S v Makena

• Jurisdiction: South Africa
• Judge: Webster J, Ranchod J and Pakati AJ
• Judgment Date: 15 February 2011
• Citation: 2011 (2) SACR 294 (GNP)
• Docket Number: A 723/2008
• Hearing Date: 01 November 2010
• Counsel: M Manyakane for the appellant, instructed by the Legal Aid Board, Pretoria. S Scheepers for the State.
• Court: North Gauteng High Court, Pretoria

Webster J: I

[1] The appellant is before a full bench of this court on appeal against a sentence of a single judge sitting with assessors, leave to do so having been granted by the Supreme Court of Appeal.

[2] The appellant, having pleaded guilty, was convicted of the following crimes, viz — J

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(i)

A murder;

(ii)

robbery; and

(iii)

housebreaking with intent to steal and theft.

[3] He was sentenced on those corresponding counts as follows —

(i)

40 years' imprisonment;

(ii)

B 15 years' imprisonment; and

(iii)

10 years' imprisonment.

It was ordered that the sentences on the counts of murder and robbery run concurrently. The cumulative effect of the sentence is therefore 50 years' imprisonment. The trial court further recommended that the C appellant be considered for parole only after serving 30 years of the term of imprisonment.

[4] It is now trite that the imposition of sentence is pre-eminently a matter for the trial court. A court of appeal will not interfere with a sentence unless it is satisfied that the trial court failed to exercise the D discretion bestowed upon it in a 'proper and reasonable' manner. As Scott JA held in S v Kgosimore 1999 (2) SACR 238 (SCA) para 10 at 241:

'It is trite law that sentence is a matter for the discretion of the court burdened with the task of imposing the sentence. Various tests have E been formulated as to when a Court of appeal may interfere. These include whether the reasoning of the trial court is vitiated by misdirection or whether the sentence imposed can be said to be startlingly inappropriate or to induce a sense of shock or whether there is a striking disparity between the sentence imposed and the sentence the Court of appeal would have imposed. All these formulations, however, are aimed F at determining the same thing; viz whether there was a proper and reasonable exercise of the discretion bestowed upon the court imposing sentence. In the ultimate analysis this is the true inquiry. (Compare S v Pieters 1987 (3) SA 717 (A) at 727G – I.) Either the discretion was properly and reasonably exercised or it was not. If it was, a Court of appeal has no power to interfere; if it was not, it is free to do so. I can, G accordingly, see no juridical basis for the stricter test suggested by counsel; nor is there anything in s 316B of the Act, or for that matter s 310A, to suggest otherwise. (See also S v Anderson 1964 (3) SA 494 (A)).'

[5] It is important to highlight that the offences giving rise to the trial H against the appellant occurred in 1996, ie prior to the enactment of the General Law Amendment Act 105 of 1997.

[6] A brief synopsis of the facts of the crimes the appellant was convicted of is as follows:

[6.1]

The appellant and his former co-accused broke into the premises I of the complainant (in the count of housebreaking and theft with the intention to steal). Having done so, they removed a large quantity of household goods, clothing, and jewellery and hid them. In the evening, while they were loading the stolen goods under cover of darkness into the appellant's vehicle, the deceased came upon them at the scene. In his plea explanation the appellant J described how the deceased pointed a firearm at him and his

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accomplice. A struggle ensued between the appellant and the A deceased. The appellant and his accomplice overpowered the deceased and removed the firearm (a Z88 pistol) from the deceased. The appellant then shot the deceased in the chest and right-rear hip. The deceased died as a result of such injuries;

[6.2]

The deceased had been in private clothes and had been travelling B in an unmarked private vehicle;

[6.3]

The appellant admitted in his statement in terms of s 112(2) of the Criminal Procedure Act 51 of 1977 that he had removed the deceased's R5 rifle, ammunition and cellular telephone with the necessary intention of permanently depriving him of such...