IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL DIVISION, PIETERMARITZBURG

Case no: AR332/21

In the matter between:

KHULUMANI ZABALAZA MCHUNU APPELLANT

and

THE STATE RESPONDENT

ORDER

On appeal from: Greytown Regional Court (sitting as court of first instance):

(a) The appeal against the sentence in count 1 of murder succeeds.
(b) The sentence imposed by the regional court in count 1 is set aside and substituted
with a sentence of 10 years' imprisonment.
(c) The substituted sentence is antedated to 25 March 2021 , in terms of section 282
of the Criminal Procedure Act 51 of 1977.
(d) The sentence imposed in count 2 of attempted murder remains unaltered,
including the order that it is to run concurrently with the sentence in count 1.
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JUDGMENT

Khallil AJ (Poyo Dlwati ADJP concurring)

[1] Following a plea of guilty in terms of section 112(2) of the Criminal Procedure Act
51 of 1977 (CPA), the appellant who was legally represented , was convicted and
sentenced on 25 March 2021 , by the Regional Court sitting at Greytown, on count 1 of
murder and on count 2 of attempted murder.

[2] The murder charge was substantively framed to be read with the provisions of
section 51 (2) of the Criminal Law Amendment Act 105 of 1997 (Minimum Sentence
Legislation), wh ich provides for a minimum sentence of 15 years' imprisonment for a first
offender, with an upper limit of not more than five years in excess of minimum sentence,
in the case of a regional court which imposes such sentence, upon conviction. 1

[3] The imposition of minimum sentences in terms of the Minimum Sentence

Legislation is of course subject to the proviso in section 51 (3)(a) that the court may deviate
from the prescribed sentence if it is satisfied that substantial and compelling
circumstances exist, which justify the imposition of a lesser sentence. If a court is satisfied
that such circumstances exist, it is obliged to enter those circumstances on record and it
must thereafter impose such lesser sentence it considers appropriate.2

[4] Having heard oral submissions on sentencing from both the defence and the State,
some of which appear to have contradicted the facts contained in the written plea
explanation that was accepted by the State, the learned magistrate found no substantial
and compelling circumstances justifying the imposition of a lesser sentence on count 1

1
Section 51(2) of Criminal Law Amendment Act 105 of 1997.
2 Director of Public Prosecutions, Free State v Mokati [2022] ZASCA 31 .
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and proceeded to impose the prescribed minimum sentence of 15 years', and 5 years'
imprisonment on count 2. It was ordered that the sentence imposed in count 2 would run
concurrently with the sentence in count 1, thus resulting in an effective term of 15 years'
imprisonment. 3

[5] Immediately following the imposition of sentence, the appellant applied for leave
to appeal as envisaged in section 309B of the CPA against the sentence alone. In a terse
ruling, the learned magistrate refused such leave, necessitating a petition contemplated
in section 309C of the CPA to the high court for leave to appeal against the sentence
imposed. This was granted on 15 October 2021. By this date, the appellant had served
almost 7 months of the sentence imposed, and by the date of the hearing of the appeal
on 22 April 2022, a further 6 months, resulting in a total of 13 months.

[6] The appellant's main contention is that the learned magistrate, at sentence, failed
to have proper and due regard to the various disparate factors placed before him, both
mitigating and aggravating, the appellant's personal circumstances, the nature of the
offences convicted of, as well as the interests of society. The appellant further contends
that these factors, when viewed in the light of the facts admitted in his plea explanation,
and accepted by the State, cumulatively considered are such that the findings of the court
a quo ought to have been that substantial and compelling circumstances were indeed
established justifying the imposition of a lesser sentence. It is accordingly contended that
the learned magistrate misdirected himself.

[7] The appellant, in his written plea statement in terms of section 112(2) of the CPA
(Exhibit "A"), set out in detail the facts which he admitted and upon which he pleaded
guilty. The public prosecutor not only made no objection to the plea, but positively
asserted acceptance of the facts so pleaded. The prosecutor accordingly made a choice
that binds the court to adjudicate the case on the basis of the facts alluded to in that
statement. The prosecutor, we must accept, would have been in the best position to know
the evidence at the State's disposal and whether or not the facts pleaded by the appellant

3 Section 280(2) of Criminal Procedure Act 51 of 1977, see the record at page 34, lines 1-13.
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accorded with such evidence. 4 The court, in turn, having been satisfied of the guilt of the
appellant on the strength of such statement, returned a verdict of guilty on both counts. 5

[8] In such circumstances, the facts contained in the plea and accepted by the State
must constitute the essential factual matrix, on the basis of which a sentence must be
imposed. To hold otherwise, would taint the proceedings as unfair and could lead to
disastrous consequences in the proper administration of justice. This was conceded by
Mr Ngubane who argued the appeal on behalf of the State. 6

[9] This by no means amounts to the shutting of the door on the State in presenting
evidence on any aspect of the charge not set-out in the plea. Moreover, given the
inquisitorial nature of the sentencing process, the court may also, in its discretion,
consider evidence or a statement from the accused or question an accused on any aspect
of the case for the purposes of determining an appropriate sentence. In fact,
section 112(3) of the CPA sanctions this. This should also be viewed in the light of
section 274(1) of the CPA which provides that:
'a court may, before passing sentence, receive such evidence as it thinks fit in order to inform
itself as to the proper sentence to be passed'.
This is however not an unfettered discretion and the process invoked must meet the
constitutional standard of fairness to both the State and accused.

[1 O] The fundamental constitutional requirement of fairness contained in section 35(3)

of the Constitution of the Republic of South Africa, 1996, which must permeate all facets
of a criminal trial (including the sentencing and appeal processes), militates against the
reception of evidence or for that matter submissions on sentencing which contradicts the
factual matrix set out in the plea explanation and accepted by the State. This is what the
prosecutor purported to do, it seems largely successfully so, in placing adverse untested
contentious facts from the bar on sentencing and which were clearly relied upon by the
court in sentencing the appellant. The constitutional dictates of substantive fairness

4 Khathide v S [2022] ZASCA 17, see the record at page 6, lines 5 - 6.

5 See record at page 6, lines 9 - 11 .
6 Khathide v S [2022] ZASCA 17; S v Jansen 1999 (2) SACR 368 (C).
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cannot be glossed over and this was strongly affirmed by the Constitutional Court. 7 This
first case decided by the Constitutional Court after it was established heralded a radical
departure from the pre-constitutional era regarding notions of fairness and how it should
manifest itself in matters of adjudication that serve before the courts.

[11] It is necessary to have regard to the facts of the matter. The appellant, in his
section 112(2) statement stated that on 27 December 2018 at about 21 h00, whilst on his
way to visit his girlfriend his motor vehicle became stuck in a drain . He then walked to a
certain homestead to seek assistance and found people enjoying a party. They agreed to
assist and many people accompanied him back to his motor vehicle. A person by the
name of Mzwakhe Ndwonde, who was present and intoxicated , volunteered to drive the
appellant's motor vehicle out of the drain. When a certain lady, Sitabhele Mchunu, who
was also present, intervened and objected to Mr Ndwonde driving the vehicle as he was
intoxicated, an argument ensued which led to her being assaulted by Mr Ndwonde. The
appellant, in an attempt to stop the assault, intervened and a fight then ensued between
the appellant and Mr Ndwonde. The appellant then produced his licenced firearm and
fired shots into the ground in the general direction of Mr Ndwonde who then fled the
scene.

[12] One of the shots fired into the ground ricocheted and unfortunately struck the
deceased, Thembalethu Ximba, in the region of his abdomen. Another shot ricocheted
and struck the complainant in count 2, Mr Sphatimandla Mchunu, grazing his chest area
and injuring him in his left upper arm. Both the deceased and complainant in count 2 were
innocent bystanders at the scene and had no quarrel with the appellant.

[13] On noticing that the deceased and complainant were shot, the appellant
immediately rushed to their assistance and transported the deceased in his motor vehicle
to the nearest hospital. Mr Ximba, sadly passed on the following day as a result of the
gunshot injury.

7 S v Zuma and others 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC).
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[14] The appellant, it is common cause, had no direct intention to kill the deceased in
count 1 and the complainant in count 2. He however admitted that he foresaw the
possibility of death ensuing but notwithstanding, proceeded to fire the shots, regardless
of whether death ensued or not. It was accordingly pleaded and accepted that the
appellant had the requisite intent in the form of do/us eventua/is in respect of both counts. 8

[15] The appellant also expressed remorse for his actions, apologised to the family of
the deceased and covered the funeral costs. These facts, contained in the plea
explanation, were all admitted by the State.9

[16] The State, in addressing on sentence, agreed that the appellant was indeed helpful
immediately after the shooting by ensuring that the deceased was taken to a hospital but,
for unknown reasons, appeared to have had a change of heart regarding the sincerity of
the remorse expressed by the appellant, a fact it clearly earlier admitted. 10

[17] The prosecutor, thereafter and notwithstanding repeated objections by the

defence, purported to place from the bar, facts, impermissibly so in my view, relating to
the appellant's alleged conduct in telephoning the police and falsely reporting the incident
as a drive-by shooting and walking to his motor vehicle to fetch his firearm before the
shots could be fired. Such conduct, if true, detracts from the appellant accepting
responsibility for his actions and raises doubts about the sincerity of the resultant remorse
expressed . The learned magistrate relied on these allegations in concluding that the
appellant was not remorseful and that he did not take the court fully into his confidence.11

[18] Whilst it is acceptable, and the practice in our courts to adopt an informal approach
in the placement of non-contentious facts (by both the State and defence) in the form of
statements from the bar in the sentencing process, where such facts are however
contentious or appear to change or contradict the factual matrix upon which the plea of

6 see paras 4.6 to 4.8 of Exhibit "A" .

9 See para 4.10 of Exhibit "A "and the record at page 6, lines 5 to 6.
10 See the record at page 21 , lines 11-17.
11 See the record at pages 21 , 22 and 23.
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guilty was accepted by the State, then at the very least, it should have been properly
placed before the court as evidence, thereby allowing the appellant a fair opportunity to
challenge such evidence as is his constitutional right. Such an approach would also allow
the court to be in a position to properly evaluate the probative value of such evidence in
the totality of factors it must consider in the imposition of a just and fair sentence. 12

[19] Although there is authority for the proposition that the essential factual matrix set
out in the plea and accepted by the State, cannot be altered even in the case of evidence
subsequently adduced, this does not prevent the leading of evidence which does not
contradict the plea, but which may be relevant to the question of sentence.13

[20] In casu, the learned magistrate not only allowed , but also relied upon contentious
statements by the prosecutor from the bar notwithstanding protestations by the defence,
in concluding that the appellant 'tried to cover up his actions by reporting that it was a
drive-by shooting' and further that the appellant 'did not take the court into his confidence'
in not disclosing that he fetched his firearm from his motor vehicle before the shooting.
What is clear from the reasoning of the magistrate is that the acceptance of this
information had a significant impact in sentencing the appellant. 14

[21] I am mindful that the Supreme Court of Appeal has cautioned that minimum
sentences are not to 'be departed from lightly or for flimsy reasons', and are the starting
point when imposing sentence. Should substantial and compelling circumstances be
absent, then a sentencing court is still entitled to depart from imposing the prescribed
minimum sentence, if it is of the view that it would be disproportionate and unjust not to
do so, the so-called proportionality test. 15

12 Khathide v S [2022] ZASCA 17.

13
Section 112(3) of the Criminal Procedure Act 51 of 1977; .S v Jansen 1999 (2) SACR 365 (C); and .S v
Khumalo 2013 (1) SACR 96 (KZP).
14 See the record at page 31 , lines 24-25; at page 32, lines 1-7 and lines 19-25; at page 33, lines 1 - 23.
15 S v Ma/gas 2001 (1) SACR 469 (SCA).
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[22] Regarding his personal circumstances, the appellant was a 36 year-old first
offender, who was gainfully employed and the father of two minor children, who were
financially dependent on him. The circumstances surrounding the incident was most
peculiar and the deceased and complainant in court 2 had no quarrel or disagreement
with the appellant. T hey were innocent bystanders. Clearly there was no direct Intention
to kill the deceased or injure the complainant in count 2.

[23] In assessing remorse , it is largely to the surrounding actions of the appellant rather
than what is only said in court that one should look at. His conduct in coming to the aid of
the deceased , rushing the deceased to hospital from the scene in his motor vehicle,
apologising to the family of the deceased and paying for the funeral costs, coupled with
his plea of guilty, are strongly indicative of not only regret, but of genuine remorse on the
part of the appellant. 16 There was no other credible evidence to indicate otherwise.

[24] The fact that the appellant fired several shots, as opposed to a single shot, albeit
into the ground, must be regarded as an aggravating factor. He knew that there were
onlookers at the scene. He should have regulated his behaviour knowing that the person
he got into a fight with was youthful and under the influence of alcohol at the time.

[25] The loss of a life is always tragic and has profound consequences for family and
loved ones left behind by the deceased. The irresponsible use of licenced firearms cannot
be tolerated. The appellant must be suitably punished and society demands this of the
courts. At the same time, the imposition of a sentence should not be likened to taking
revenge but should be the culmination of a process having proper regard to the personal
circumstances of the appellant, the nature of the offences convicted of, the surrounding
circumstances relating to the shooting, the actions of the appellant as well as the interests
of society. I am of the view that the learned magistrate misdirected himself when
considering the cumulative effect of these circumstances, in not finding the existence of
substantial and compelling circumstances justifying the imposition of a lesser sentence.17

16 S v Matyityi 201 1 (1) SACR 40 (SCA).

17
S v Kruger[2011] ZASCA 219, 2012 (1) SACR 369 (SCA) para 11.
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[26] It was also an irregularity by the learned magistrate in allowing the prosecutor to
place contentious facts before the court from the bar and which tended to contradict the
factual matrix pleaded by the appellant and earlier accepted by the State. The fact that
the learned magistrate placed much reliance on such information in sentencing the
appellant, also constituted a material misdirection justifying interference by this court. Mr
Ngubane, for the State, conceded this point and given the peculiar circumstances of the
case, readily conceded that the sentence imposed by the learned magistrate was unduly
harsh.

[27] What this case highlights is the need for prosecutors to carefully consider any plea
tendered by an accused and to make an informed choice at an early stage whether the
facts pleaded accord with the evidence at the disposal of the State. This choice not only
binds the State but also the court. If it does not, this should be placed on record and
preferably evidence led regarding disputed or contentious circumstances relating to the
commission of the offence. The acceptance of facts contained in the plea, without careful
consideration by the prosecution , could have unintended consequences in sentencing
and could bring the administration of justice into disrepute. The choice made by the State
binds the court to adjudicate the case on the basis of the facts alluded to in the plea
statement. 18

[28] Both counts of murder and attempted murder, it is common cause, were closely
related in time, place and circumstances.

[29] In the light of the aforegoing, the following orders are made:
(a) The appeal against the sentence in count 1 of murder succeeds.
(b) The sentence imposed by the regional court in count 1 is set aside and substituted
with a sentence of 10 years' imprisonment.
(c) The substituted sentence is antedated to 25 March 2021 in terms of section 282 of
the Criminal Procedure Act 51 of 1977.

18 Khathide v S (2022] ZASCA 17.

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(d) The sentence imposed in count 2 of attempted murder remains unaltered , including
the order that it is to run concurrently with the sentence in count 1.

KHALLIL AJ

Appearances:
For Appellant: Ms L Barnard
Instructed by: Nel and Stevens Attorneys
Greytown

For Respondent: Mr C N Ngubane

Instructed by: Director of Public Prosecutions
PIETERMARITZBURG

Date of Appeal: 22 April 2022

Date of Judgment: 29 April 2022