---

 

REPUBLIC OF SOUTH AFRICA

IN THE HIGH OURT OF SOUTH AFRICA;

LIMPOPO DIVISION; POLOKWANE

 

CASE NO: AA10/2022

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED

DATE: 01 September 2023

AJP SEMENYA M.V

 

In the matter between:
MOLAHLEGI FRANS MMAKO	: APPELLANT
And
THE STATE	: RESPONDENT

 

JUDGMENT

 

Heard on: 18 JUNE 2023

Delivered: This judgment is handed down electronically by circulation to the parties through their legal representatives’ email addresses. The date for the hand-down is deemed to be 01 September 2023.

 

SEMENYA AJP:

 

[1] The appellant was convicted by Kgomo J on a charge of assault with intent to do grievous bodily harm and one of murder read with the provisions of section 51(1) of the Criminal Law Amendment Act 105 of 1997 (Act 105 of 1997) as amended. He was sentenced to six (6) years’ imprisonment on a charge of assault with intent to do grievous bodily harm and twenty-six (26) years’ imprisonment on the murder charge. The two sentences were ordered to run cumulatively.  The appellant was to serve an effective sentence of thirty-two (32) years’ in prison. Certain ancillary orders with regard to his fitness to possess a firearm in terms of the Firearms Control Act 60 of 2000, unfitness to work with children in terms of the Children’s Act 38 of 2005 and that his names should be entered in a Register of Sexual Offences in terms of section 50 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 were made by the court. Leave to appeal was granted by Makgoba JP against sentence only.

 

[2] A summary of the salient facts that led to the conviction of the appellant is as follows. The appellant and the deceased were in a love relationship as at the date of the incident. On the 2 January 2014, one Cyril Lesiba Mogashoa, the deceased’s daughter’s boyfriend, arrived at the deceased’s house where he found the appellant busy searching his girlfriend’s room. He asked the appellant why he was doing so. The appellant took a waste bin and hit the deceased therewith. He further undressed her and spilled water over her body. He and the deceased’s daughter reprimanded the appellant and the quarrel stopped. The deceased and the appellant entered into their bedroom to sleep. They too went to sleep.

 

[3] At about 00:30, the appellant went into the room where Mogashoa and his girlfriend were sleeping. He pulled Mogashoa by his leg and hit him twice with an axe on his back and shoulder.  Mogashoa and his girlfriend ran away and hid themselves from the appellant’s aggression. They returned later to find the deceased dead in her bedroom. The appellant was no longer at the house. The cause of death is recorded in the post mortem report as “EXTERNAL NECK COMPRESSION.”

 

[4] The issue in this appeal is whether the trial judge exercised his discretion properly and judiciously and whether he has applied the law correctly to the facts before him when sentencing the appellant. Counsel for the appellant contends that the trial court misdirected itself materially with regard to the correct sentencing regime, based on its factual findings. Counsel placed reliance on the following remarks made in the trial court’s judgment:

“It is true that premeditation can take place within a second but in this case this court has a problem as to whether there is premeditation. Definitely there was no preplanning. There is no question of common purpose with other people here also”

 

[5] Based on the remarks made by the trial judge, counsel for the appellant submitted that the trial judge misdirected himself in convicting the appellant under section 51(1) of the Act 105 0f 1997 instead of section 51(2). It is counsel for the appellant’s view that the conviction under a wrong section had an influence on the sentence imposed on the appellant by the trial judge.

 

[6] In convicting the appellant, the trial court simply stated that the appellant is “guilty as charged”. As already stated in paragraph [1] above, the murder charge was read with section 51(1) of Act 105 of 1997. The jurisdictional facts applicable under this section are as stated in Part 1 of Schedule II of the Act. As at the date of judgment of the trial court (2017/02/23) they are as follows:

“Murder, when-

(a) It was planned or premeditated

(b) the victim was-

(i) a law enforcement officer performing his or her functions as such, whether on duty or not;

(ii) a person who has given or was likely to give material evidence with reference to any offence referred to in Schedule 1 to Criminal Procedure Act, 1977…at criminal proceedings in any court;

(c) the death of the victim was caused by the accused in committing or attempting to commit or after having committed or attempted to commit one of the following offences:

(i)             Rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32, 2007, respectively; or

(ii)            Robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act, 1977 (Act 51 of 1977;

(d) the offence was committed by a person, group of persons or syndicates acting in the execution or furtherance of a common purpose or conspiracy;

(e) the victim was killed in order to unlawfully remove any body part of the victim, or as a result of such unlawful removal of a body part of the victim; or

(f) the death of the victim resulted from, or is directly related to, any offence contemplated in section 1(a) to(e) of the Suppression of Witchcraft Act, 1957, (Act 3 of 1957).

 

[7] Although the trial court is silent about the jurisdictional facts in (b) to (f), it is evident from the judgment and the recorded evidence that none of them are applicable. Having found that none of the jurisdictional facts that calls for a conviction under section 51(1) is applicable, the learned trial judge erred, as contended by counsel for the appellant, when it convicted the appellant under that section. This finding will then be one of the guiding principles in this appeal court’s determination on whether the sentence imposed by the trial court should be interfered with or not.

 

[8] Counsel for the respondent contends that it appears clearly from the record of the proceedings that the learned judge was fully aware that he cannot impose a sentence in terms of section 51(1) of the Act 105 of 1997. This appears from the record where the learned judge stated that the legislature did not intend to take away the discretionary powers of the sentencing courts, hence the heading of section 51. Counsel for the respondent argued that the sentence imposed by the trial judge falls within the inherent sentencing powers of a Superior Court judge.

 

[9] In S v Malgas 2001 (1) SACR 469 (SCA) it was stated that:

“[8] In what respects was it no longer to be business as usual? First, a court was not to be given a clean slate on which to inscribe whatever sentence it thought fit. Instead, it was required to approach that question conscious of the fact that the legislature has ordained life imprisonment or the particular prescribed period of imprisonment as the sentence which should ordinarily be imposed for the commission of the listed crimes in the specified circumstances. In short, the legislature aimed at ensuring a severe, standardised, and consistent response from the courts to the commission of such crimes unless there were, and could be seen to be, truly convincing reasons for a different response…

 

[10] In terms of the Act 105 of 1997, any murder which is committed in circumstances other than those listed in Part II of Schedule 2 will attract a minimum sentence of fifteen years imprisonment. When one has regard to the sentiments made in Malgas above, a “standardised” and “consistent” sentence will be a sentence of fifteen years’ imprisonment for a first offender who has been convicted of an offence that falls within the ambit of subsection (2) of section 51 of the Act 105 of 1997.

[11] In as much as any judicial officer who decides to impose a sentence which is lesser than the prescribed minimum sentence is required to list factors which substantially compels him or her to do so, it is my understanding that same should apply where the sentencing court is of the view that the type of an offence the accused has committed warrants imposition of a sentence that is ten years in excess of that prescribed in the Act 105 of 1997. In the same way, such judicial officer is expected to succinctly state the reasons why he or she is deviating from imposing a prescribed sentence, by imposing the one that is more severe, as opposed to a lesser one.

 

[12] It is so that sentencing discretion lies pre-eminently with the sentencing court and must be exercised judiciously-S v PB 2013 (2) SACR 533 (SCA) [19].  A discretion that has been judiciously exercised, when it comes to sentencing, is the one which results in a sensible, justifiable and fair sentence (synonyms in Merriam-Webster dictionary). In this case, it is a sentence that is in line with that prescribed in terms of section 51(2), unless there are circumstances which calls for a severe sentence.

 

[13] In Aliko v The State (552/2018) [2019] ZASCA 31 (28 March 2019) at [17] a sentence of life imprisonment was imposed irrespective of the fact that the commission of the offence was not pre-meditated. The court stated that:

“In S v Matyityi this court stressed the importance of proportionality and balance between the crime, the criminal and the interests of society. It remains the paramount function of the sentencing court to independently apply its mind to the consideration of a sentence that is proportionate to the crime committed. The cardinal principle that the punishment should fit the crime should not be ignored.

[18] These remarks are equally applicable in this case. Even in the absence of premeditation, the imposition of a sentence which is disproportionate to the crime committed would be wrong. It remained the duty of the courts to determine and impose a sentence which took into consideration the crime, the criminal and the interests of society. The trial court was alive to this. When sentencing the appellant, the trial judge said that even if there had been no premeditation the sentence of life imprisonment would have been the appropriate sentence. I agree.

[19] This murder was horrific. It was executed with shocking brutality and cruelty against a defenceless, sickly person…”

 

[14] Without appearing to be insensitive, the circumstances of the present case are distinguishable from those in Aliko. There is no evidence to prove that the murder was ‘horrific or that it was committed in a cruel or brutal manner’. I however do not agree with counsel for the appellant that there are substantial and compelling circumstances that justify imposition of a lesser sentence. The trial court correctly found that the fact that the accused was looking after his mother, does not have a steady income and was once convicted of domestic violence cannot be found to be those that justifies deviation, taken cumulatively or otherwise.

 

[15] Another anomaly is that the trial court has made an order that the appellant be entered in a register of sexual offenders in accordance with section 50 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (Sexual Offences Act).  The persons whose names must be entered in the registrar are as follows:

“50 Persons whose names must be included in Register and related matters

 (a) A person who in terms of this Act or any other law-

(i) has been convicted of a sexual offence against a child or a person who is mentally disabled;

 (ii) is alleged to have committed a sexual offence against a child or a person who is mentally disabled in respect of whom a court, has made a finding and given a direction in terms of section 77 (6) or 78 (6) of the Criminal Procedure Act, 1977;

(iii)          is serving a sentence of imprisonment or who has served a sentence of imprisonment as the result of a conviction for a sexual offence against a child or a person who is mentally disabled; or

(iv)           has a previous conviction for a sexual offence against a child or a person who is mentally disabled or who has not served a sentence of imprisonment for such offence; and

(b) any person-

(i) who, in any foreign jurisdiction, has been convicted of any offence equivalent to the commission of a sexual offence against a child or a person who is mentally disabled;

(ii) who, in any foreign jurisdiction, has been dealt with in a manner equivalent to that contemplated in paragraph (a) (ii); or (iii) whose particulars appear on an official register in any foreign jurisdiction, pursuant to a conviction of a sexual offence against a child or a person who is mentally disabled or as a result of an order equivalent to that contemplated in paragraph (a) (ii), whether committed before or after the commencement of this Chapter.”

[16] The offences that the appellant has been found guilty of are not included in section 50 Of the Sexual Offences Act. The trial court misdirected itself in making an order that his names be included in the register. This order stands to be set aside.

 

[17] The assault on the victim in count 2 was unprovoked. The appellant attacked the victim who was sleeping in the middle of the night. He used a dangerous weapon to attack him. I find no misdirection on the part of the trial judge in not making an order that the two sentences should run concurrently. The trial court’s order in that regard is correct and cannot be interfered with. It is a sentence that fits the crime, the criminal and the interest of the community. The sentences must be served cumulatively.

 

 [18] In the result the following order is made:

1. The appeal against the sentence of twenty-six (26) years’ imprisonment on the murder charge is upheld. The sentence is set aside and replaced with the following:   

i. The appellant is sentenced to fifteen (15) years’ imprisonment.

2. The appeal against the sentence of six (6) years’ imprisonment in respect of the charge assault with intent to do grievous bodily harm is dismissed.

3. In terms of section 280 (1) of the Criminal Procedure Act 51 of 1977 it is ordered that the two sentences shall run cumulatively; and

4. The Registrar of this court is directed to take the necessary steps to have the particulars of the appellant removed from the register of sexual offenders.

 

M V Semenya

Acting Judge President Limpopo Division.

 

I agree

 

Naudé-Odendaal

 

I agree

 

Ngobeni AJ

 

APPEARANCES:
Counsel for the Applicant	: Adv. L Manzini
Instructed by	:  Legal Aid SA; Limpopo
Respondents	: Adv. Mufamadi
Instructed by	: DPP; Limpopo
Date of Hearing	: 18 August 2023
Date of Judgment	: 30 August 2023

---