IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

Reportable: NO
Of interest to other judges: NO
Revised: NO

CASE NO: A57/19
12/12/2019

In the matter between:

MOJALEFA NTONA							Appellant

and

THE STATE									Respondent

JUDGMENT

MAKHUBELE J
Introduction
[1]	This appeal, with leave of this court on petition, is against the sentence imposed on the appellant by Regional Magistrate Mr Steyn ('the Magistrate') in the Regional Division of Oberholzer , where the he was arraigned on one 
one count of murder, read with the provisions of section 51(1), alternatively, section 51(2) of the Criminal Law Amendment Act, 105 of 1997 .
[2]	It was alleged that on or about 30 September 2016 and at Blyvooruitzicht, in the Regional Division of Gauteng, the appellant did unlawfully and intentionally kill Aporele Richard Richete, a male person, by shooting him with a firearm and/or similar object.
[3]	It appears from the transcript of the record of proceedings that the appellant was legally represented throughout the trial. It is also evident that he had a fair trial in that at the request of the Public Prosecutor and after charges were put to him, the Magistrate explained the effect of the various statutory provisions in the charge sheet, specifically the prescribed minimum sentencing regime, as well as his rights during and after the proceedings.
[4]	He pleaded not guilty. His defence was an alibi and it was specifically pleaded that at the time in question, he was in Lesotho and not in the Republic of South Africa.
[4]	He was convicted of murder. The trial court could not find evidence that the murder was pre-planned. It is accepted that the conviction is in terms of section 51(2) read with Schedule 2, Part II of the Criminal Law Amendment Act, 105 of 1997. The minimum sentence for a first offender is 15 years. He was sentenced to 16 years imprisonment and declared unfit to possess a firearm.
[5]	The appellant was refused leave to appeal. He petitioned the Judge President in terms of Section 309(a) of the Criminal Procedure Act, 51 of 1977. The petition to appeal the conviction was refused. He was granted leave to appeal the sentence only.

Relevant background facts leading to the conviction and sentence
[6]	The incident occurred outside a tavern where the appellant and the deceased were the only people found outside after a gunshot sound was heard.
[7]	The only eye witness was one Ditaba Bogodi, who testified that he was inside the tavern when he heard the sound of a gun. It took him about three minutes to get outside. He found the appellant, who is well known to him, standing there with a firearm in his hand, and the deceased lying down with a bullet wound in his face.
[8]	Ditaba called other people in the tavern, but the appellant ran away. He was apprehended by community members after some time and was assaulted and ended up in hospital. The police arrested him.
[9]	His alibi that he was in Lesotho at the time was rejected because his passport had no stamp to show that he went through the border post at the relevant time.

Reasons for Sentence
[10]	The trial court could not find any substantial and compelling circumstances to deviate from the minimum sentencing regime, instead, there were more aggravating circumstances. His personal circumstances were taken into account. He is 35 years of age, married with three children who are living in Lesotho with their mother. He does odd jobs at the dumping site and has been in custody for 16 months. He was also assaulted by the public upon his arrest.
[11]	Reading the sentencing record, it is clear that the Magistrate became distracted by a desire to mention the prevalence of the crime committed by foreigners and the powers of the Director-General of Home Affairs to declare them undesirable. He also reflected on what his colleague, who had recently returned from Europe, had told him about the law-abiding citizens of that country and how South Africans disobey the law.
[12]	Having been carried away by these distractions, the Magistrate then acknowledged that all that he was saying was 'in passing'. He then, without inviting submissions regarding an increased sentence, ended the proceedings by stating that 'You are sentenced then to 16 years imprisonment'.

Grounds of appeal
[13]	There are two grounds of appeal. The first one is that the court misdirected itself in finding that there are no substantial and compelling circumstances to deviate from imposing the minimum sentence of 15 years. Secondly, by failing to invite the appellant to make submissions regarding an increased sentence before imposing the sentence beyond the prescribed minimum.

The law
[14]	It is trite that the appeal court can only interfere with the discretion of the lower courts to impose sentences only if:
[14.1]	There was an irregularity during the trial or sentencing of an accused person.
[14.2]	The lower court misdirected itself in respect of the imposition of the sentence.
[14.3]	The sentence imposed by the trial court could be described as disturbingly or shockingly inappropriate.

[15]	The question is not whether the sentence is right or wrong, but rather whether the lower court exercised its discretion properly and judicially.
[16]	The proper approach to sentencing under circumstances where the provisions that created a mandatory minimum sentencing regime, Section 51(3)(a) of Act 105 of 1997 are applicable was formulated by Marais JA in the leading case of S v Ma/gas (11712000) (2001) ZASCA 30; (2001] 3 All SA 220 (A) (19 March 2001).
[17]	In Paragraph 25, Marais JA summarized the proper approach by examining the provisions that created the minimum sentencing regime as well as the specific offences referred to in Part 1 of Schedule 2. With regard to the latter, the learned Judge stated that the court's discretion in imposing sentence has been limited, and not eliminated. The usual factors that a trial court would take into account when sentencing are still applicable, such as proportionality of the sentence to the crime, balancing the various competing interests, and the nature of the offence.

Discussion and conclusion
[18]	The Magistrate indicated that there are more aggravating than substantial and compelling factors that would justify a deviation from imposing the minimum sentence. It is correct that he did not name those factors in the same sentence but taking into account the entire sentencing proceedings, he mentioned that the motive for the killing remains a mystery. It is also apparent from the trial record that the appellant did not show any remorse and offered no clue with regard to circumstances that led to the shooting of the deceased in what the Magistrate described as 'cold blood'. The deviation from minimum sentences remains the discretion of the trial court and I do not think that there has been misdirection here. The Magistrate was alive to factors that would have constituted substantial and compelling circumstances, however, in the exercise of his discretion, he found that the aggravating circumstances far outweigh them.
[19]	The only misdirection in the sentencing proceedings is the Magistrate's failure to invite the appellant to make submissions with regard to the increased sentence above the minimum of 15 years. This entitles this court to intervene.
[20]	Having found that the Magistrate was entitled to impose the minimum sentence, this court's jurisdiction to interfere in the sentence imposed is limited to the increased sentence, which is one year. There is no basis for imposing one more year above the minimum sentence.

Order
[21]	Consequently, I make the following order,
[21.1]	The appeal on sentence is upheld and the sentence of 16 years imposed by the Magistrate is set aside and substituted as follows;
'The accused is sentenced to 15 years imprisonment'

TAN MAKHUBELE
Judge of the High Court

I agree, and it is so ordered,

DS MOLEFE 
Judge of the High Court

APPEARANCES:

Appellant:				Ms MMP Maete
Pretoria Justice Centre

The State:				Advocate S Mahomed
On behalf of the Office of the Director of Public Prosecutions, Pretoria.

Date heard: 13 November 2019

Judgment delivered on:	12 December 2019