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REPUBLIC OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

CASE NO: A565/2010

    REPORTABLE

In the matter between:

 

MORAKA ESTER MAPULE	Appellant
and
THE STATE	Respondent

JUDGMENT

MOKGOATLHENG J

 

(1) The appellant who was accused number 3 in the court-a-quo was arraigned together with Lesley Kgatshe and Sehume Jacob Shimane, accused number 1 and 2 respectively before Coetzee J on three charges namely:

(a) count 1, kidnapping;

(b)  count 2, murder read with section 51(1) of Act 105 of 1997; and

(c) count 3, robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 read with section 51 of Act 105 of 1997.

 

(2) Lesley Kgatshe and Sehume Jacob Shimane were convicted of count 1 and 2 and acquitted on count 3 respectively. Lesley Kgatshe was sentenced as follows;

(i)  count 1, 8 years imprisonment; and

(ii)  count 2, 20 years imprisonment.

 

(3) Sehume Jacob Shimane was sentenced as follows:

  (i)  count 1, 8 years imprisonment; and

  (ii)  count 2,  18 years imprisonment.

 

(4) The court-a-quo ordered that the two sentences imposed on

both should run concurrently resulting in an effective

sentence of 20 years imprisonment in respect Lesley

Kgatshe, and 18 years imprisonment in respect of Sehume

Jacob Shimane.

 

(5) The appellant was convicted on count 1, kidnapping, and in respect of count 2 on the lesser competent charge of being an accessory after fact of murder and was sentenced as follows;

(i)  count 1 kidnapping 8 years imprisonment; and

(ii)  count 2, being an accessory after the fact of murder, 8 years imprisonment;

 

(6) In respect of the appellant, the court-a-quo did not order that

the sentences imposed on her should run concurrently, with the result that the appellant was effectively sentenced to 16 years imprisonment.

 

(7) The appellant appeals with leave of the court-a-quo against the sentence. In her grounds of appeal the appellant contends that the learned judge misdirected himself in that he failed to order that the sentences imposed on her in count 1 and count 2 should concurrently, yet in respect of her co-accused the learned judge ordered that the sentences imposed on them of respect if counts 1 and 2 should run concurrently.

 

(8) The appellant further contends that the learned judge in not ordering that the sentences imposed on her should run concurrently, but in ordering that the sentences imposed on her co-accused should run concurrently, did not proffer any reasons for such differentiation in the imposition of the different sentences.

 

(9) Consequently, the appellant argues that the learned judge failed to properly exercise his judicial discretion regarding the cumulative effect of the sentences imposed on her.

In support of this contention, the appellant’s counsel cited the cases of:

(a) S v Engelbrecht 2011 (2) SACR 540 (SCA);

(b) S v Moswathupa 2012 (1) SACR 259 (SCA); and

(c) S v Kruger 2012 (1) SACR 369 (SCA).

 

(10) Further the appellant contends that the sentence of 16 years imposed on her is shockingly excessive and disturbingly inappropriate having regard to the fact that she was only convicted of kidnapping and of being an accessory after the fact of murder. In support of this argument the appellant’s counsel relied on the case of S v Scott-Crossley 2008 (1) SACR 223 (SCA).

 

THE EVIDENCE

(11) A consideration of the summary of the evidence shows that the appellant was the instigator and master mind behind the deceased’s kidnapping which resulted in his murder.  The appellant solicited the assistance and services of accused number 1 and 2 to kidnap and interrogate the deceased in order to elicit information regarding her stolen motor vehicle as she suspected the deceased of being involved in the theft thereof because she had seen him in the company of a known “car thief Plat Nose.”

 

(12) Accused number 1 on the appellant’s instructions organised a motor vehicle from Mavuso which was used in the kidnapping of the deceased. The appellant borrowed money from Dorling her ex employer to pay Mavuso for the use of his motor vehicle. The appellant was present at the cross-roads at Tarlton when the deceased was interrogated thereafter and bundled into the boot of the motor vehicle and driven to accused number 1’s residence for further interrogation.

 

(13) From the commencement of the kidnapping of the deceased the appellant continuously kept in telephone contact with accused number 1 and 2 regarding the progress made in the interrogation of the deceased from the 4 December to 5 December 2007.

 

(14) Between 20h30 on 4 December 2007 and 01h00 on 5 December 2007 the appellant was in telephonic contact on 14 occasions with accused number 1 who kept her abreast of the interrogation progress.

 

(15) From the telephone record evidence it is clear that between the 4 and 18 December 2007, the date on which the appellant and her co-accused were arrested the appellant telephoned accused number 1 on approximately 50 occasions.

 

(16) The learned judge correctly found that there was no conclusive evidence that the appellant had instructed accused number 1  and 2 to kill the deceased, but that because the appellant continuously kept in telephonic contact with accused number 1 she must have appreciated and foreseen that in order to extract information from the deceased a measure of force, coercion and torture inevitably had to be applied to the deceased to compel him to confess or implicate himself in the theft of the appellant’s motor vehicle, or to divulge the identity of the alleged thieves of the appellant’s motor vehicle.

 

 (17)  The appellant went to accused number 1’s shop in town to speak to the latter after being informed that there was a problem which obviously related to the death and subsequent disposal of the deceased’s body. Teffo was summoned by accused number 1 to his shop. When he arrived there, he found the appellant, accused number 1 and accused number 2. Accused number 1 in the presence of the appellant hired Teffo’s motor vehicle for an hour purportedly to drive the appellant to a hotel. The vehicle was returned after 4 hours at 7pm on 5 December 2007 after being used to transport the deceased’s body in order to dump same in the veld.

 

(18) The learned judge found that the appellant and her co-accused on a mere unreasonable suspicion, despite the police being seized with the investigation of the theft of the appellant’s motor vehicle, took the law into their hands and set off the chain of events which resulted in the kidnapping, and death of the deceased.

 

(19) The appellant instead of being outraged by the death of the deceased, associated herself therewith, by being part of an elaborate scheme to dispose of the deceased’s body and thereby subvert the course of the law. Even after being confronted by the deceased’s mother about deceased’s whereabouts the appellant did not volunteer any information.

 

(20) The deceased’s mother testified that the deceased was 17 years old at the time of his death, was a grade 10 student a devout Christian, and a sensitive caring and loving person who showed respect for his elders. His death was a terrible shock to her. The shock was so great that she had to go to a hospital to be treated for serious depression. She still takes medication for this problem.

 

(21) The nonchalant callousness and perfunctory inhumane dumping of the deceased’s body in the veld with her connivance renders the appellant complicit in a serious infraction of obstructing and defeating the interests of justice.

 

REASONS FOR DECISION BY SUPERIOR COURT IN A CRIMINAL TRIAL

(22)  It is correct that the learned judge did not expressly furnish reasons regarding his order that the sentences imposed on accused number 1 and 2 should run concurrently, nor did he expressly furnish reasons why he did not order the sentences imposed on the appellant to run concurrently.

 

(23) Section 280(2) of Act 51 of 1977 provides:

“If an accused is sentenced to several punishments, such punishments, when consisting of imprisonment, shall commence the one after the expiration of the other unless the court directs that such punishment shall run concurrently.”

 

(24)  In terms of section 145 of Act 51 of 1977 “A judge presiding at a criminal trial in a superior court shall –

(a) where he decides any question of law, including any question under paragraph (c) of the proviso to section 145(4) whether any matter constitutes a question of law or a question of fact, give the reasons for his decision;

(b) whether he sits with or without assessors, give the reasons for the decision or finding of the court upon any question of fact;

(c) where he sits with assessors, give the reasons for the decision or finding of the court upon the question referred to in paragraph (b) of the proviso to section 145(4);

(d) where he sits with assessors and there is a difference of opinion upon any question of fact or upon the question referred to in paragraph (b) of the proviso to section 145(4), give the reasons for the decision or finding of the member of the court who is in the minority or, where the presiding judge sits with only one assessor, of such an assessor.”

 

(25) The respondent’s counsel rightly submitted that the trial court was under no legal obligation to explain why the concurrent running of the sentences imposed on the appellant was not ordered. Section 280 (2) of Act 51 of 1977 does not oblige the court to give reasons for ordering concurrency. The court has a discretion in terms of section 280(2) of Act 51 1977 in ordering that sentences should run concurrently guided by the consideration of the circumstances of the case and the cumulative effect of sentence.

 

(26) Counsel further argued that the main determinant in the running of the concurrency of sentences is not whether it was ordered in respect of the appellant’s co-accused; what is important is what  the cumulative sentence imposed on all accused persons amounted to. See S v Mate 2000 (1) SACR 552 (T); and S v Kwenamore 2004 (1) SACR 385 (SCA).

 

(27) In my view the intervention by this court is not justifiable having regard to the seriouseness of the offences the appellant was convicted on. In Daniel William Mokela v The State (135/11) [2011] ZASCA 166 (29 September 2011), the court remarked: 

“It is well-established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served. The limited circumstances under which an appeal court can interfere with the sentence imposed by a sentencing court have been distilled and set out in many judgments of this Court.”

…”Section 280(2) of the Criminal Procedure Act 51 of 1997 provides a sentencing court with a discretion when sentencing an accused to several sentences to make an order that such sentences run concurrently. There are a number of reasons which a sentencing court can legitimately take into account in this regard. One such ground is the cumulative effect of such sentences. It follows that a court of appeal can only interfere with the exercise of such a discretion by the sentencing court where it is satisfied that the sentencing court misdirected itself, or did not exercise its discretion properly or judicially. Absent such proof, the appeal court has no right to interfere with the exercise of a discretion by a sentencing court…”

 

(28) In my view the Learned Judge’s omission to expressly furnish reasons for not ordering the appellant’s sentences not to run concurrently does not mean that he did not consider the issue; this conclusion is inescapable having regard to the remarks of the Learned Judge that the appellant was the instigator of the kidnapping and has shown no remorse.

 

(29) A trial court is not obliged where it has convicted an accused of multiple offences and imposed multiple sentences to order that one or more of the sentences should run concurrently, this depends on the facts of the case.

 

(30) While justice decrees that in cases where the mitigating factors are the same there should be consistency in sentencing, but that individual personal circumstances and the perpetrators roles in the commission of the offences can cause differentiation in sentences this aspect must not be lost sight of. S v Ferreira and Others 2004 (2) SACR 454 (SCA).

 

(31)  While the circumstances in the disposal of the body in S v Scott-Crossley 2008 (1) SACR 223 (SCA) were certainly more dramatic than in casu, that in no way depicts the murder in casu as less serious. If anything, the appellant in casu is more liable as she instigated the kidnapping which resulted in the deceased murder, something which was not the case in the Scott-Crossley matter.

 

(32) Regarding sentence the learned judge took into consideration the personal circumstances of the appellant,  and the aggravating evidence of the deceased’s mother, and the fact that the appellant was in essence instrumental in initiating the genesis of the deceased’s kidnapping which resulted in his murder. The deceased was deprived of his liberty. He was kept in accused 1’s room for many hours. Before that he was driven around in the boot of a motor vehicle.  He was treated in the most inhumane and undignified manner.

 

(33) After the appellant was informed of the deceased’s death, she had ample time to reflect and dissociate herself her co-accused’s conduct, instead she colluded with accused number 1 and 2 and assist them to conceal the deceased’s death and the disposal of his body by dumping same in the veld to evade detection and arrest.

 

(34) The appellant showed no remorse and refused to take responsibility for her conduct, she laughed at the deceased’s mother and mocked her. She never apologized to her for what had happened. She made life miserable for her.

 

(35) The personal circumstances of the appellant must be weighed against the seriousness of the crimes and the interests of society. When these factors are considered against the appellant’s personal circumstances my view is that those factors outweigh the appellant’s personal circumstances.  The interests of society demand that heavy punishment should be meted out to persons who commit such hideous and cruel crimes.

 

(36) In my view the learned judge erred on the side of leniency in regard to the imposition sentence on the appellant. The offences the appellant was charged with are very serious and a scourge in our society.  A lighter sentence than the one imposed on the appellant would have been disturbingly inappropriate.

 

(37) The sentence of 8 years in respect of kidnapping and 8 years in respect of being an accessory after the fact of murder under the circumstances of this case cannot be said to be inappropriate or that it induces a sense of shock, or is beyond the range of sentences imposed in similar cases.

 

THE ORDER

(38) The appeal against the sentence is dismissed.

Dated the 13 day of January 2013 at Johannesburg

MOKGOATLHENG J

JUDGE OF THE SOUTH GAUTENG HIGH COURT

 

I agree it is ordered

BORUCHOWITZ J

JUDGE OF THE SOUTH GAUTENG HIGH COURT

 

I agree

SPILG J

JUDGE OF THE SOUTH GAUTENG HIGH COURT

 

 

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