Mfazwe and Others v S (A562/07) [2009] ZAWCHC 160; 2010 (1) SACR 504 (WCC) (29 October 2009)

Mfazwe and Others v S (A562/07) [2009] ZAWCHC 160; 2010 (1) SACR 504 (WCC) (29 October 2009)

The court held that once substantial and compelling circumstances are found under section 51(3)(a) read with section 51(1) of the Criminal Law Amendment Act, the trial court is precluded from imposing life imprisonment. The use of the word 'may' in the section was interpreted, in light of legislative intent and subsequent amendment substituting 'must', to mean that the court is obliged to impose a lesser sentence. The trial court misdirected itself in law by imposing life imprisonment despite finding substantial and compelling circumstances. The appellate court was therefore at large to reconsider the sentences. After evaluating the aggravating and mitigating factors, including the brutal...

Citation
[2009] ZAWCHC 160
Parties
Appellant: Sipho Mongezi Mfazwe; Appellant: Mongezi Bobotyane; Appellant: Dina Manuela Rodrigues; Appellant: Zanethemba Gwada; Appellant: Bonginkosi Sigenu; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
29 October 2009
Case Number
A562/07
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal against sentence for murder by Appellants 1, 2, and 3 succeeds; sentences of life imprisonment set aside and substituted with 26 years' imprisonment. Appeals on other counts by Appellants 1 and 2 fail; sentences confirmed and to run concurrently. Appeals by Appellants 4 and 5 fail; sentences confirmed.
Judges
E Moosa
Legal Topics
Minimum Sentencing Legislation, Substantial and Compelling Circumstances, Sentencing Discretion, Murder, Robbery With Aggravating Circumstances
Criminal Law Minimum Sentencing Legislation Substantial and Compelling Circumstances Sentencing Discretion Murder Robbery With Aggravating Circumstances

Case Brief

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Parties

Sipho Mongezi Mfazwe

Appellant

Mongezi Bobotyane

Appellant

Dina Manuela Rodrigues

Appellant

Zanethemba Gwada

Appellant

Bonginkosi Sigenu

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the trial court, after finding substantial and compelling circumstances, may still impose life imprisonment under section 51(3)(a) read with section 51(1) of the Criminal Law Amendment Act 105 of 1997.
  2. 2 Whether the trial court misdirected itself in law by imposing life imprisonment despite finding substantial and compelling circumstances.
  3. 3 What constitutes an appropriate sentence for the appellants in respect of the murder and robbery charges.

Ratio Decidendi

The court held that once substantial and compelling circumstances are found under section 51(3)(a) read with section 51(1) of the Criminal Law Amendment Act, the trial court is precluded from imposing life imprisonment. The use of the word 'may' in the section was interpreted, in light of legislative intent and subsequent amendment substituting 'must', to mean that the court is obliged to impose a lesser sentence. The trial court misdirected itself in law by imposing life imprisonment despite finding substantial and compelling circumstances. The appellate court was therefore at large to reconsider the sentences. After evaluating the aggravating and mitigating factors, including the brutal...

Court Disposition

Appeal against sentence for murder by Appellants 1, 2, and 3 succeeds; sentences of life imprisonment set aside and substituted with 26 years' imprisonment. Appeals on other counts by Appellants 1 and 2 fail; sentences confirmed and to run concurrently. Appeals by Appellants 4 and 5 fail; sentences confirmed.

Orders

  • The appeal of Appellants 1, 2 and 3 against the sentence in respect of the murder count succeeds. The sentences of life imprisonment are set aside and substituted with a sentence of 26 years imprisonment, antedated to 28 June 2007.
  • The appeal of Appellants 1 and 2 in respect of the other counts fails and the sentences imposed in respect of those counts are confirmed, but such sentences shall run concurrently with the sentences imposed in respect of the murder count.