Director of Public Prosecutions, Mpumalanga Division v Mofokeng (A23/2022) [2023] ZAMPMHC 9; 2023 (1) SACR 670 (ML) (24 March 2023)

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION (MIDDELBURG LOCAL SEAT)

CASE NO. A23/2022

Revised

In the matter between:

THE DIRECTOR OF PUBLIC PROSECUTIONS MPUMALANGA DIVISION APPELLANT and MPHO MOFOKENG RESPONDENT

JUDGMENT

MTIMUNYE AJ:

INTRODUCTION:

[1] The Respondent, Mr. Mofokeng, was charged in the Regional Court sitting at Evander on three counts, namely, murder read with the provisions of Section 51(1) of the Criminal Law Amendment Act 51 of 1977,(“the CLAA”), kidnapping as well as robbery with aggravating circumstances read with the provisions of Section 51(2) of the CLAA. He was subsequently convicted of all the three charges. However, on the charge of murder the court a quo convicted him on murder read with the provisions of Section 51(2) of the CLAA and sentenced him to fifteen (15) years imprisonment. For the kidnapping and the robbery with aggravating circumstances he was sentenced to three years (3) imprisonment and fifteen (15) years imprisonment respectively. The court further ordered that the sentences in respect of murder and robbery with aggravating circumstances to run concurrently.

[2] The Respondent brought an application for leave to appeal against both the conviction and sentence which was refused. His petition to the High Court was also refused.

[3] The office of the Director of Public Prosecutions (hereinafter referred to as DPP) requested the learned magistrate to state a case in terms of Section 310(1) of the Criminal Procedure Act 51 of 1977 and Rule 67(11) Of the Magistrates’ Court Rules. The question posed in terms of Section 310 of Act 51 of 1977 is “was the accused correctly convicted of murder read with the sec 51(2) Act 105 of 1997 while the deceased was killed during the commission of the crime of robbery with aggravating circumstances”. The magistrate stated that the state failed to prove that it was the direct intention of the accused to kill the deceased and therefore found dolus eventualis to be the intention proved. After receiving the stated case in terms Rule 67(12); the DPP brought this appeal against the sentence imposed by the regional magistrate on the count of murder.

BACKROUND FACTS:

[4] The evidence presented during the trial was mostly common cause. The evidence showed that the deceased was taken outside the tavern ; and assaulted by the three assailants and the accused. He was then loaded in the boot of his vehicle and the accused and the other assailants got into the vehicle and left the scene. The following day Themba Ngonyana, who witnessed that incident, approached police on patrol and informed them what he observed the previous night. He later pointed out the accused to the police. The body of the deceased was recovered from a trench between Kinross and Leandra and his vehicle was recovered close to the graveyard. The accused’s evidence was that he only asked a lift from the people who assaulted the deceased and he did not participate in the assault. He was forced to get into the deceased’s vehicle and promised not to be harmed. The deceased was again assaulted at a spot next to the graveyard. The assailants were disturbed by an approaching motor vehicle and they fled. He also fled and went to his house. He did not report what he witnessed to the police and the following day he was arrested.

[5] The court a quo correctly rejected the version of the accused and found that the accused participated in the commission of the offence. The court

found that the deceased passed away as a result of an assault upon him and dolus eventualis was the intent proved by the evidence presented by the state. The court a quo, however, found the accused guilty of murder read with the provisions of Section 51(2) of Act 105 of 1997 and this is what the State challenges as alluded to in the ensuing paragraphs.

CONTENTIONS BY THE STATE AND THE RESPONDENT

[6] The State submitted that respondent was properly informed that the provisions of section 51(1) of the CLAA are applicable to the count of murder as per the annexure to the charge sheet. Secondly, that the court a quo was incorrect in deviating from the prescribed sentence just because it found the murder was not committed with direct intention or dolus directus. The State submitted further that that upon the proper reading of Part 1 of Schedule 2, it is clear that there is no requirement of a specific intent or premeditation for life imprisonment to be imposed under paragraph (c) (ii) of Schedule 2. The State further submitted that section 51(1) Schedule 2 (d) prescribes life imprisonment for murder which was committed by a group of people acting in furtherance of a common purpose. The State submitted that the court a quo correctly found that the respondent failed to prove the existence of substantial and compelling circumstances and further that as a consequence thereof, this court ought to interfere with the sentence imposed in respect of the murder by setting it aside and imposing the correct sentence.

[7] The respondent’s argument centers around the applicability of section 51 (1) of the CLAA which his legal representative essentially contended was not properly explained by the trial court to the respondent prior to his plea on the murder charge. The respondent contended therefore that the appeal against the sentence should be dismissed based on this ground.

APPLICABLE LEGAL PRINCIPLES

[8] Section 51(1) of the CLAA reads as follows:

51- Discretionary minimum sentences for certain serious offences:

(1) Notwithstanding any other law, but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person it has convicted to an offence referred to in Part 1 of Schedule 2 to imprisonment for life.

Part 1 of Schedule 2 provides as follows:

Murder, when -

(a) …;

(b) …;

(i) …; or

(ii) …;

(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:

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

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

AD CONVICTION:

[9] According to the charge sheet, the accused was charged with murder read with the provisions of Section 51(1) and Part (1) of Schedule 2 of the CLAA in that he acted in furtherance of common purpose. In S v MT 2018 (2) SACR 592 (CC) at paragraph [38] the court stated the following:

‘It is indeed desirable that the charge sheet refers to the relevant penal provision of the Minimum Sentences Act. This should not,

however, be understood as an absolute rule. Each case must be judged on its particular facts. Where there is no mention of the

applicability of the Minimum Sentence Act in the charge sheet or in the record of the proceedings, a diligent examination of the

circumstances of the case must be undertaken in order to determine whether that omission amounts to unfairness in trial. This is so because even though there may be no mention, examination of the individual circumstances of a matter may very well reveal sufficient

indications that the accused’s section 35(3) right to a fair trial was not in fact infringed.’ (Emphasis added).

[10] The contention by the respondent that the minimum sentence was not explained to him is incorrect. Firstly, it is clear from the record that the charge sheet did indicate that the respondent was charged with murder read with the provisions of Section 51(1) of the CLAA. Secondly, the respondent’s legal representative conceded that the Minimum Sentences provision was explained to the respondent by another magistrate before the date of the trial. The respondent further had legal representation right through the trial and it was never an issue that these provisions had been properly explained albeit by another presiding magistrate. I therefore find that the respondents’ right to a fair trial was not infringed as the applicable provisions of the CLAA were adequately explained to him.

[11] Furthermore, according to the record, the deceased was assaulted, kidnapped and robbed of his motor vehicle by a group of four

persons in furtherance of a common purpose or conspiracy. In S v Mahlangu and Others 2012 (2) SACR 373 (GSJ),Satchwell J held that

“ murder, where it is committed in the course of a robbery, which is robbery with aggravating circumstance, or where it is planned or premeditated murder, or where the murder is committed by a group of persons acting together in the course of a common purpose or conspiracy, is a crime which the Criminal Law Amendment Act 105 of 1997 (the Act) has identified as a crime attracting a prescribed minimum sentence of life imprisonment”.

[12] In this case it is clear that the murder of the deceased happened during a robbery with aggravating circumstances of which the accused has also been convicted. As stated in Mahlangu, supra, such a murder attracts the provisions of section 51(1) of the CLAA. Whether intention was dolus directus, dolus indirectus or dolus eventualis is immaterial and does not constitute substantial and compelling circumstance. Intention involves the perpetrator’s state of mind before and the criminal act is being committed[1]What is important is that the intentional killing of the deceased, (murder), was committed during the course of a robbery with aggravating circumstances. Furthermore, the murder was committed or by a group of persons acting together in furtherance of common

purpose. In these circumstances too the provisions of section 51 (1) also find application as correctly pointed out in Mahlangu, above. I therefore agree with the appellant that the magistrate misdirected himself by finding that the state failed to prove dolus directus and that therefore he was justified to convict the respondent on murder read with the provisions of Section 51(2) of the CLAA.

[14] I am accordingly of the firm view that the murder in this case falls squarely within the purview of section 51(1) read with Part I of Schedule 2 of the CLAA, as the appellant correctly submitted. I agree with the appellant that according to the provisions of Section 51(1), Part 1 of Schedule 2, the death of the deceased came about as a result of the assailants committing robbery with aggravating circumstances. Even though the magistrate found that the murder was committed with intention in the form of dolus eventualis, that did not exclude the provisions of Section 51(1) and Part 1 of Schedule 2, specifically section (c) (ii) and (d) under which the murder is categorized. The prescribed minimum sentence for such a murder remains life imprisonment unless there are substantial and compelling circumstances in terms of Section 51(3) of the CLAA. Therefore, I find that the magistrate erred in concluding that the applicable provision of the CLAA is section 51 (2).

AD SENTENCE:

[15] It is trite that punishment is pre-eminently a matter for the trial court's discretion.[2] The power of an appellate court to interfere with a sentence imposed by a lower court is limited. In S v Bogaards[3], the Constitutional Court stated as follows:

‘It can only do so where there has been an irregularity that results in a failure of justice; the court below misdirected itself to such an extent that its decision on sentence is vitiated; or the sentence is so disproportionate or shocking that no reasonable court could have imposed it.’

[14] Where, however, a material misdirection by the trial court vitiates its exercise of that discretion, an appellate court is of course entitled to interfere and consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance. Even in the absence of a material misdirection, an appellate court may still be justified in interfering with the sentence imposed by the trial court where there the sentence is 'shocking', 'startling' or 'disturbingly inappropriate’.[4]

[15] It is clear that stern sentences have been prescribed for this type of murder. As warned in the case of S v Malgas, supra, a court is not entitled to embark on a speculative hypotheses favorable to the offender or express undue sympathy or an aversion to imprisoning first offenders or express personal doubts as to the efficacy of the policy underlying the legislation On the facts of this matter the court a quo correctly found that there were no substantial and compelling circumstances presented by the respondent to justify deviation from the imposition of the prescribed minimum sentence. The aggravating circumstances in this matter by far outweigh the mitigating factors. The deceased was beaten at different places. According to the record he was beaten because he owed one of the assailants some money. He was beaten, robbed and dumped in a trench in the veld. The court further correctly found that this was a prevalent offence and the personal circumstances of the respondent must recede to the background.[5]

[16] In S v Mthembu[6], paying particular attention to the provisions of s 51 of the CLAA, the Supreme Court of Appeal stated the following:

‘Thus far our courts have simply accepted that if, upon an evaluation of the cumulative effect of all the circumstances of a case, a higher sentence was called for, there were no constraints on its discretion to impose a sentence far in excess of the ordained minimum (Director of Public Prosecutions, Transvaal v Venter [2008] ZASCA 76; 2009 (1) SACR 165 (SCA) ([2008] 4 All SA 132) para 19)…

And at para 18 it was there pronounced:

…After all, any sentence imposed, like any other conclusion, should be properly motivated (S v Maake 2011 (1) SACR 263 (SCA). And we should not lose from sight that our appellate courts have, in terms of long standing practice, reserved for themselves the right to interfere where a sentence has been vitiated by a material misdirection or where it is shocking or startlingly inappropriate…a

'vigilant examination of the relevant circumstances' is required…’

[17] What is clear from Mthembu, supra, is that where there are no substantial and compelling circumstances, the trial court does not retain its sentencing discretion. However, if the trial court has imposed the minimum sentence in terms of the CLAA, an appellate court may still determine whether the minimum prescribed sentence is inappropriate and accordingly determine an appropriate sentence. There is nothing in the CLAA which posits that a deviation from the prescribed minimum sentences be justified in the same way as would be the case where a lesser punishment is called for. Such a construction would manifestly inhibit the object of the CLAA. In addition, on the plain reading of the CLAA, there is nothing indicating that the aggravating circumstances of this case have already been factored in the prescribed minimum sentence of 15 years that the trial court imposed. This is because the magistrate imposed that sentence under the mistaken belief that because the murder was committed with intent in the form of dolus eventualis, the prescribed sentence is 15 years imprisonment.

[18] I share the following sentiments that were echoed in Director of Public Prosecutions, Transvaal v Venter,[7] when increasing the sentence imposed by the trial court:

‘It needs to be borne in mind that the sentences provided for in the Act are minimum sentences for the prescribed offences and Malgas was

directed to whether a lower sentence might be called for in a particular case. But an evaluation of the cumulative effect of all

the circumstances, in accordance with the approach in that case, might well indicate that a higher sentence is called for.’

[19] I am of the considered view that the sentence of 15 years imposed in this matter on the count of murder is incompetent and inappropriate as it is based on a wrong premise. Having regard to all the serious aggravating features of this case as well as the finding by the court that there are no substantial and compelling circumstances, the trial court was incorrect in imposing the sentence that it did. The sentence imposed is in my view 'disturbingly inappropriate’. The prescribed minimum sentence of life imprisonment would best serve all the objectives of punishment. The sentence imposed for kidnapping and robbery with aggravating circumstances need not be disturbed. It follows that the State’s appeal against the sentence must be upheld.

[20] I am also of the view that all the relevant facts have been placed on record for this court to determine an appropriate sentence. It will therefore not be necessary for this matter to be remitted to the court a quo for the reconsideration of sentence. The magistrate correctly found that there are no substantial and compelling circumstances in this case and I agree with that finding. There is therefore no justification for deviation from the prescribed sentence.

[21] In the result, the following order is made:

1. The State’s appeal against the sentence on count 1 is upheld.

2. The sentence of 15 years’ imprisonment on count 1 is set aside and is substituted with the following:

The accused is sentenced life imprisonment on count 1 (Murder read with section 51 (1) of the CLAA.

The 3 years’ imprisonment on Count 2 and the 15 years imprisonment on count 3 shall run concurrently with the sentence on count 1.

3. The substituted sentence is antedated to 03 May 2021 in terms of section 282 of the Criminal Procedure Act 51 of 1977.

MTIMUNYE AJ

ACTING JUDGE OF THE HIGH COURT

I agree it is so ordered.

LANGA J

JUDGE OF THE HIGH COURT

Date of hearing: 17 February 2023 Date of judgement: 24 March 2023 For the Appellant: Advocate D. Rowles For the Respondent: Mr. P Mafadza

[1] . See S v Dube (CC03/22) [2022] ZAMPHBHC 28 (3 May 2022) at para 13

[2] S v Rabie 1975] 4 All SA 723 (A); 1975 (4) SA 855 (A) at 857D-E.

[3] S v Bogaards [2012] ZACC 23; 2012 BCLR 1261 (CC); 2013 (1) SACR 1 (CC) para 41.

[4] S v Malgas 2001 (1) SACR 469 (SCA) para 12.

[5] See S v Vilakazi 2009 (1) SACR 552 (SCA)

[6] 2012 (1) SACR 517 (SCA) paras 5-13 and 18

[7] Director of Public Prosecutions, Transvaal v Venter [2008] ZASCA 76; [2008] 4 All SA 132 (SCA)