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IN THE NORTH WEST HIGH COURT, MAHIKENG

CASE NO: CAF 06/16

Reportable: No

Circulate to Judges: No

Circulate to Magistrates: No

Circulate to Regional Magistrates: No

In the matter between:

KGOMOTSO NAPHTALI PHUTSWANE                                            Appellant

and

THE STATE                                                                                    Respondent

 

CRIMINAL FULL BENCH

HENDRICKS J , KGOELE J & GUTTA J

DATE OF HEARING : 26 AUGUST 2016

DATE OF JUDGMENT : 01 SEPTEMBER 2016

COUNSEL FOR APPELLANT : MR.GONYANE

COUNSEL FOR THE RESPONDENT : ADV. MOKONE

 

JUDGMENT

 

HENDRICKS J

 

INTRODUCTION

[1] The Appellant ,as accused number 2, was indicted together with his co-accused (as accused number 1) on charges of murder and robbery with aggravating circumstances in the High Court, North West Division, Mahikeng (“court a quo”). He pleaded guilty to both counts and was sentenced to life imprisonment for the murder count and fifteen (15) years imprisonment for the count of robbery with aggravating circumstances. He appeal, with leave to appeal been granted by the court a quo, the sentence imposed upon him.

[2] The facts and circumstances of this case are set out in the plea explanation in terms of the section 112 (2) of the Criminal Procedure Act 51 of 1977. It reads thus:-

"I the undersigned, Kgomotso Naphati Phutswane, declare as follows:

I am the accused in this matter and made this statement voluntary in my sound and sober senses and without undue influence from any person.

I understand the charges preferred against me and pleaded guilty to count 1 and 2 wit count 1, murder: and count 2, robbery with aggravating circumstances.

I admit the following elements of the offence:

Count 1, murder: I admit on 19 July 2009 at Kanana Village in the District of Bafokeng, I unlawfully and intentionally killed Shemane Isaac Mafoko, an adult male person by throttling him and hitting him with a stone.

With regard to count 2, robbery with aggravating circumstances. I admit the following elements of the offence: That on 19 July 2009 at Kanana Village in the district of Basfokeng, I unlawfully and intentionally assaulted Shemane Isaac Mafoko and then with force too the items from him as appearing in the indictment, his property or the property that was in his lawful possession.

The incident occurred as follows: On Sunday, 19 July 2009, I and Boitumelo Moloto, met the deceased, Shemane Isaac Mafoko, driving in his Opel Meriva, registration VJZ GP, at Rietspruit.

The deceased enquired from us as to whether we know where his nephew Itlageng is residing and Boitumelo confirmed that he knows him.

I and my friend boarded into the deceased’s car and went to look for Itlageng. We went to look for Itlageng first at the tavern but we did not find him. We bought ourselves two bottles of 750 millilitre Black Label and went with it in the car. We drank those beers in the car. While driving on the street, we heard somebody screaming to us, stopping the car and we noticed that it was Itlageng.

The deceased stopped the car and conversed with Itlageng and then drove to Itlageng’s place, Itlageng’s girlfriend told the deceased that Itlageng could not go with us, the deceased always come to take Itlageng to the tavern and get ladies. The deceased then drove with us to the tavern and asked us to organize women for him. At the tavern we bought six bottles of Black Label 750 milliliter and took them to the car.

The deceased suggested that we drank those beers in the car. The suggested that we go to Ceramic tavern in Mogwase with him. We agreed and Boitumelo told him that he is having a female friend at Mabelapudi near Mogwase, he can organize one friend for him. The deceased and Boitumelo drove to Mogwase and went to collect Boitumelo’s friend Georgina at her home.

Georgina came along with Neo, her friend. We went to the tavern and we bought plus-minus eight bottles of 750 milliliter beers and I drank them together with Biotumelo in the tavern while Georgina remained with the deceased in the car outside. We bought Neo a savanna. While so drinking, the deceased approached us in the tavern saying we must leave. Georgina and Neo refused to go with us and we told the deceased to take us home. On our way home we decided to rob the deceased of his car.

At Sun City, Mogwase T-junction, I told the deceased that I want to urinate. The deceased stopped the car and I alighted. When I got back to the car, I found Boitumelo choking the deceased on his neck with a shoelace from behind. I helped him choke the deceased until the deceased got unconscious. We then lifted the deceased out of the car loaded him in the boot. Thereafter we decided to go visit Boitumelo’s friend ar Rankanjale Village. At Pretoria road before we reach, Rankanjale, Boitumelo noticed that the deceased is awake. He stopped immediately and we alighted and we opened the boot by himself and asked us what are doing. I tripped the deceased and the deceased fell on the ground. Boitumelo picked up a stone and hit the deceased on his forehead with it. I and Boitumelo picked up another stone hit the deceased again on his fore head with it. The deceased was bleeding and we loaded him again inside the boot and got into the car again. We made a U-turn and approached the road to Boitekong. While driving, turning to Boitekong, the car tyre burst. We stopped and decided to drive home. We drove to Kanana Village and the car went through the mud and it got stuck. The deceased was still mumbling in the boot and we left the car there and ran into the direction of Rietspruit. On our way we saw the police van and we stopped it, telling the police that we were hijacked by unknown men. The police took us to Rietspruit to open a case and took us home.

Monday morning, 20 July 2009, the police approached me and informed me that they recovered the deceased’s car with the deceased dead in the boot.

I was very shocked and they requested me to make a pointing out and I cooperated with them. The police questioned me until telling them the truth that I, together with my friend are the ones who committed these offences.

I was then arrested for this matter.

On 21 July 2009 the police took me to the magistrate to make a confession and I did it voluntarily.

I admit that the deceased died as a result of the head injuries caused by me hitting him with the stone on his head.

I admit that I did have the direct intention to kill the deceased but by hitting the deceased with the stone on his head, I foresaw the possibility that he could die.

I admit that I did have an intention in the form of dolus eventualis in killing the deceased.

I knew in all offences that my actions were wrongful and unlawful and I could be prosecuted and punished by the law.

I regret my actions and I ask this Honourable Court to exercise mercy in sentencing me.”

[3] It is submitted on behalf of the appellant that the sentence is shockingly severe and excessive and that the court a quo erred in its finding that there are no substantial and compelling circumstances present in this case that warrants a deviation from imposing the prescribed minimum sentence of life imprisonment for the murder count and fifteen (15) years imprisonment for the count robbery with aggravating circumstances. The state conceded that this sentence is severe and grossly excessive. The state also submitted that there are indeed substantial and compelling circumstances present in this case.

[4] The following facts personal and mitigating circumstances were placed on record nl.

“ That the appellant pleaded guilty to both counts.

· That the appellant made a confession before a Magistrate.

· That above mentioned factors in paragraphs 11.1 and 11.2 were a clear sign of remorse and it is worth to note that remorse is an integral part of sentencing and further that appellant did not waste the Court’s time.

· The appellant was a first time offender at time of sentence.

· The appellant spent almost Eight (8) months in custody awaiting trial.

· He was employed and earning R1 200 per month.

· He was Twenty Six (26) years at the time of sentence.”

[5] Sentence is primary in the discretion of the trial court .A court of appeal will not lightly interfere with the exercise of the sentencing discretion by the trial court. A court of appeal will only interfere in limited instance for example where there is a gross irregularity that is committed or where the trial court has exercised its discretion unreasonably or where the sentence imposed is shockingly severe and grossly out of proportion with the crime committed.

See : S v Pillay 1977 (4) SA 531 (A)

S v Kgosimore 1999 (2) SACR 238 (SCA)

S v Matla 2003 (1) SACR 80 (SCA)

[6] In S v Malgas 2001 (1) SACR 469 (SCA) it was held that substantial and compelling circumstances do not have to be exceptional and even the traditional factors which used to be presented in mitigation of sentence still play a role. Furthermore,

"Courts are required to approach the imposition of sentence conscious that the Legislature has ordained life imprisonment (or the particular prescribed period of imprisonment) as the sentence that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances.”

[7] In S v Matyityi 2011(1) SACR 40 (SCA) the following is stated at paragraph [13].

"Remorse was said to be manifested in him pleading guilty and apologizing, through his counsel (who did so on his behalf from the bar) to both Ms KD and Mr Cannon. It has been held, quite correctly, that a plea of guilty in the face of an open and shut case against an accused person is a neutral factor. The evidence linking the respondent to the crimes was overwhelming. In addition to the stolen items found at the home of his girlfriend, there was DNA evidence linking him to the crime scene, pointing-out made by him and his positive identification at an identification parade. There is, moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct but that does not without more translate to genuine remorse. Remorse is a gnawing pain conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one’s error. Whether the offender is sincerely remorseful and not simply feeling sorry for himself or herself at having been caught is a factual question. It is to the surrounding actions of the accused rather than what he says in court that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have true appreciation of the consequences of those actions. There is no indication that any of this, all which was peculiarly within the respondent’s knowledge, was explored in this case.”

[8] I am of the view when considering the personal and mitigating circumstances that there are substantial and compelling circumstances present in this case. The court a quo erred in its finding that there are no substantial and compelling circumstances present in this case. The personal circumstances and mitigating facts of this case viewed cumulatively are indeed substantial and compelling. The appellant also pleaded guilty which is a sign of remorse or contrition. The misdirection made by the court a quo is in my view gross and warrant interference by this Court. The sentence should be set aside and be substituted with an appropriate sentence. Consequently, the appeal against sentence should be upheld.

 

ORDER

Resultantly, the following order is made:

[1] The appeal against sentence is upheld.

[2] The sentence imposed by the court a quo is set aside and is replaced by the following sentence:

“Count 1 (murder) twenty two (22) years imprisonment.

Count 2 (robbery with aggravating circumstances) ten (10) years imprisonment.”

[3] The sentence on Count 2 is ordered to run concurrently with the sentence on Count 1

[4] The Sentence is antedated to 02^nd March 2010.

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R D HENDRICKS

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

I agree

 

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A.M. KGOELE

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

I agree

 

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N. GUTTA

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

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