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IN THE HIGHT COURT OF SOUTH AFRICA

(Transvaal Provincial Division)

Date : 9 February 2009 Case A1016

TLADI RONNY MNGUNI APPELLANT

vs

THE STATE RESPONDENT

JUDGMENT

VAN ROOYEN AJ

[1] The appellant appeals against both conviction and sentence on a charge of murder. A sentence of fifteen years' imprisonment was imposed. 1 need not deal with the caution and discharge on two lesser convictions, since, to my mind, the State has proved beyond a reasonable doubt that the appellant had shot the deceased.

[2] To put it in a nutshell: the appellant had been in an altercation with the deceased inside a saloon where they had been drinking. After the appellant had thrown beer over one of the ladies present, he was slapped through the face by the deceased and he apologized. The appellant left the saloon and, according to the evidence, the deceased returned after about an hour and a half. He then called the deceased to meet him outside. Here, according to the evidence of two ladies, he was shot twice by the appellant. The ladies', according to their evidence, could clearly see from inside the saloon what was happening outside. The area was illuminated. The learned regional magistrate accepted their evidence and there is no reason to interfere with his finding on the facts.

[3] Although the appellant denied that he had shot him, I am satisfied that he was lying and that the evidence of two ladies inside the saloon that he had shot the deceased was satisfactory and that the State had proved its case beyond a reasonable doubt.

[4] The remaining question is whether this Court may, on appeal, intervene as to the sentence of fifteen years.

In S v Malgas 2001(2) SA 1222(SCA) Marais JA stated as follows:

"A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. . . . However even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as 'shocking', 'startling' or 'disturbingly inappropriate'.

The learned Judge of Appeal also said the following:

"[22] ... The greater the sense of unease a court feels about the imposition of a prescribed sentence, the greater its anxiety will be that it may be perpetrating an injustice. Once a court reaches the point where unease has hardened into a conviction that an injustice will be done, that can only be because it is satisfied that the circumstances of the particular case render the prescribed sentence unjust or, as some might prefer to put it, disproportionate to the crime, the criminal and the legitimate needs of society. If that is the result of a consideration of the circumstances the court is entitled to characterise them as substantial and compelling and such as to justify the imposition of a lesser sentence.

[23] While speaking of injustice, it is necessary to add that the imposition of the prescribed sentence need not amount to a shocking injustice ("^'n skokkende onreg" as it has been put in some of the cases in the High Court) before a departure is justified. That it would be an injustice is enough. One does not calibrate injustices in a court of law and take note only of those which are shocking.

[24] It has been suggested that the kind of circumstances which might qualify as substantial and compelling are those which reduce the moral guilt of the offender (analogously to the circumstances considered in earlier times to be capable of constituting "extenuating circumstances" in crimes which attracted the sentence of death). That will no doubt often be so but it would not be right to suppose that it is only factors diminishing moral guilt which may rank as substantial and compelling circumstances."

[5] In sentencing the appellant, the learned regional magistrate firstly stated that he would not take the previous convictions of the appellant into consideration, since they did not involve violence, in contrast to the present offence. The learned regional magistrate then stated as follows:

"Taking into consideration the seriousness of the offence and the interest of the community it is clear that you should be sentenced to a term of imprisonment. The Court is of the opinion that the only suitable sentence for murder is direct imprisonment. Not only with the deterrent effect that the sentence should have, but also with regard that the community should be protected from someone like you.

The court also take into account the fact that alcohol yet again played a role in this incident. As such the court regards the intake of alcohol with regard to commission of the offence as an aggravating circumstance.

The deceased presented absolutely no threat to you at the time that you inflicted the wounds on him. In fact, after the problems that you had had with the first complainant and apparently the deceased, you went away and you came back obviously with the intention of taking revenge.

The complainant was in no position to defend himself. This offence was committed within the vicinity of other people [whose lives] you endangered. You show absolutely no remorse for what you have done.

The court is of the opinion that taking into account the act on minimum sentences...there is absolutely no merit that the court can find in deviating from the prescribed sentence."

[6] Neither the defense nor the prosecution raised the matter of alcohol when sentence was considered. This aspect was introduced by the learned regional magistrate.To my mind the learned regional magistrate could only have raised the matter of alcohol in sentencing the appellant if he had raised this aspect during argument. And here it is introduced as an aggravating circumstance. It is true that inebriation may, in certain circumstances, be regarded as an aggravating circumstance - see section 2 of the Criminal Law Amendment Act 1 of 1988. However, justice requires that an accused be granted an opportunity to argue this matter. No such opportunity was granted to the appellant to argue this aspect and it was also not raised by the prosecution. I am, accordingly, of the view that there was a material misdirection by the court a quo and that this entitles this Court to interfere with the sentence.

[7] Once it is accepted that alcohol did play a role - as the court a quo did - then it can be accepted by this Court that it did play a role. It has been accepted by our Courts over many years that alcohol does dull the senses and that it could be an extenuating circumstance. When this is combined with anger, which was also part of the scenes which preceded the murder ( although at least an hour and a half had gone by), then it would be fair to at least attach some weight to the alcohol and anger in mitigation. I accordingly believe that, in the circumstances, it constituted a substantial and compelling circumstance which would justify a departure from the minimum of sentence of fifteen years. It was also accepted by the court a quo that the appellant was a first offender and this should,, at least also play some role, although in itself it would not be sufficient, since the Legislature has prescribed the minimum sentence for a first offender.

[8] I believe that justice would be served if the imprisonment of fifteen years be reduced to 12 years.

I propose the following order:

l.That the conviction of murder be upheld.

2. That the sentence be reduced to 12 years.

3. The other convictions are upheld and the caution and discharge are noted.

C W van ROOYEN

ACTING JUDGE OF THE HIGH COURT

9 February 2009

E MAKGOBA

JUDGE OF THE HIGH COURT

For the State: N Molepo from the Office of the Director of Public Prosecutions, Pretoria

For the Appellant: LM Tshabalala from the Pretoria Justice Centre.

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