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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU NATAL, PIETERMARITZBURG

APPEAL NO. AR 196/07

In the matter between:

VUKANI KWAZIKWENKOSI ZWANE APPELLANT

and

THE STATE RESPONDENT

J U D G M E N T

NDLOVU J

[1] The appellant, who was undefended at his trial – having elected to conduct his own defence – was convicted by the regional court sitting at Ulundi in northern KwaZulu-Natal for murder in respect of which the presiding regional magistrate explained to him that the penal provisions of the Criminal Law Amendment Act 105 of 1997 (“the Act”) were applicable. Thereupon the appellant was sentenced to 15 years’ imprisonment after the court a quo had found that no substantial and compelling circumstances as envisaged in section 51(3) of the Act were present. With leave of the court a quo the appellant appealed to this Court only against his sentence.

[2] At the conclusion of the trial, the regional magistrate reached a finding on the issue of substantial and compelling circumstances, which he expressed as follows:

“I have strongly considered since yesterday, since we started with sentence proceedings, to try and find substantial and compelling circumstances in your case, but I do not think your disability alone constitutes that. As I have said, I feel sorry for you for the fact that you are disabled, but my personal feelings are not important when it comes to sentence.” (Page 45 line 27 to page 46 line 1 of the record)

[3] Having found no such circumstances present, the regional magistrate proceeded and imposed the minimum sentence of 15 years’ imprisonment on the appellant. The question is whether, on the facts of this case, the Court a quo was justified in finding that substantial and compelling circumstances did not exist.

[4] The appellant pleaded guilty to the charge but, after questioning him in terms of section 112(1)(b) of the CPA, a plea of not guilty was entered in terms of section 113. However, the appellant admitted that he caused the death of the deceased, who was his mother, by shooting her with a firearm which was licensed to his wife. As to how many gunshot wounds the deceased sustained, it was not quite clear on the evidence. The court a quo refused to admit the post mortem examination report after the regional magistrate had, when viewing the report, remarked: “I can’t make out here how many gunshots the body received” and the doctor who examined the body and authored the report having since emigrated and, therefore, virtually impossible to secure his attendance. Notwithstanding his remark aforesaid, the regional magistrate, in his judgment, stated the following:

“But I am satisfied that you shot your mother, that you intended her death by firing five shots at her and that you have no excuse, no defence.” (Page 36 line 4 of the record.)

[5] Indeed, it was the witness Khanyisile Sibongile Masondo who told the Court: “I first heard three shots which were fired, and I also heard two after that” and, it seemed to me, based on Masondo’s evidence, that the regional magistrate asked the appellant to “explain those five shots you fired” to which the appellant replied “My mother had hit me, and it just happened that I fired those five shots.”. The mention by the appellant of five shots appeared, in my view, to have been spontaneously responsive to what had been suggestively put to him in that regard by the regional magistrate. In any event, the hearing by Masondo of five shots did not necessarily mean that the deceased was shot five times since the witness at the time was out of sight of the scene. Nor does it necessarily mean that the deceased sustained five gunshot wounds. Indeed, absent the evidence of the post-mortem examination, it was possible that the deceased was shot less than five times. Strangely, though, that despite the Court a quo having rejected the post mortem examination report, as indicated above, the following appeared at page 25 of the record:

“COURT: According to the post mortem report, Mr Makubane (this was the prosecutor at the trial), how many times was his mother shot?

PROSECUTOR: Once on the abdomen, Your Worship “gunshot abdominal ……… (indistinct) one gunshot ……….. (indistinct)

COURT: So he is correct when he says he shot her in the abdomen.”

[6] Although certain words were inaudible in the second sentence of the prosecutor’s answer, it would appear that the missing words were only descriptive of the main answer, namely “Once on the abdomen”. In any event, it was unclear on what evidence the regional magistrate based his remark that five shots were fired at the deceased because there was no such evidence. The witness Masondo, as quoted above, only heard five shots but she did not testify that the appellant fired five shots at the deceased.

[7] The appellant was physically disabled in that the right side of his body was paralysed as a result of a previous stabbing attack. He was receiving a Government disability grant from which he earned a living and supported his wife and four minor children. He told the court that he shot the deceased out of anger after finding out that the man whom the deceased had all along told him was his father, was apparently not. The man in question, Mandla Zwane, also testified (having been called by the appellant) and confirmed that he had indeed told the appellant that he was not his father. He sought to furnish the appellant with circumstantial proof supporting his denial. It was after this development that the appellant had confronted the deceased and demanded that she tell him about his real identity, that is, who his real father was. According to the appellant, the deceased had become aggressive towards him, hitting him with a clenched fist and telling him to go and fetch Mandla Zwane. Appellant further testified that, as a result of this exchange with the deceased he got angry, then drew the firearm and shot the deceased.

[8] There were indeed mitigating factors in favour of the appellant. The court a quo, in my view, attached very little weight, if any, to the following:

1. The appellant had initially pleaded guilty to the charge and there seemed to be no reason to discount his assertion that he was remorseful of his action.

2. The appellant was physically disabled and a recipient of the State’s disability grant from which he supported himself, his wife and four minor children.

3. In his or her address in mitigation of sentence, the prosecutor appeared to seek a more lenient sentence when he or she stated that it would seemingly be a problem to the prison authorities when they were to deal with the appellant in his disabled condition.

4. The appellant was a first offender.

5. There appeared to be a good chance that the appellant was a suitable candidate for rehabilitation in that there was no reasonable prospect of him committing a similar offence again in the future.

6. The appellant had seemingly been made to believe that his father was Mandla Zwane, hence he presumably assumed the same surname. When it turned out that Mandla Zwane was not his real father and his mother (the deceased) not being prepared to clarify to him about this issue, he became distraught and frustrated.

[9] In my view, the cumulative effect of these mitigating factors constituted substantial and compelling circumstances justifying the imposition of a lesser sentence than the prescribed minimum imprisonment. Therefore, considering all the relevant factors, I would think imprisonment for ten years, half of which was conditionally suspended, would have been appropriate in the circumstances of the case.

[10] Accordingly, I propose the following order:

1. The appeal against sentence is upheld.

2. The sentence is altered to read as follows:

“The accused is sentenced to ten (10) years’ imprisonment of which half is suspended for five (5) years on condition that the accused is not convicted of any offence involving an assault for which he is sentenced to imprisonment without the option of a fine committed during the period of suspension.”

_________________ I agree:

RALL AJ

__________________ It is so ordered :

NDLOVU J

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Counsel for the appellant : Mr P Marimuthu

Instructed by : Pietermaritzburg Justice Centre

Counsel for the respondent : Mr J du Plessis

Instructed by : Director of Public Prosecutions

Judgment handed down on : 3 December 2009

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