S v Mokoena

• Jurisdiction: South Africa
• Judge: Cloete JA, Ponnan JA and Snyders JA
• Judgment Date: 19 March 2009
• Citation: 2009 (2) SACR 309 (SCA)
• Docket Number: 563/2008
• Hearing Date: 02 March 2009
• Counsel: NL Skibi for the appellant, instructed by the Legal Aid Board, Bloemfontein. C Steyn for the State.
• Court: Supreme Court of Appeal

Cloete JA:

[1] The appellant and his co-accused were charged with murder and F robbery with aggravating circumstances before Hattingh J and assessors in the Orange Free State Provincial Division sitting at Parys. The State alleged that on 27/2 8 February 1995 and at Petrus Steyn the appellant and his co-accused killed Mrs Catarina Johanna Koster (the deceased) in her home and robbed her of, inter alia, her car, stove, hi-fi set, radio and personal jewellery. The appellant tendered a plea of guilty to culpable G homicide on the first count, which was rejected by the State, and a plea of guilty on the second count, which the State accepted. The appellant was ultimately convicted as charged and his co-accused was convicted only of theft on the second count.

[2] The trial court sentenced the appellant to 40 years' imprisonment on H the first count and 15 years' imprisonment on the second count, but ordered that half of the latter sentence should run concurrently with the former, so that the effective sentence of imprisonment was 47 and a half years.

[3] The appellant sought leave to appeal against sentence, and condonation I for his failure to have done so timeously, from the trial court. The application for condonation was refused primarily for the reason that it had no prospects of success. The appellant appeals against this order. Leave is not necessary from this court or the court a quo: S v Gopal, [1]

Cloete JA

S v Moosajee. [2] There was also an application for condonation before this A court for non-compliance with certain of its rules. As the prospects of success on appeal are all-important to both applications, I turn to consider the merits of the appeal.

[4] As I have said, the deceased lived in Petrus Steyn. Her house was surrounded by burglar bars. The appellant was her gardener. She was B found dead in a bath half full of water with her arms and also her legs tied tightly together with wire coat hangers. There was also a wire coat hanger tied around her neck. The medical evidence showed that she had been strangled by her assailant - which, it was common cause, was the appellant - using his right hand. She had other bruises, including a black C eye. A number of articles were missing from her house although there were no signs of forcible entry. The appellant said in his plea explanation (made in terms of s 112(2) of the Criminal Procedure Act 51 of 1977) that after he had left the deceased in the bath, he locked the house and went to his dwelling. Later the same night he returned with his D co-accused and loaded goods from the deceased's house into her motor vehicle, which was driven to the appellant's shack at Mamafubedu and thereafter to the dwelling of his co-accused. Stolen goods were off-loaded at both places. They subsequently rolled the vehicle. They were arrested the following day.

[5] In refusing condonation, the learned trial judge exercised a narrow E discretion [3] with which this court is not entitled to interfere unless it was not exercised judicially. That is the case here because the discretion was exercised as a result of a material misdirection. The misdirection had its origin in the following passages of the record which reflect what the learned trial judge said to the prosecutor (Ms Bester) and counsel for the F appellant (Mr Marais) during argument on sentence:

'Me Bester: Met betrekking tot termyne, u edele. Langtermyn gevangenisstraf ten aansien van beskuldigde 1 ten aansien van aanklag 1, ook ten aansien van aanklag 2. Ek wil my nie regtig aan 'n termyn gebonde hou nie, maar ek dink in aanklagte 1, 20-25 jaar en aanklag 2 dink ek G in die omgewing van 12 tot 15 jaar, u edele.

Hof: Juffrou, het u gesien wat sê die Gevangeniswet? Hy sê waar 'n hof 'n bepaalde vonnis oplê dan kan daardie persoon, dan kom daardie persoon na die helfte daarvan verstrek is vir oorweging, vir parool in oorweging. Met ander woorde ek gee hom 20 jaar, na 10 jaar dan stap hy hier buitekant rond. H

Me Bester: Dit is korrek.

Hof: Hoekom gee ek hom nie liewer dan 'n 100 jaar nie?

Me Bester: Ek het nie 'n probleem daarmee nie, u edele.

Hof: U het nie 'n probleem nie? I

Cloete JA

A Me Bester: Ek het geen probleem daarmee nie.

Hof: Ja.

Me Bester: Regtig.

Hof:Dan gee ek hom lewenslank dan kom hierdie...