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NJABULO MKHIZE v. THE STATE RESPONDENT - (01 Apr 2019)

Court will not interfere with sentence imposed unless it is satisfied that, the sentence has been vitiated by a material misdirection or is disturbingly inappropriate

Criminal

Present appeal arises from a tragic incident which occurred on 10 July 2009 at the offices of the detective branch at Esikhawini, when Bongani Cebekhulu (the deceased) who was suspected of being in involved in car hijackings and armed robberies in the area of Jozini and Esikhawini, died whilst being interrogated by the five appellants. The Appellants were at that time members of the Special Task Team established to deal with a spate of armed robberies and car hijackings in the area of Jozini and Esikhawini.

As a result of the death of the deceased, the Appellants were charged with murder in the Esikhawini Regional Court. After a long trial, they were convicted of culpable homicide. The regional magistrate reasoned that, because the appellants were present at the offices during the interrogation, they acted in common purpose and that a reasonable person would have taken steps to guard against the possibility of death and the appellants failed to take such steps. She sentenced the Appellants to three years correctional supervision in terms of Section 271(1)(h) of the Criminal Procedure Act 51 of 1977. In addition, they were sentenced to five years’ imprisonment which was wholly suspended for a period of four years on condition that they were not convicted of any offence involving violence, committed during the period of suspension.

The Appellants then appealed to the KwaZulu-Natal High Court, Pietermaritzburg, against their convictions only. The High Court, after reading the record, formed the prima facie view that the sentence imposed by the trial court was too lenient. The High Court confirmed the convictions and set aside the sentences imposed by the regional magistrate and replaced it with sentences of seven years’ imprisonment of which two years was suspended for five years. The effective sentences imposed was thus five years’ direct imprisonment.

A prima facie case was presented against the Appellants which, in the absence of any contradictory evidence, became conclusive. It is trite that an accused’s failure to testify can be used as a factor against him only when at the end of the case for the State, the State has prima facie discharged the onus that rests on it. It cannot be used to supply a deficiency in the State case, that is to say where there is no evidence on which a reasonable man could convict.

In the present case, in the absence of any contradictory evidence, the State was entitled to assume that the undisputed evidence was correct. This evidence prima facie established that, all of the Appellants were present in the room when the deceased was assaulted and died. It lay exclusively within the power of the appellants to show what the true facts were and their failure to do so, entitles the court to infer that the truth would not have supported their case. The failure of the Appellants to testify and rebut the state case strengthened the prima facie case to one beyond reasonable doubt. The guilt of the Appellants was proved beyond reasonable doubt. The appeal against convictions must fail.

As to sentence, it is trite that, this Court will not interfere with the sentence imposed by the Court a quo unless it is satisfied that the sentence has been vitiated by a material misdirection or is disturbingly inappropriate. When the aggravating circumstances of this case are taken into account, their personal circumstances pale into insignificance. No remorse was shown by the Appellants and this is evidenced by their complicit silence in explaining how the deceased lost his life. The post mortem report indicate that, the deceased must have sustained a severe and prolonged form of assault. The sentences imposed by the trial court were very light. The High Court rightly concluded that the sentences do not accord with the principles of natural justice and proper punishment.

As police officers the appellants have a duty to protect the public. The deceased deserved to be treated with dignity. He had the right not to be assaulted and unlawfully subjected to interrogation which ultimately led to his death. Society cannot tolerate lawlessness and violence on the part of the police officers. There is no basis for interfering with the sentence. Appeal is dismissed.

Tags : CONVICTION   SENTENCE   LEGALITY  

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