South Africa: North Gauteng High Court, Pretoria

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVSION, PRETORIA)

 CASE NO: CC 55/14

DATE:  23/3/2016

Not reportable

Not of interest to other judges

Revised

In the matter between

JABULANI JOSEPH LUKHELE                                                                       APPLICANT

and

THE STATE                                                                                                   RESPONDENT

JUDGMENT

(LEAVE TO APPEAL)

VAN OOSTEN J:

[1] This is an application for leave to appeal against a sentence of 15 years’ imprisonment imposed in respect of murder and the contravention of the conditions of a protection order.

[2] In support of the contention that another court may reasonably impose a lesser sentence, counsel for the applicant once again made reference to the personal circumstances of the applicant and the fact that he had shown remorse in pleading guilty. I have duly considered all those factors as well as the seriousness of the crime of murder which was committed in the course of a tumultuous relationship between the applicant and the deceased.

[3] It is trite that sentencing remains pre-eminently within the discretion of the sentencing court. In Mokela v The State 2012 (1) SACR 431 (SCA) para [9], Bosielo JA put it thus:

‘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. See S v Pieters 1987 (3) SA 717 (A) at 727F-H; S v Malgas 2001 (1) SACR 469 (SCA) para 12; Director of Public Prosecutions v Mngoma 2010 (1) SACR 427 (SCA) para 11; and S v Le Roux & others 2010 (2) SACR 11 (SCA) at 26b-d.’

[4] This is a serious case of murder. By shooting and killing the deceased the applicant acted in a manner that is unacceptable in any civilised society that ought to be committed to the protection of the rights of all persons, including women. Intimate partner violence remains alarmingly prevalent as a serious social problem in our society and deterrent sentences are called for (see Jimmy Sebone Seemela v The State (20508/14) [2015] ZASCA 41 (26 March 2015)).

[5] When viewed against the objective gravity of the offence (S v Vilakazi 2012 (6) SA 353 (SCA) para [58]) I am of the view that the sentence imposed is fair and proportionate to the offence the appellant has been convicted of.

[6] In my view no reasonable prospects of a successful appeal exists and it follows that leave to appeal ought to be refused.

[7] In the result leave to appeal is refused.

_________________________

FHD VAN OOSTEN

JUDGE OF THE HIGH COURT

DATE OF HEARING                                                          23 MARCH 2016

DATE OF JUDGMENT                                                      23 MARCH 2016