S v Mnguni

• Jurisdiction: South Africa
• Judge: Makgoba J, Van Rooyen AJ
• Judgment Date: 09 February 2009
• Docket Number: A1016
• Hearing Date: 09 February 2009
• Court: Transvaal Provincial Division
• Citation: 2009 JDR 0080 (T)

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. I 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 wha was happening outside. The area was illuminated. The learned regional magistrate accepted their evidence and there is no reason 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.

2009 JDR 0080 p2

Van Rooyen AJ

[4] The remaining question is whether this Court, 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...