Ntuthuko’s sentence
to five years and afforded a fine of E5 000. The '33 contended that Ntuthuko should have been found guilty of murder in the form of dolus eventualis.
“On page 5 paragraph of its judgment the court held that, prior to the commence ment of the commotion the respondent Ntuthuko was heard telling the station com mander that he was going to kill the people if the police did not get quickly,” submitted the acting '33. 6he went on to highlight that on page 5 paragraph the court further found that Ntuthuko provoked the deceased and company. 6he said it was further the court’s finding that the respondent, being impatient with the police, made a second call to the station commander telling him to hurry up or chaos and bloodshed would ensue.
Submission
+lophe mentioned that the former legisla tor shot 6ipho 'lamini at close range three times once in the arm and two times in the abdomen . It was further her submission that the respondent shot 6ikhulu 6hongwe three times in the neck and Themba Tsabedze once in the chest. The acting '33 argued that the court rejected that the respondent shot at the deceased persons in self defence.
It was further her averment that, the re spondent did not plead provocation as a self defence during his trial.
“It is, therefore, stated that a different court might find the aforesaid to establish intention in the form of dolus directus as opposed to dolus eventualis. The +igh &ourt erred in law by not finding that the circumstances of the case justify a departure from the general principle or rule regarding the passing of concurrent or consecutive sentences,” sub mitted +lophe.
of the video footage prior to the disciplinary hearing, made her a witness to the employer’s evidence.
Mahlalela’s impartiality was compromised and that fact disqualified her from serving as chairperson in that disciplinary hearing, said the judge.
“Mahlalela was both chairperson and potential witness in the same disciplinary hearing. It amounts to procedural unfairness when a chairperson, in a disciplinary hearing, whose impartiality is compromised, proceeds to preside over that hearing,” Judge Mazi buko said.
In her amended particulars of claim, Masango accused the chairperson of bias in the manner she handled the disciplinary hearing.
The Industrial &ourt made a finding regarding procedural fairness at the disci plinary hearing and stated that it came to the conclusion and finding that Masango’s dismissal was procedurally fair.
Determination
$ccording to the court of appeal, the Industrial &ourt had a legal obligation to make a determination regarding the legality or propriety of the conduct of the chairperson prior to and during, the disci plinary hearing.
In particular, said Judge Mazibuko, the Industrial &ourt was legally obligated to make a determination regarding the manner in which the chairperson subsequently used that evidence as a basis for the verdict and the dismissal of the employee from work.
+e said the Industrial &ourt failed to make the requisite determination, yet it had a legal obligation to do so.
6hoprite was also found to have failed to prove that Masango was given a hearing on appeal of the decision of the disciplinary hearing.
Judge Mazibuko heard the matter with Judge Nkosinathi Nkonyane and Judge Margriet 9an 'er :alt.
Masango was represented by %hembe and Nyoni $ttorneys and Magagula and +lophe $ttorneys appeared for 6hoprite.
$ccording to the acting '33, the said general rule was that, where the offences convicted of were committed in the same transaction, it was unjust and wrong in law to order the sentences of the accused to run consecutively.
6he told the court that the law permitted a departure from the above mentioned general rule, where circumstances of a case permit. The acting '33 in her application was adamant that, the aggregate term of the sentence of 0 years was disproportionate to the seriousness of the offences when consid ered as whole.
“Therefore, a different court might find that the above is an e[ception warranting the departure from the general rule and order sentences of the respondent to run consec utively instead of concurrently,” submitted +lophe. 6he told the court that there were prospects of success of the appeal by the applicant &rown . 6he concluded her application by pleading with the court to grant the application in terms of the notice of motion.
Meanwhile, through his attorney Noncedo Ndlangamandla, the respondent is opposing the application and is yet to file his papers. Notably, when he was sentenced, Ntuthuko shared his desire to also appeal the sentence as he felt that it was harsh.
+e was quoted by the publication having said, his sentence would be even harsher if the judge had ordered that it should run consecutively.
$fter the sentencing, residents from either of the two areas reacted differently.
6ome residents of /aMgabhi felt that the sentence was harsh while some of those who came from /uyengweni viewed the sentence as lenient.