IN THE HIGH COURT OF SOUTH AFRICA
(CAFE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between:

and

JUDGMENT

MOOSA, J

Appellant has been convicted in the Regional Court, Wynberg, on a charge of attempted murder and sentenced to seven years imprisonment. The appellant now comes on appeal to this court, having been granted leave to appeal against the sentence only.

The grounds of appeal in respect of sentence are firstly, that the sentence is shockingly inappropriate, given the appellant's youth and secondly, that the magistrate erred in not considering other sentencing options with the emphasis being on rehabilitation.

The Court is, however, of the opinion that there is no chance that any other sentence than direct imprisonment will be imposed on appeal if the sentence is not confirmed on appeal. If the High Court interferes with this Court's sentence, I respectfully submit that the only other sentence would be slightly shorter than seven years."

Although the appellant pleaded not guilty to the charge of attempted murder, he made certain written admissions in terms of Section 220 of the Criminal Procedure Act 51 of 1977, which effectively amounted to a plea of guilty.      In such written admissions he said:

"I admit that on or about the 24 day of September 2006 and at or near Gugulethu in the Regional Division of the Western Cape, I did unlawfully and intentionally attempt to kill Michael Msadu, a male, by shooting him with a firearm and wounding him in the leg.''

In the written admissions, the appellant goes on further to explain the events leading to the shooting:

"The events leading to this incident were that I had a fight with Michael and he and his friends shot at me a week before this particular incident. So when I later confronted him, I was armed and when he moved, I shot at him. I admit that ! was not sure whether he was armed or not, but I shot at him nevertheless. I know and admit that I should have foreseen that the bullet could have resulted in his death..."

Michael Msadu ("Michael") admitted in his evidence that there was an altercation between him, his family members and the appellant a week prior to this particular incident, during which a firearm was produced by him and his family members. It appears, therefore, that there was some form of confrontation a week earlier.

From the evidence it appears that the appellant only discharged one bullet, which hit Michael in the finger and the hip. The bullet ricocheted and hit Thomzama Zama Siko ("Thomzama"). It is common cause that they did not suffer any permanent injuries. The bullet, however, is still lodged in the body of Thomzama. The appellant was found not guilty on another charge of attempted murder relating to Thomzama.

It appears that at the time of the incident the appellant was 20 years old and as such a youthful offender.   He was also a first offender. He effectively pleaded guilty. There was a previous confrontation between the appellant and the complainant and members of his family. In such confrontation the complainant or members of his family produced a firearm. There is no evidence that complainant suffered any permanent injuries.

"In the case of a juvenile offender, it is above all necessary for the Court to determine what appropriate form of punishment, in the peculiar circumstances of the case, best serves the interests of society as well as the interests of the juvenile. The interests of society cannot be served by disregarding the interests of the juvenile, for a mistaken form of punishment might easily result in a person with a distorted or more distorted personality being eventually returned to society."

In the light of all the circumstances I think an appropriate sentence would be a term of imprisonment because of the seriousness of the offence, and a portion suspended because he is a juvenile and a first offender. The suspended portion of the sentence would serve as a sword of Damocles to discourage him from repeating the offence.

I agree.