. He did part time jobs for most of his employment history which lasted less than two months. The only exception was his last employment at Carnival city, Boksburg where he worked for almost a year as a cleaner. He has been arrested before but has no previous convictions. He was arrested on the 31 March 2010 and remained in custody for a period which is not clear on record. According to the available information on record, he was already out on bail in May 2011. On the 10 August 2011 he was seen by Dr Weise and Ndala psychiatrists having been referred for observations in terms of section 77(1) and 78(2) of the Act and reported upon in terms of section 79(4) of the same Act. The psychiatrists confirmed that the appellant was fit to stand trial and that at the time of the offence he had the capacity to appreciate the wrongfulness of his actions and his ability to act accordingly was not impaired by mental illness or any defect.
[21]	The court a quo considered all the relevant factors to be taken into account when sentencing an accused and referred to State v Khumalo and said

"And it has been said that punishment must fit the criminal as well as the crime, be fair to society and be blended with a measure of mercy according to the circumstance "

It is further correct as alluded to by the court that in imposing punishment the court must take into account a triad of circumstances namely, the seriousness of the offence , the personal circumstances of the accused, and the interest of the society .
[22]	I find that there are no extenuating circumstances. The appellant pounced on the deceased, brutally and repeatedly assaulted him. He showed no remorse but went on to drag him whilst seriously injured and helpless and left him a distance away from possible help, to die. The assault was unprovoked. He pleaded not guilty and disclosed what happened and never at any stage of the trial, did he say he was sorry and regretting his conduct. Murder is a very serious offence hence the introduction of the Criminal Law Amendment Act to regulate sentencing particularly in circumstances similar to the present case and others in order to protect the society. There is no doubt that the society expects justice and protection from such unlawful conduct.
[23]	I have considered the triad circumstances and cannot conclude that this court is at large in so far as sentencing in terms of section 51(2) is concerned because the appellant was not sentenced in terms of that section. The real issue is whether the minimum sentence of 15 years imprisonment should be imposed or whether substantial and compelling reasons exist for a lesser sentence to be imposed. The appellant is a first offender and is therefore a candidate for the said minimum sentence. In GK v S the learned judge, Rodgers J said:

"The test on appeal in regard to a trial court's finding concerning the presence or absence of substantial and compelling circumstance was left open in S v Malgas 2001(2) SA 1222 (SCA) - see at para 33 where Marais JA in a footnote referred to the decision in S v Homareda 1999 (2) SACR 319(W) at 326 c-d. In the latter case Cloete J (as he then was), with whom Robinson AJ concurred, said that the decision whether or not substantial and compelling circumstances are present involves the exercise of a value judgment, but that a court on appeal is entitled to substitute its own judgment on the issue if it is of the view that the lower court erred in its conclusion" .

[24]	The personal circumstances of the appellant were well dealt with by the presiding magistrate and are well documented on record. They are mitigating circumstances but in my view, considered in totality, do not crystalise into substantial and compelling circumstances to persuade the court to deviate from the prescribed minimum sentence of 15 years' imprisonment. The magistrate materially misdirected himself regarding the imposition of life imprisonment in terms of section 51(1) of the Criminal Law Amendment Act.
[25]	I therefore propose that the following order be made:

1.	The conviction of murder in terms of section 51(1) is set aside and substituted with the following:
The appellant is found guilty of murder read with section 51(2) of Criminal Law Amendment Act 105 of 1997.
2.	The appeal against the life imprisonment sentence is upheld. The sentence is set aside and substituted with a sentence of 15 years' imprisonment.
3.	The substituted sentence is antedated to 13 June 2012.

NE NKOSI
ACTING JUDGE OF THE HIGH COURT

I agree and it is so ordered.

DS MOLEFE
JUDGE OF THE HIGH COURT

Date of Hearing			:	25 October 2018
Date of Judgement			:	6 December 2018

Counsel for the Appellant 		:	Adv. TA Malanguti
Instructed by 				:	Legal Aid South Africa

Counsel for the Respondent		:	Adv. LA More
Instructed by 				:	State Attorney