Nkosi v S (A462/2016) [2017] ZAGPPHC 1081 (19 October 2017)

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION,

PRETORIA

CASE NO:A462/2016

19/10/2017

(1)

REPORTABLE

(2)

NOT OF INTEREST TO OTHER JUDGES

(3)

REVISED

In the matter between:

MICHAEL

NKOSI

APPELLANT

and

THE

STATE

RESPONDENT

JUDGMENT

RANCHOD J:

[1] This is an appeal against sentence only, leave to appeal having been granted by Ledwaba DJP on 24 February 2016 as Webster J, who presided in the trial, had retired in the meantime. The appellant pleaded guilty to, and was convicted of, one count of murder (read with section 51(1) of Act 105 of 1997[1] (the Act)) and one of robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 (the Criminal Procedure Act). He was sentenced to life imprisonment for the murder and 15 years' imprisonment for the robbery count. The appellant was legally represented during the trial.

[2] The charges against the appellant emanated from an incident that occurred on 13 July 2013. The appellant pleaded guilty in terms of section 112(2) of the Criminal Procedure Act on the following facts which were accepted by the State:

'In the North Gauteng High Court of South Africa, Pretoria , case number CC139/2013, in the matter between the state and Michael Nkosi.

This is a statement in terms of section 112(2) of the Criminal Procedure Act, Act 51 of 1977.

I, Michael Nkosi, the accused in this matter declare the following:

I confirm that the charge as set out in the indictment was explained to me by my legal representative and I understand it fully.

I plead guilty to the charges as set out in the indictment, murder and robbery, as read with section 51(1) of Act 51 of 1977, and I do so freely and voluntarily, without undue influence and with a sound mind.

All legal consequences have been explained to me by my legal representatives and I understand them fully.

I admit the following:

In that upon or about 13 July 2012 and at or near 15th Street and Jacob Street, Gezina, in the district of Pretoria, I, the accused, did unlawfully and intentionally kill Jan Adriaan Kruger, an adult male. I committed the said offence when I hear accused 1, Frank Sebina, screaming in a room where he was sleeping at that time. I had earlier seen the car that was driven by the accused parked at the gate.

Upon entering the room where I hear screams I took a hammer and I started to hit the deceased with it. I do not remember how many times, but he fell down unconscious.

That was when I took the opportunity to ask accused 1 what is wrong, why was he screaming. He then told me that the deceased wanted to have sexual intercourse with him and that he had met with the deceased at a particular complex and they had exchanged numbers.

While I was still having a conversation with Frank Sebina, accused 1, the deceased woke up.

I further admit that I further hit him several more times with a hammer, I am not sure whether he died at that particular time.

I then proceeded to ask accused 1 to assist me in removing the body from the premises and disposing the body at Mamelodi. The deceased had a cellphone with him, I took it and I took his car, the Hyundai Atos, with registration number RYP 759GP. Inside the car there was another cellphone that I also took.

I further admit that with the help of accused 1 we carried the body and placed it at the back seat and we drove to Mamelodi. I did not know which section, but I decided on the perfect spot to dump the body. There were some big pipes on the side of the road, that was when we decided to dispose of the body.

We then drove home in Mpumalanga, I took the car and the two cellphones.

I was arrested at home and the deceased's car was found in my yard where at that time I was residing with my girlfriend.

The cellphones I had already sold.

I admit that I knew that my conduct was unlawful and punishable by law.'

[3] It is to be noted that although in the indictment it is only the murder count which was stated to be read with the provisions of the Act, the accused in his plea says he also pleads guilty to the robbery charge as read with the provisions of the Act. However, as will be apparent later on in this judgment, the conviction for robbery cannot stand. I therefore need not concern myself with this aspect any further.

[4] The trial court found the appellant guilty on the basis of his plea and the matter was adjourned for the State to obtain a probation officer's report prior to sentencing. The report was duly obtained and the appellant was sentenced on 6 August 2014.

[5] The appellant contends that he should not have been sentenced in terms of section 51(1) of the Act for pre-meditated murder. It is contended that the trial court misdirected itself when it said during judgment on conviction that:

'The court is satisfied that the accused had admitted unequivocally all the elements, both the murder (sic) of murder as well as the robbery with aggravating circumstances. The deceased was asleep in his vehicle when he was attacked by the accused, who used a hammer. Despite the screams of the deceased he continued to assault the deceased and he has already indicated admitted having driven away in the deceased (sic) motor vehicle with the registration set out in the indictment, as well as his cell and another cell phone that was found in the vehicle.'

[6] During sentencing proceedings the learned Judge said:

'The evidence against the accused was that the deceased had some difficulties with the motor vehicle.'

[7] The learned Judge's remarks during the course of giving judgment that the deceased was asleep in his motor vehicle or that he had some difficulties with the motor vehicle are, with respect, incorrect when one has regard to the plea of the appellant. They are not found anywhere in the record of the proceedings.

[8] In any event, a plain reading of the plea shows that the appellant pleaded guilty to pre-meditated murder as he stated that he was pleading guilty to murder read with section 51(1) of the Act which provides for planned or pre-meditated murder. S v Jansen 1999 (2) SACR 368 (C) is instructive in this regard. I quote from the headnote -

'Where an accused pleads guilty to a charge and hands in a written statement in terms of s 112(2) of the Criminal Procedure Act 51 of 1977, setting out the facts which he admits and on which he has pleaded guilty; and the State accepts the plea, the plea so accepted constitutes the essential factual matrix on the basis of which sentence must be imposed.'

[9] Counsel for the appellant argued that the killing of the deceased was not pre-meditated. It was, as I understood counsel's submission, done in the heat of the moment as the appellant was responding to his friend's screams for help when the deceased was making sexual advances on him. This argument also overlooks the fact that the appellant in effect pleaded guilty to pre-meditated murder.

[10] The appellant initially assaulted the deceased immediately upon entering his friend's room without inquiring about what the problem was. It was only after he had viciously beaten the deceased and the latter became unconscious that he enquired from his friend why he was screaming. But the matter did not end there. The deceased regained consciousness. The appellant's counsel conceded that at that stage the deceased posed no danger to the appellant or his friend as he had already been severely injured. The appellant nevertheless proceeded to beat him up further with the hammer.

[11] The crucial question is whether at the time when the appellant decided to beat up the deceased a second time, and proceeded to do so, he formed the pre-meditation to kill him. In Kekana v The State (629/2013) [2014] ZASCA 158 (1 October 2014) the Supreme Court of Appeal said-

'12. Another argument advanced on behalf of the appellant was based on S v Raath,[2009 (2 ) SACR 46 (CPO)] where it was held that to prove premeditation, the State must lead evidence to establish the period of time between the accused forming the intent to murder and the carrying out of his intention. In the present matter there is no evidence as to how much time passed between the appellant's admitted decision to kill the deceased and when he doused the bed with petrol and set it alight. But a consideration of the appellant's evidence suggests that it was a matter of a few minutes, at the least.

Mathopo AJA went on the hold -

13. In my view it is not necessary that the appellant should have thought or planned his action a long period of time in advance before carrying out his plan. Time is not the only consideration because even a few minutes are enough to carry out a premeditated action.

14. The appellant pertinently admitted that after he saw his clothes, he formed an intention and in his own words he decided to end it all and kill the deceased. He then gave effect to this decision. He went outside to fetch petrol. He re-entered the house and poured it on the bed of the deceased while at the same time telling her of his intention. He set it alight with the petrol. He locked the deceased in the room. He spilled the petrol in the passage, kitchen and dining room. The locking of the door and further pouring of petrol show that he was carefully implementing a plan to prevent her escape and to ensure that she died in the blaze. To my mind, this is proof of premeditation on his part. It follows that the appellant was correctly convicted of premeditated murder.'

[12] In the present matter, the deceased posed no danger when he regained consciousness. In my view, it is at the moment when the appellant decided to further assault the deceased with the hammer that the pre­ meditation to murder was formed. It follows that the appellant was correctly convicted of pre-meditated murder.

[13] I turn then to the conviction for robbery with aggravating circumstances .

[14] Robbery is defined as-

‘. . . the theft of property by intentionally using violence or threats of violence to induce submission to its taking.’[2]

[15] The appellant pleaded that he assaulted the deceased because he heard his friend's screams for help - not to rob the deceased. It appears that the decision to take the deceased's cellular phones and his motor vehicle was an afterthought.

[16] In my view, the trial court should have realised that the facts as pleaded by the appellant could not sustain a conviction for robbery

with aggravating circumstances and refused to accept the plea of guilty on that count and seek clarification from both the appellant's

legal representative and State counsel. The appellant should have been found guilty of theft rather than robbery. The trial court

misdirected itself in this regard. However, the appellant did not apply for leave to appeal against the conviction.

[17] In my view, where a court of appeal is faced with what was clearly prejudicial to an accused during his trial in that the facts in his plea clearly indicated that he should have been convicted only for theft and not robbery, then the appeal court can interfere in terms of its inherent powers to protect the appellant's fair trial rights[3].

[18] The learned author of Hiemstra's Criminal Procedure says in the commentary on s 322 of the Criminal Procedure Act (which deals with powers of a court of appeal where there is an appeal against a conviction) at 31-39

that-

'Whatever might have been the position historically, there ought to be unanimity now that powers of the court of appeal are limited to what is contained in this and related sections of this Act (Sefatsa and Others v Attorney-General, Transvaal and Another 1989(1) SA 821 (A)) or required by the Constitution (C 39(1)). The idea that the court of appeal had the inherent power to interfere when in its view an injustice has been done, irrespective of the absence of any statutory power for it to do so, is nevertheless sometimes raised. Apart from its ever present responsibility to adhere to the constitutional requirement that the accused be given a fair trial (C 35(3)), the court's powers are limited to the following:

(1) ...

(2) Changing the conviction by substituting it with another competent judgment.'

[19] In my view, this court is therefore at liberty to interfere with the conviction notwithstanding that it has not been pertinently raised on appeal but only obliquely in counsel's heads of argument.

[20] I turn then to the issue of sentence.

[21] In every appeal against sentence, the court hearing an appeal should be guided by the principle that punishment is pre-eminently a matter for the discretion of the trial court and should be careful not to erode such discretion. Hence the further principle that the sentence should only be interfered with if the discretion has not been judicially and properly exercised - in other words, whether the sentence is vitiated by irregularity or misdirection or is disturbingly inappropriate[4].

[22] The State proved no previous convictions against the appellant. In fact , according to the record, the issue of any previous convictions was not even canvassed after the appellant was convicted. The trial court referred to Ms Baloyi's report where she says the appellant told her that he had previously been convicted of assault with intent to commit grievous bodily harm and was given a suspended sentence of five years imprisonment. However, as the State had not proved it, it will not be taken into consideration in this appeal. He will be regarded as a first offender.

[23] The accused's personal circumstances are that he was 38 years old at the time of the trial.. He was unmarried but he has two children who were aged 20 and 11 years respectively. Both the children were attending school. His wife was employed. He had been in custody since his arrest. He has a grade 5 level of education. He used to do piece jobs, inter alia, as a tiler and painter.

[24] Counsel submitted that the appellant gave his co-operation to the police after his arrest and also pleaded guilty to both charges. They are both mitigating factors sufficient to be considered substantial and compelling circumstances to deviate from the prescribed minimum sentence. I am not persuaded by this submission. The appellant fled to Mpumalanga with the deceased's cellular phones and motor vehicle immediately after dumping his body in a veld near Mamelodi. He had sold the phones. He did not voluntarily go to the police but was traced to where he was and arrested. He no doubt realised that 'the game was up' which is why, in my view, he decided to co-operate and pleaded guilty.

[25] It was also contended that the appellant grew up under very difficult circumstances and was removed from his mother and placed in a place of safety which were mitigating factors . Mitigating they may be, but not to the extent that they are substantial and compelling circumstances to justify departure from the prescribed minimum sentence.

[26] Apart from a short passage in Ms Baloyi's report that the appellant 'verbalised remorse' there is nothing to indicate that there was genuine remorse on his part. Ms Baloyi said the appellant felt 'embarrassed' by the murder which seems to indicate that he was more concerned about the public's view of him rather than genuinely feeling sorry for his actions. As was said in S v Matyityi 2011 (1) SACR 40 (SCA) at 47-

'There is, moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one's error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions. There is no indication that any of this, all of which was peculiarly within the respondent's knowledge, was explored in this case.'

[27] In my view the trial court correctly found that there were no substantial and compelling circumstances to deviate from the prescribed minimum sentence of life imprisonment on the murder charge.

[28] Insofar as a conviction for theft is concerned it appears from the record that the motor vehicle was recovered. The decision to steal appears to have been made on the spur of the moment. In my view a sentence of 5 years would be appropriate in the circumstances of this case.

[29] I would make the following order:

1. The appeal against sentence on the murder count is dismissed.

2. The conviction for robbery with aggravating circumstances is set aside and in its place is substituted conviction for theft.

3. The appeal against the sentence on robbery with aggravating circumstances is upheld and the sentence is set aside.

4. The appellant is sentenced to a term of imprisonment for five years for the conviction of theft which sentence is ante-dated to 6 August 2014.

5. The sentence imposed for the theft conviction is ordered to run concurrently with the sentence imposed for the murder charge.

N RANCHOD

JUDGE

OF THE HIGH COURT

I

AGREE

T

M MAKGOKA

C

SHIRILELE

ACTING

JUDGE OF THE HIGH COURT

Appearances:

Counsel on behalf of Appellant : Adv. L Augustyn

Instructed by

: Legal Aid Board

Counsel on behalf of Respondent : Adv. M.M Mashuga

Instructed by

: Director of Public

Prosecutions, Pretoria

Date heard

: 24 March 2017

Date delivered

: 19 October 2017

[1] Section 51( I ) of Act I 05 of 1997 provides as follows:- '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 of an offence referred to in Part I of Schedule 2 to imprisonment for life.' The relevant section of Part 1 of Schedule 2 regarding murder provides - 'Murder. when (a) It was planned or premeditated;'

[1] Section 51( I ) of Act I 05 of 1997 provides as follows:-

'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 of an offence referred to in Part I of Schedule 2 to imprisonment for life.'

The relevant section of Part 1 of Schedule 2 regarding murder provides -

'Murder. when

(a) It was planned or premeditated;'

[2] South Africa n Criminal Law and Procedure, Vol III. Common Law Crimes - J.R.L Milton642.

[3] Section 35 of the Constitution of the Republic of South Africa. 1 996 provides that every accused person has a right to a fair trial.

[4] S v Rabie 1975 (4) SA 855 (A): S 1· Kgosimore1999 (2) SACR '.B8 (SCA) para 10.