Papa v S (A93/2023) [2024] ZAGPJHC 1326 (12 March 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2024 >> [2024] ZAGPJHC 1326 | Noteup | LawCite sino index ## Papa v S (A93/2023) [2024] ZAGPJHC 1326 (12 March 2024) Papa v S (A93/2023) [2024] ZAGPJHC 1326 (12 March 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2024_1326.html sino date 12 March 2024 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG Case Number: A93/2023 DPP Ref Number: 10/2/5/1 (2023/048 (The contends of this judgment is to be drawn to the attention of the Department of Correctional Supervision) REPORTABLE: No OF INTEREST TO OTHER JUDGES: No JUDGE KUNY       12 March 2024 In the matter: NKOSI WONDER PAPA                                                              APPELLANT v THE STATE                                                                                 RESPONDENT JUDGMENT ON SENTENCE KUNY J: 1) The appellant was charged in the Regional Division of Gauteng, Johannesburg on a charge of murder alleged to have been committed on 6 September 2021, read with the provisions of section 51(2) (a) of Act 105 of 1997. 2) The court convicted the appellant of causing the death of his girlfriend (the deceased) from blunt force injuries to her head. However, the court found that there was insufficient evidence to conclude that the appellant had intended, by his assaults upon the deceased, to cause her death.  He found that the appellant had negligently caused the death of the deceased and accordingly, he was convicted on a competent verdict of culpable homicide. He was sentenced to 15 years imprisonment. He was also declared unfit to possess a firearm. 3) Leave to appeal against conviction was, in my view, correctly refused and only granted in respect of sentence. Accordingly, this is an appeal against sentence only. 4) The appellant sought condonation for the late filing of his appeal. The state did not oppose this application. I was satisfied that he adequately explained his reasons for not filing his appeal in time and condonation was granted at the hearing of the appeal. 5) It is trite that the imposition of sentence is pre eminently a matter that falls within the discretion of the trial court. In S v Malgas 2001 (2) SA 1222 (SCA) at paragraph 12, the court held: 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. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate Court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate Court is at large. 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’. 6) The appellant pleaded not guilty to have killed the deceased. After he was convicted, a previous conviction dated 2 December 2012 on a charge of murder was proved. The appellant received a 15 year prison sentence for this conviction. 7) Whilst giving evidence in mitigation, the appellant was asked about this previous conviction. He testified that the murder conviction related to the death of his previous girlfriend, who was the mother of his 13 year old child. He explained to the court (in relation to that case) that he had fought with her and that she had slipped and fallen on the floor and hit her head. Her injuries were fatal. The defendant was released on parole in March 2019, having served approximately half of his 15 years sentence. Not more than 18 months after his release he was arrest and charged with the murder of his second girlfriend. 8) The accused explanation in relation to this previous conviction, that his first girlfriend had suffered a fatal injury when she slipped and hit her head, was clearly not a lie and not accepted by the court.  The appellant maintained his innocence throughout the proceedings forming the subject of this appeal. He demonstrated a complete absence of any remorse whatsoever. 9) It was argued on behalf of the appellant that the sentence was unduly severe because the appellant had been only convicted of culpable homicide and not murder. I do not agree. 10) The appellant’s previous murder conviction related to the death of the appellant’s partner, in similar circumstances to the present case. There is a common theme and strong association between the two cases.  Clearly, the appellant did not learn from the error of his ways and his imprisonment for his murder conviction had did not have any rehabilitative effect on him. He has a propensity for violence towards an intimate partner. I find the sentence of 15 years imprisonment to be completely appropriate in the circumstances. The fact that he was only convicted of culpable homicide does not detract from the severity of the offence and that need for a harsh punishment. 11) I direct that this judgment be brought to the attention of the Department of Correction Supervision. If and when the appellant applies for parole, this judgment is to be placed before the parole board and considered as part of the factors to be taken into account regarding whether and if so, when the appellant should be released on parole. 12) In all the circumstances, the appeal is dismissed and the appellant’s sentence is confirmed. JUDGE S KUNY JUDGE OF THE HIGH COURT GAUTENG DIVISION, JOHANNESBURG ACTING JUDGE N COERTSE JUDGE OF THE HIGH COURT GAUTENG DIVISION, JOHANNESBURG Date of hearing: 24 February 2024 Date of judgment: 12 March 2024 For the appellant: Adv S Hlazo - Sindisah@legal aid.co.za For the respondent: Adv A de Klerk - adeklerk@npa.gov.za sino noindex make_database footer start