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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NUMBER: A233/18

20/9/2019

 

In the matter between--

 

PETROS NDONOE NGCOBO                                                                                 Appellant

 

and

 
THE STATE                                                                                                                Respondent

JUDGMENT

SNYMAN (AJ)

[1]        This brutal crime resulted in a father and mother being left without their child, children without their father, grandchildren without their grandfather and siblings without their brother, all for the price of a cellular phone to sell the property and buy Nyoape drugs for the appellant with the money.

[2]        This is an appeal against the sentences imposed on the appellant after he pleaded guilty to all the charges and subsequently was found guilty on 13 June 2016 In the Regional Division of Gauteng.

[3]        Leave to appeal against his sentence was granted on petition.

 

The offences committed and sentence received

[4]       The appellant pleaded guilty to the following crimes:

a.       First Charge: Robbery with aggravating circumstances in that on the 28^th of September 2015 and at Vereeniging It the Regional Division of Gauteng, he intentionally and wrongfully assaulted Khotso Sipho Monaheng by searching him and then with force took his items as per the charge sheet, which property was lawfully in his possession, aggravating circumstances being that a knife was used.

b.       Second Charge: Robbery with aggravating circumstances in that on the 28^th of September 2015 and at Vereeniging in the Regional Division of Gauteng, he intentionally and wrongfully assaulted Thokoloho Mofokeng by searching him and then with force took his items as per the charge sheet, which property was lawfully in his possession, aggravating circumstances being that a knife was used.

c.       Third Charge: Murder in that on the 28^th of September · ·10 and at Vereeniglng in the Regional Division of Gauteng, he intentionally and wrongfully killed Thokoloho Mofokeng by stabbing him.

 

[5]        The appellant was sentenced in terms of section 51(3) of Criminal Law Amendment Act, 105 of 1997 (Criminal Law Amendment Act) as follows:

 

"a.  Count 1: A period of 10 (TEN) years imprisonment;

b.   Count 2: A period of 1O (TEN) years imprisonment;

c.   Count 3: A period of 20 (TWENTY) years imprisonment;

 

The Court ordered in terms of Section 280(2) of the Criminal Law Amendment Act that the sentence imposed on Count 2 run concurrently with the sentence imposed on Count 1."

 

The Court also ordered that the appellant remains ex lege unfit to possess a fire-arm in terms of Section 103(1)(g) of the Firearms Control Act, 60 of 2000.

 

[6]       The crimes committed by the appellant took place against the following factual background.

[7]       The two victims were walking in the veld minding their own business whilst looking at the deceased cellular phone. In his section 112(2) statement in terms of the Criminal Procedure Act, 51 of 1977, the appellant states that he saw the two males, but they did not see him as their attention was drawn to the deceased's cellular phone.

[8]       The appellant mentions that he was under the influence of Nyaope. He was with his younger brother when he committed the crime.

[9]       The appellant ran up to the two males, grabbed the first victim's money out of his pocket and demanded the cellular phone The deceased refused to hand over his cellular phone and the appellant proceeded to stab him five (5) times in his torso. After he had stabbed the deceased, the appellant grabbed the deceased's cellular phone and ran away

 

The pre-sentence report

[10]     The pre-sentencing report (the report) indicated that the deceased was stabbed three times on his chest, two times in his ribs and heart and at his back, thus a total of five (5) times.

[11]     The appellant reported to always keep in his pocket for self-defence the knife which he used to commit the murder.

[12]     The pre-sentencing report further indicated that the deceased's older brother suffered a heart attack after hearing of his brother's murder. He also became an alcoholic, has anger problems and finds it hard to steep at night unless he takes anti-depressant medication. The deceased’s grandson also suffered from the tragic loss as the deceased and his grandson had a special bond. The grandson was present when the family of the deceased was informed of his death and the grandson accompanied his family to the scene of his grandfather' s death.

[13]      The report indicated that the reason for the crimes were that the

 appellant wanted to buy drugs. The appellant started using drugs from a very early stage in his life.

[14]      Both the Probation Officer and the Social Worker recommended direct imprisonment on the following basis:

 

"The offence committed is very serious in nature. The accused does not seem to have the understanding of the gravity of the offence and the harm done to the families and society at large. He has previous convictions whereby he was supposed to have learned from his experience in a correctional facility. The case in question is a clear indication of lack of social skills and disregard of constructive social norms on his part. Society has a right to be protected and the accused needs to be helped in a controlled environment away from the community in order for justice to take place. The punishment needs to fit the crimes, taking into consideration the needs to the offender as well as those of the complainants."

 

Criminal Law Amendment Act 105 of 1997

[15]     In terms of section 51(2) of the Criminal Law Amendment Act 105 of 1997, read with part 2 of Schedule 2, the offences of robbery with aggravating circumstances attracts the minimum sentence of imprisonment for 15 years each. unless the Court is able to find the existence of substantial and compelling circumstances which will justify the imposition of a lesser sentence than prescribed.

[16]     The Supreme Court of Appeal has considered the meaning and application of u substantial and compelling circumstances'' in the matter of S v Malgas 2001 (2) SA 1222 (SCA) as follows:

 

[12]     ..... 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 tr/al 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.

           …..

[18]     Here lies the nub. Somewhere between these twa extremes the intention of the Legislature is located and must be found. The absence of any pertinent guidance from the Legislature by way of definition or otherwise as to what circumstances should rank as substantial and compelling or what should not, does not make the task any easier. That it has refrained from giving such guidance as was done in Minnesota from whence the concept of 'substantial and compelling circumstances' was derived is significant. It signals that it has deliberately and advisedly left it to the courts to decide in the final analysis whether the circumstances of any particular case call for a departure from the prescribed sentence ....''

 

Substantial and compelling circumstances

[17]     It was placed on record in the Court a quo that the appellant has the following previous convictions:·

a.         On 15 October 2009 the appellant appeared before the Vereenlging Court on charges of housebreaking with intent to steal and theft. The appellant was sentenced to a period of 12 months' imprisonment.

b.         On 9 October 2015 the appellant was found guilty of similar offences at the same scene and under the same circumstances.

c.         The appellant was on parole when he committed the current offence.

 

[18]       The following personal circumstances of the appellant were placed on record in the Court a quo: The appellant was 25 years old when he was sentenced and 24 when the crimes were committed. The appellant was relatively young, had a long life ahead of him and was not above rehabilitation. He was raised by both parents who passed away during the years 2003 and 2011 respectively. He was the second born in the family of 4 siblings who were all born out of wedlock. His sister took over their guardianship after the death of their parents. He was affected negatively by the death of his mother and this led to attitude change and socialising with friends of unsavoury characters. He went to school up to Grade 8. He had previous convictions, namely, housebreaking with intent to steal,. And theft and robbery with aggravating circumstances. He was using· prohibited substances like heroin and nyaope . He was arrested on28 January 2016 and the trial was finalised on 15 August 2016. he was in custody for a period of 7 months awaiting trial in this matter.

[19]       Due to the seriousness of the offences, it is required that the elements of retribution and deterrence should come to the fore, and that the rehabilitation of the appellant should be accorded a smaller role. His personal circumstances similarly have to bow to the interests of society. As pointed out in S v Vilakazi 2009 (1) SACR 552 (SCA) para 58, in cases of serious crime the personal circumstances of the offender, by themselves, will necessarily recede into the background. Without doubt, this is one of those cases.

[20]     In the appeal, Mr Molatudi on behalf of the State submitted that there are no substantial and compelling circumstances that justified the Court to deviate from imposing the minimum sentences.

[21]     One of the grounds of appeal Is that the Court a quo approached t e sentence with vengeance and over emphasised the seriousness of the offence to the detriment of the appellant with total disregard of the appellant's personal circumstances. In this regard Mr Moeng argued on behalf of the appellant that the matter of Mndebele v S (A287/16)[2017] ZAPPHC 538 (31 August 2017) is applicable.

[22]     Mr Moeng further argued that the factors relevant to sentencing and the purpose of punishment must, based on the facts of every case, be placed in a particular balance to one another, as found in S v de Kock 1997 (2) SACR 171 (T) at 192H.

[23]       Of utmost importance is the concession made by Mr Moeng in his heads of argument. and confirmed during argument, was that the appellant, despite being under the influence of drugs when the crime was committed, knew what he was doing. This is a serious and tragic fact in this appeal: if the appellant knew what he was doing (which he was) he would not hesitate to do it again.

[24]       In S v Pieters 1987 (3) SA 717 (A) appeal court confirmed the position that an appeal court should not intervene unless the sentence is shocking and/or startling inappropriate.

[25]       After having considered all the relevant factors as set out above, I am of the view that the sentences fit the crime and that the sentencing should not be interfered with. It is my view that the trial Court did not misdirect itself.

[26]     he appeal can therefore not succeed.

[27]     In the result I propose the following order.

 

The appeal against the sentence of the appellant is dismissed.

 

 

FMM SNYMAN

ACTING JUDGE OF THE HIGH COURT

 

 

I agree

 

 

MJ TEFFO

JUDGE OF THE HIGH COURT

 

 

DATE OF HEARING·         21 August 2019

DATE OF JUDGMENT      20 September 2019

 

Appearances

For the appellant         Adv S Moeng

Instructed by the Pretoria Justice Centre

 

For the respondent.                Adv M Molatudi

Instructed by the Director of Public Prosecutions

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