Makhoba v S (AR 397/12) [2013] ZAKZPHC 43 (20 August 2013)

Makhoba v S (AR 397/12) [2013] ZAKZPHC 43 (20 August 2013)

The appellate court found that the trial court did not make a definitive finding of planning or premeditation at conviction, only referencing it at sentencing. Even if premeditation were assumed, substantial and compelling circumstances existed, including the longstanding feud, the appellant's personal circumstances, and the nature of the intention (dolus eventualis rather than dolus directus). The sentence of life imprisonment was held to be disproportionately severe. The court substituted a sentence of twenty years' imprisonment for murder, antedated to the original sentencing date, and directed that the sentence for attempted murder run concurrently, resulting in an effective sentence...

Citation
[2013] ZAKZPHC 43
Parties
Appellant: Mhlephethwe Mzothule Makhoba; Respondent: The State
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
20 August 2013
Case Number
AR 397/12
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal against sentence upheld; sentence of life imprisonment set aside and replaced with twenty years' imprisonment, antedated to 27 March 2006, with sentences to run concurrently.
Judges
Van Zyl, Ntshangase, Ndlovu
Legal Topics
Minimum Sentencing, Planned or Premeditated Murder, Substantial and Compelling Circumstances, Concurrent Sentences, Non Parole Period, Sentence Appeal
Criminal Law Minimum Sentencing Planned or Premeditated Murder Substantial and Compelling Circumstances Concurrent Sentences Non Parole Period Sentence Appeal

Case Brief

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Parties

Mhlephethwe Mzothule Makhoba

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the trial court correctly imposed a sentence of life imprisonment for murder under Part I of Schedule 2 of the Criminal Law Amendment Act 105 of 1997.
  2. 2 Whether substantial and compelling circumstances existed to justify a lesser sentence than the prescribed minimum.
  3. 3 Whether the sentences for attempted murder and murder should run concurrently.

Ratio Decidendi

The appellate court found that the trial court did not make a definitive finding of planning or premeditation at conviction, only referencing it at sentencing. Even if premeditation were assumed, substantial and compelling circumstances existed, including the longstanding feud, the appellant's personal circumstances, and the nature of the intention (dolus eventualis rather than dolus directus). The sentence of life imprisonment was held to be disproportionately severe. The court substituted a sentence of twenty years' imprisonment for murder, antedated to the original sentencing date, and directed that the sentence for attempted murder run concurrently, resulting in an effective sentence...

Court Disposition

Appeal against sentence upheld; sentence of life imprisonment set aside and replaced with twenty years' imprisonment, antedated to 27 March 2006, with sentences to run concurrently.

Orders

  • The appeal against the sentence on Count 2 is upheld.
  • The sentence of life imprisonment on Count 2 is set aside and substituted with twenty years' imprisonment, antedated to 27 March 2006.