Lukhele v S (CC55/14) [2016] ZAGPPHC 123 (23 March 2016)
- Citation
- [2016] ZAGPPHC 123
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- FHD Van Oosten
- Case number
- CC55/14
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- FHD Van Oosten
- Case number
- CC55/14
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the sentence imposed was fair and proportionate to the gravity of the offence, considering the seriousness of murder and the prevalence of intimate partner violence. The applicant's personal circumstances and remorse were duly considered, but did not outweigh the need for deterrence and the protection of society. The court held that sentencing discretion lies with the trial court and that no reasonable prospects of success on appeal exist, thus leave to appeal was refused.
Court disposition
Leave to appeal is refused.
Orders
- Leave to appeal against the sentence is refused.
02
Material facts
Parties
Jabulani Joseph Lukhele
ApplicantThe State
RespondentAmounts and remedies
- Sentence Imposed (years): 15
03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Against Sentence
04
Questions and positions
Legal issues
- 01
Whether there are reasonable prospects that another court may impose a lesser sentence on appeal.
- 02
Whether the sentence of 15 years' imprisonment for murder and contravention of a protection order is fair and proportionate.
Party arguments
- Applicant
- The applicant contends that another court may reasonably impose a lesser sentence, relying on his personal circumstances and the fact that he showed remorse by pleading guilty.
- Respondent
- The respondent maintains that the seriousness of the crime, committed during a tumultuous relationship and involving intimate partner violence, warrants the sentence imposed and that no reasonable prospects of success on appeal exist.
05
Court’s reasoning
Legal principles
- 01
Mokela v The State 2012 (1) SACR 431 (SCA) para [9]
Sentencing is pre-eminently within the discretion of the sentencing court, and appeal courts may only interfere in limited circumstances.
- 02
S v Pieters 1987 (3) SA 717 (A) at 727F-H; S v Malgas 2001 (1) SACR 469 (SCA) para 12; Director of Public Prosecutions v Mngoma 2010 (1) SACR 427 (SCA) para 11; S v Le Roux & others 2010 (2) SACR 11 (SCA) at 26b-d
The limited circumstances under which an appeal court can interfere with a sentence have been set out in prior judgments.
- 03
Jimmy Sebone Seemela v The State (20508/14) [2015] ZASCA 41 (26 March 2015)
Deterrent sentences are called for in cases of intimate partner violence, which remains a serious social problem.
- 04
S v Vilakazi 2012 (6) SA 353 (SCA) para [58]
Sentences must be fair and proportionate to the objective gravity of the offence.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the sentence imposed was fair and proportionate to the gravity of the offence, considering the seriousness of murder and the prevalence of intimate partner violence. The applicant's personal circumstances and remorse were duly considered, but did not outweigh the need for deterrence and the protection of society. The court held that sentencing discretion lies with the trial court and that no reasonable prospects of success on appeal exist, thus leave to appeal was refused.
Obiter and limits
- Intimate partner violence remains alarmingly prevalent as a serious social problem in South Africa and deterrent sentences are necessary to address it.
- Society must be committed to the protection of the rights of all persons, including women.
Court disposition
Leave to appeal is refused.
- Leave to appeal against the sentence is refused.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVSION, PRETORIA)
CASE NO: CC 55/14
DATE: 23/3/2016
Not reportable
Not of interest to other judges
Revised
In the matter between
JABULANI
JOSEPH LUKHELE
APPLICANT
and
THE
STATE RESPONDENT
JUDGMENT
(LEAVE TO APPEAL)
VAN OOSTEN J:
[1] This is an application for leave to appeal against a sentence of 15 years’ imprisonment imposed in respect of murder and the contravention of the conditions of a protection order.
[2] In support of the contention that another court may reasonably impose a lesser sentence, counsel for the applicant once again made reference to the personal circumstances of the applicant and the fact that he had shown remorse in pleading guilty. I have duly considered all those factors as well as the seriousness of the crime of murder which was committed in the course of a tumultuous relationship between the applicant and the deceased.
[3] It is trite that sentencing remains pre-eminently within the discretion of the sentencing court. In Mokela v The State 2012 (1) SACR 431 (SCA) para [9], Bosielo JA put it thus:
‘This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served. The limited circumstances under which an appeal court can interfere with the sentence imposed by a sentencing court have been distilled and set out in many judgments of this Court. See S v Pieters 1987 (3) SA 717 (A) at 727F-H; S v Malgas 2001 (1) SACR 469 (SCA) para 12; Director of Public Prosecutions v Mngoma 2010 (1) SACR 427 (SCA) para 11; and S v Le Roux & others 2010 (2) SACR 11 (SCA) at 26b-d.’
[4] This is a serious case of murder. By shooting and killing the deceased the applicant acted in a manner that is unacceptable in any civilised society that ought to be committed to the protection of the rights of all persons, including women. Intimate partner violence remains alarmingly prevalent as a serious social problem in our society and deterrent sentences are called for (see Jimmy Sebone Seemela v The State (20508/14) [2015] ZASCA 41 (26 March 2015)).
[5] When viewed against the objective gravity of the offence (S v Vilakazi 2012 (6) SA 353 (SCA) para [58]) I am of the view that the sentence imposed is fair and proportionate to the offence the appellant has been convicted of.
[6] In my view no reasonable prospects of a successful appeal exists and it follows that leave to appeal ought to be refused.
[7] In the result leave to appeal is refused.
_____
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
DATE OF HEARING 23
MARCH 2016
DATE OF JUDGMENT 23
MARCH 2016
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