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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL DIVISION, PIETERMARITZBURG

 

Case no: AR307/2023

In the matter between:

 

SIBONGISENI MAPHUMULO                                        FIRST APPELLANT

 

THOBANI HUMPHREY MABASO                              SECOND APPELLANT

 

and

 

THE STATE                                                                             RESPONDENT

 

 

Coram:         Balton J and Mossop J

 

Heard:          30 August 2024

 

Delivered:    6 September 2024

 

 

ORDER

 

 

On appeal from: Ntuzuma Regional Court (sitting as the court of first instance):

 

1.              The appeal by both appellants against their sentence is dismissed.

 

 

JUDGMENT

 

 

MOSSOP J (BALTON J concurring):

[1]             The appellants were charged in the Ntuzuma Regional Court with murder and robbery with aggravating circumstances. They were legally represented when they stood trial and pleaded not guilty to both charges. Despite those pleas, both appellants were convicted as charged. The regional court took both counts as one for the purpose of sentence and imposed a sentence of life imprisonment on both the appellants.

 

[2]             As a consequence of that sentence, the appellants have an automatic right of appeal in terms of the provisions of s 309(1)(a) of the Criminal Procedure Act 51 of 1977. They have, however, chosen not to appeal against their convictions but only to appeal the sentences that were imposed upon them.

 

[3]             The facts of a matter obviously have some influence on the sentence that is to be imposed. It is therefore necessary to briefly consider the facts that the regional magistrate found to have been proven.

 

[4]             Mr Sabelo Nxumalo (the deceased) was a driver of a Coca-Cola delivery truck (the vehicle) that was parked outside a Shoprite store in Dube Village, Inanda, KwaZulu-Natal on 18 June 2020 at around noon. His co-employee and companion that day was Mr Welcome Khuzwayo (Mr Khuzwayo), who, despite having a different surname, was his biological brother. The deceased and Mr Khuzwayo were there to deliver cold drinks to the store.

 

[5]             Mr Khuzwayo entered the Shoprite store to initiate that delivery while the deceased remained seated in the vehicle behind the steering wheel. Mr Khuzwayo testified that he estimated that he was away from the vehicle for approximately five minutes and when he returned to it, he observed that both the driver and passenger doors were standing open. He observed the deceased, who was still seated in the vehicle, trying to defend himself from being stabbed with a knife on his left flank by the first appellant. The knife had a blade estimated by Mr Khuzwayo to be 30 cm long.

 

[6]             Mr Khuzwayo was on the passenger side of the vehicle and moved to the driver’s side to assist the deceased. As he did so, he was threatened by two other men with knives who were standing there. He identified the second appellant as being one of those two men. The second appellant had in his possession Mr Khuzwayo’s Nike backpack, which had previously been in the vehicle. Mr Khuzwayo then saw the first appellant fleeing from the passenger side of the vehicle with the deceased’s cellular telephone. The other two men followed suit and also fled.

 

[7]             Mr Khuzwayo stated that he was familiar with the three men from previous trips to deliver cold drinks to the Shoprite store when he generally encountered them in that vicinity. He did not know their names, but he recognised them, and they were thus not total strangers to him.

 

[8]             Six days after the murder of his brother, on 24 June 2020, Mr Khuzwayo observed the three men involved in that crime standing near a set of traffic lights, close to a traffic circle in Dube Village and alerted the South African Police Services to their presence. The investigating officer, Sergeant Mthethwa (the investigating officer), hastened to the scene and Mr Khuzwayo pointed out the first appellant to him, who was then arrested. A knife was found in his possession when he was arrested. Mr Khuzwayo testified that the second appellant and the third man who participated in the murder and robbery were also present.  It is not clear, however, why they, too, were not arrested but it appears that Mr Khuzwayo did not point them out to the investigating officer. The second appellant was arrested later in November of that year.

 

[9]             The investigating officer testified at the appellants’ trial and confirmed that he had, indeed, arrested the first appellant as described by Mr Khuzwayo. He also stated that he had recovered the deceased’s cellular telephone and Mr Khuzwayo’s backpack from two different persons on 26 June 2020. The person who was found in possession of the deceased’s cellular telephone testified at the trial that the appellants had sold it to him on the day that the deceased had died. Later, sometime in July 2020, Mr Khuzwayo confirmed that he was shown, and identified, his backpack and the deceased’s cellular telephone.

 

[10]         The vehicle in which the deceased was seated when he was slain was fitted with an internal video camera. That camera generally recorded what occurred in the cab of the vehicle. It specifically recorded what had happened on that fateful day. The video recording was recovered by the investigating officer and it was dispatched to the Forensic Sciences Laboratory for analysis. Disgracefully, it was never received back from that institution and was consequently not introduced at the trial. The resourceful investigating officer, however, managed to observe the video recording through the co-operation of Coca-Cola, who displayed a copy of their version of the video recording to him. The investigating officer testified that from observing the video recording, he was able to ascertain that the first appellant was wearing the very same clothing on the day of the murder that he had on when he was arrested on 24 June 2020.

 

[11]         The post mortem performed on the body of the deceased revealed that the cause of death was an incisional wound to the chest that passed into the deceased’s abdomen. The diagram that the pathologist completed showed the penetrating wound to be on the deceased’s left flank, as Mr Khuzwayo had observed. The thrust that caused that wound also caused an incision to the deceased’s left kidney.

 

[12]         The appellants advanced what can only be termed a fanciful defence, namely that they were elsewhere but came across the true culprits who perpetrated the murder and robbery and who offered to sell them the items robbed from the deceased and Mr Khuzwayo. The evidence against the appellants was overwhelming and, in the view that I take of the matter, they were correctly convicted. That appears to be acknowledged by the appellants, for, as previously stated, they do not attempt in this appeal to deny their guilt and set aside their respective convictions. 

 

[13]         As regards the sentences imposed upon them, the appellants submit that the regional magistrate ought to have taken account of their personal circumstances, but did not. The point is made that insofar as the first appellant is concerned, he was 23 years old when he committed the offences, had completed grade 11, had a child who was five years’ old who he supported, was employed as a taxi conductor earning between R180 and R250 per week, had spent two years in custody awaiting trial, had no previous convictions and had apparently accepted responsibility for his actions by apologising to the deceased’s family. The second appellant’s personal circumstances were not totally dissimilar: he was 30 years old when he committed the offences, also reached grade 11, but he had three minor children who he supported and had a job, the precise nature of which was not disclosed, nor was his monthly income. The same allegation was made in respect of having assumed responsibility for his conduct by apologising to the deceased’s family for what occurred. But it was also submitted that he had played a minimal role in the murder in that he had not stabbed the deceased.

 

[14]         Both appellants submitted that the regional magistrate had not taken these personal factors into account and that the sentence of life imprisonment imposed upon them was shockingly inappropriate in the circumstances.

 

[15]         An appeal court has very limited grounds upon which it may interfere in the proceedings before a lower court when considering sentence. This is primarily because:

‘…  sentencing is within the discretion of the trial court. An appellate court’s power to interfere with sentences imposed by courts below is circumscribed. It can only do so where there has been an irregularity that results in a failure of justice; the court below misdirected itself to such an extent that its decision on sentence is vitiated; or the sentence is so disproportionate or shocking that no reasonable court could have imposed it.’[1] (Footnotes omitted.)

 

[16]         In S v Malgas,^[2] the court held that:

‘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 … 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”.’

 

[17]         The trial court thus has a discretion when it comes to the imposition of sentence. In S v Hewitt,^[3] Maya DP observed that:

‘An appellate court may not interfere with this discretion merely because it would have imposed a different sentence. In other words, it is not enough to conclude that its own choice of penalty would have been an appropriate penalty. Something more is required; it must conclude that its own choice of penalty is the appropriate penalty and that the penalty chosen by the trial court is not. Thus, the appellate court must be satisfied that the trial court committed a misdirection of such a nature, degree and seriousness that shows that it did not exercise its sentencing discretion at all or exercised it improperly or unreasonably when imposing it. So, interference is justified only where there exists a “striking” or “startling” or “disturbing” disparity between the trial court's sentence and that which the appellate court would have imposed. And in such instances the trial court's discretion is regarded as having been unreasonably exercised.’ (Footnotes omitted.)

 

[18]         The appellants were clearly advised at the commencement of their trial of the fact that, if convicted, they faced a minimum sentence of life imprisonment. They were advised that the court would be obliged to impose that sentence upon them unless there were substantial and compelling circumstances that would justify the imposition of a lesser sentence. They indicated that they were aware of this. The regional magistrate, indeed, then proceeded to impose that minimum sentence upon the appellants after hearing all the evidence, finding that there were no substantial and compelling circumstances to justify a deviation from the prescribed minimum sentence.

 

[19]         The much-referenced matter of Malgas is still the touchstone when it comes to the imposition of minimum sentences prescribed by law. In that matter, the court observed that circumstances may be viewed as being substantial and compelling without them being ‘exceptional’ in the sense of being seldom or rarely encountered.[4] The court held that the legislature, which conceptualised and passed the legislation on minimum sentences, intended that such minimum sentences would be imposed and would not be departed from lightly and for flimsy reasons, which were unable to withstand scrutiny. But the court concluded that, in so legislating, there was nothing to indicate that the legislature intended a court to exclude from consideration any or all of the many factors traditionally and rightly taken into account by courts when sentencing offenders.[5] If such factors are present and are persuasive and weighty, they may necessitate the imposition of a lesser sentence than the prescribed minimum sentence.

 

[20]         Those traditional factors alluded to in Malgas, which usually relate to the specific and unique facts pertaining to the person to be sentenced, thus must still be considered by the court when imposing sentence. In  S v Vilakazi,[6] the Supreme Court of Appeal stated that:

‘It is clear from the terms in which the test was framed in Malgas and endorsed in Dodo that it is incumbent upon a court in every case, before it imposes a prescribed sentence, to assess, upon a consideration of all the circumstances of the particular case, whether the prescribed sentence is indeed proportionate to the particular offence. The Constitutional Court made it clear that what is meant by the “offence” in that context (and that is the sense in which I will use the term throughout this judgment unless the context indicates otherwise) consists of all factors relevant to the nature and seriousness of the criminal act itself, as well as all relevant personal and other circumstances relating to the offender which could have a bearing on the seriousness of the offence and the culpability of the offender.’ (Footnote omitted.)

 

[21]         The approach that should be adopted in imposing sentence was set out in S v Thonga.[7] Etienne du Toit AJ said the following and I quote liberally from that judgment:

‘In my view the punishment must firstly be reasonable, ie it should reflect the degree of moral blameworthiness attaching to the offender, as well as the degree of reprehensibleness or seriousness of the offence. Punishment therefore should ideally be in keeping with the particular offence and the specific offender. It is necessary, secondly, for the punishment to clearly reflect the balanced process of careful and objective consideration of all relevant facts, mitigating and aggravating. The sentence should, thirdly, reflect consistency, as far as is humanly possible, with previous sentences imposed on similar offenders committing similar offences, lest society should believe that justice was not seen to be done. Lastly, the penal discretion is to be exercised afresh in each case, taking the facts of each case and the personality of each offender into account. To all this I would add that the trial Court does not impose sentence in vacuo. It, to the contrary, certainly does so within a certain time frame and at a certain stage in the development of the people(s) of a district, or a province, or a country, or even a continent. The criminal court is also an instrument in the hands of society, applying its laws, reflecting its values and its moral indignation at unlawful conduct, as well as the negative or harmful effect thereof on third parties or society itself. But in a civilised society punishment reflects also the interests of the offender himself. The trial court, in a criminal matter then, functions not in a technical laboratory, but as a living instrument, a vital component of the fabric of society, serving the interests of society and all of its law-abiding members. The criminal court primarily seeks to establish and maintain peaceful co-existence among the members of society within a territory, offering protection to life, limb and property by dispensing criminal justice. Furthermore, during the imposition of punishment, the trial court jealously guards the fine line between raw revenge or emotional punishment and the judicial, reasonable and objectively balanced (effective) exercise of its penal discretion.’

 

[22]         I have had regard to the approach that the regional magistrate took when considering the appropriate sentence. He approached the matter patiently and sought all relevant information before deciding on the appropriate sentence. Reports by a probation officer, Mrs R. M. Smith, were commissioned in respect of both appellants, which were handed in with the consent of the appellants’ legal representative. Those reports dealt extensively, and almost exclusively, with the appellants’ personal circumstances. Far from ignoring those personal circumstances, the regional magistrate considered them thoroughly and specifically mentioned them in his judgment on sentence. He, correctly in my view, did not regard the factors advanced by the appellants as being substantial and compelling. The only point of significance raised by the appellants in this appeal consequently has no basis in fact.

 

[23]         It was suggested in the appellant’s heads of argument that the second appellant played a lesser role in the crimes committed and is accordingly entitled to receive a more lenient sentence than the first appellant, who was the person who actually stabbed the deceased. That argument has no legal substance. The State relied upon common purpose in framing its charge sheets. Common purpose was undoubtedly established, inter alia, in the evidence of Mr Khuzwayo: the three men set out to commit the offence; they were all armed with knives; all played some part in achieving their aims; and both appellants were subsequently actively involved in selling their ill-gotten gains. In those circumstances, there is no basis for imposing a lesser sentence on the second appellant.

 

[24]         I am, in the circumstances, unable to discern any misdirection that would constitute an invitation to us to intervene in the proceedings. It bears mentioning that counsel for the appellants was unable to draw our attention to any actual misdirection. The crime committed was brutal and unnecessary. The life of a human being is beyond value. It is the most precious thing that a person can possess. Depriving another of his right to life is as serious a crime as can be committed. It is so that the first appellant was a first offender but the second appellant had, inter alia, two previous convictions for theft.  The first appellant’s clean criminal record must assume lesser importance when the callousness of their collective conduct is considered. The sentences imposed upon each appellant does not induce a sense of shock in me. It appears to me to be an appropriate sentence, given the enormity of the crime that the appellants committed.

 

[25]         I accordingly would propose the following order:

1.       The appeal by both appellants against their sentence is dismissed.

 

 

 

 

MOSSOP J

 

 

I agree and it is so ordered:

 

 

BALTON J

 

APPEARANCES

Counsel for the appellants:	Ms Z Fareed
Instructed by:	Legal Aid South Africa
	Durban Local Office
	The Marine Building
	22 Dorothy Nyembe Street
	Durban
Counsel for the respondent:	Ms K Essack
Instructed by:	Office of the Director of Public Prosecutions
	Serious Commercial Crimes Unit Durban

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