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[2016] ZAWCHC 89
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S v Nteta and Others (CC66/15) [2016] ZAWCHC 89; 2016 (2) SACR 641 (WCC) (22 July 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
[NORTHERN CIRCUIT
LOCAL DIVISION, CERES]
[
REPORTABLE
]
CASE NO: CC66/15
In the matter between:
THE STATE
vs
MKHULULI
NTETA
Accused 1
MONDE
TANANI
Accused 2
PATRICK
NDZONGANA
Accused 3
APIWE
DILIZA
Accused 4
JUDGMENT ON SENTENCE:
22 JULY 2016
Judgment
by
: HENNEY,
J
For the
State :
Adv Kriban Pillay
Instructed
by
: Office
of the Director of Public Prosecutions
CAPE TOWN
For accused
1
: Adv G J Badenhorst
For accused
2
: Adv J
du Preez
For accused
3
: Adv B
Maditzeli
For accused
4
: Adv T
Dodgen
Instructed
by
: Cape
Town Justice Centre
Legal Aid Board
CAPE TOWN
Date(s) of
Hearing
:
30 MAY
2016
Judgment delivered
on :
22 JULY 2016
HENNEY, J
Introduction
[1] The Court in
considering an appropriate sentence must have regard, and take into
consideration the aims of punishment, which
are deterrence,
retribution, rehabilitation and prevention. During the sentencing
process the Court should never lose sight of
the element of mercy. In
S v Rabie
1975 (4) SA 855
(A)
Holmes JA
said
the following in this regard at 862 D-F:
“…
[
W
]
ith
particular reference to the concept of mercy-
(i)
it
is a balanced and humane state of thought;
(ii)
it
tempers one’s approach to the factors to be considered in
arriving at an appropriate sentence;
(iii)
it
is nothing in common with maudlin sympathy for the accused;
(iv)
it
recognises that fair punishment may sometimes have to be robust;
(v)
it
eschews insensitive censoriousness in sentencing a fellow mortal, and
so avoids severity in anger;
(vi)
the
measure of the scope of mercy depends upon the circumstances of each
case.”
[2] A further important
factor that the Court has to take into account is the so-called triad
(
S v
Zinn
)
[1]
.
These are the personal circumstances of the accused, the offence, of
which had been committed (which includes the circumstances
under
which it had been committed), as well as the interest of society. In
considering the aforementioned factors, the Court should
at all times
strive to impose a proportionate sentence without over or under
emphasising any of these circumstances at the expense
of the other.
The personal
circumstances of the Accused
[3] Accused 2 is 34 years
old. Before he arrived in Prince Alfred Hamlet in September 2014, he
stayed in Strand. His highest level
of education is Grade 12. He was
born in Queenstown in the Eastern Cape and has 2 brothers and 2
sisters. He is unmarried and is
the father of two children, aged 6
years and 10 years old respectively. The children stay with his
mother in Queenstown. He has
one previous conviction of theft that
was committed in 2009 for which a fine of R150 or 30 days
imprisonment was imposed. In his
evidence in Court during the
sentencing procedure, accused 2 expressed his regret and apologised
to the family of the deceased
and to the Court that he could not do
more to protect the deceased.
[4] Accused 3 is 53 years
old and is married for 16 years. He is the father of 2 minor
children, 15 years and 11 years respectively.
Both are still at
school. His wife has 2 major children from a previous relationship.
He as well as his wife is unemployed. He
stayed at 2 Sol Plaaitjie
Road, Prince Alfred Hamlet since 2001. He came to know the other
accused in this matter about 7 days
before the incident occurred. All
the accused came to visit the sister of accused 1 who stayed in an
outbuilding at the back of
the yard. He also informed the Court that
he suffers from high blood pressure. His wife Nsosaka Ndzongana also
testified and said
that the arrest and involvement of the accused in
this case placed the family under a tremendous amount of strain and
they are
not coping very well. She further informed the Court that
she is a seasonal worker and have to find employment in order to
support
her and the children. She also informed the Court that
accused 3 has a sum of money in the bank which she needs to gain
access
to in order for her to support her and the children and his
incarceration will make it difficult for her to have access to the
money. The Court has already given the police instructions to assist
her and accused 3 in this regard. The children are in
grade 5
(the 11-year-old) and grade 9 (the 15-year-old) respectively.
Position of Accused 4
[5] Accused 4 was 17
years, 11 months and 2 hours old at the time of the commission of the
offence on 14 September 2014. He turned
18, hours before his arrest
on 15 September 2014. He is now 20 years of age. He has been in
custody since his arrest. Mr Dodgen
argued that given the fact that
accused 4 had committed the offences in question when he was under
the age of 18 years that the
provisions of the Child Justice Act 75
of 2008 (“CJA”) should be applicable during the
sentencing proceedings. Mr Pillay,
the prosecutor, argued that when
Accused 4 was arrested he was 18 years old and therefore the
provisions of the CJA find no application
as far as he is concerned.
The Applicable Legal
Provisions
[6] The applicability of
the CJA is regulated by section 4 which
reads as
follows:
‘
Application
of Act
(1)Subject
to
subsection
(2)
, this Act applies to any person in the Republic
who
is alleged to have committed an offence and-
(a) …
(b) was 10 years or
older
but under the age of 18 years when he or she was-
(i)
…
(ii)
…
(iii)
arrested
in terms of
section
20
,
for that offence
.’
(Emphasis
added)
[7] A “
child”
in
terms of s 1
of
the
CJA “
means
any person under the age of 18 years and, in certain circumstances,
means a person who is 18 years or older but under the
age of 21 years
whose matter is dealt with in terms of section 4 (2)
[2]
”.
Section
4(2) is not applicable in this case.
[8] Accused 4 was
arrested a mere few hours after he committed the offences and by that
time he was already 18 years old. He was
under the age of 18 at the
time of the commission of the two offences, but 18 years and a few
hours old at the time of his arrest.
He was therefore under 18 years
old at the time he was alleged to have committed the offence and NOT
also under the age of 18 years
at the time of his arrest as
contemplated by s 4(1)(b)(iii). The question that now needs to be
considered is whether the close
proximity between the commission of
the crime when he was under the age of 18 years and his subsequent
arrest a few hours thereafter,
is whether the provisions of the CJA
would be applicable. Clearly, should the Court find that the CJA is
applicable, the sentencing
of the accused must take place in terms of
the provisions of chapter 10 of the CJA. Section 68 of the CJA
states: “
A
child justice Court must, after convicting a child, impose a sentence
in accordance with this Chapter”.
See
S v
CS
2016 (1) SACR 584
and
S v RS
and Others
2012 (2) SACR 160
(WCC)
.
[9] The question now to
consider is what meaning should be given to s 4(1)(b)(iii). The
primary rule of interpretation states that
if the meaning of the word
is clear, it should be put into effect and it must be equated with
the legislator’s intention.
[3]
The words of an enactment must be understood in their ordinary
sense.
[4]
If the plain meaning
of the word is ambiguous, vague or misleading
or
if a strict literal interpretation would result in absurd results,
then the Court may deviate from the literal meaning to avoid
such an
absurdity. This is also known as the golden rule of
interpretation.
[5]
In this case,
however, the Act is very clear and states that the provisions of the
CJA only applies to a person who is alleged
to have committed an
offence
and
was 10 years or older but under the age of 18 years when he or
she was arrested for that offence. The meaning of the word
‘and’
is therefore clear and unambiguous and should be given its literal
meaning.
[10] The CJA is therefore
clear that a person should not only be under the age of 18 years when
he/she committed the offence, but
he/she should also have been under
the age of 18 years when he/she was arrested. It may be argued that
given the close proximity
between the commission of the offence, when
the accused in this case was under the age of 18 when he committed
the offence and
that only a few hours thereafter before his arrest he
turned 18 years old, that the Court should give an expansive
interpretation
to the words:
and was 10 years or older but under
the age of 18 years when he was arrested for that offence.
[11] In my view, there is
a perfectly logical and rational reason as to why the legislature
required that the child offender should
have been under the age of 18
years when he is alleged to have committed the offence and,
similarly, also have been under the age
of 18 years when he was
arrested in order for the CJA to find application. The very purpose
of the CJA was clearly to establish
criminal justice for children and
children only who are in conflict with the law and accused of
committing offences. The CJA was
tailor-made to suit the needs of the
child offender (under 18 years) and not that of an adult offender.
Some of the important purposes
of the CJA as set out in the preamble
is for children “
to be kept separately from adults…………
while in detention.”
[12] Furthermore, the CJA
takes into consideration “
the long-term benefits of the less
rigid criminal justice process that suits the needs of children
in conflict with the law
in appropriate cases by ensuring that the
individual needs and circumstances of children in conflict with the
law are assessed;
creating an informal, inquisitorial, pre-trial
procedure, designed to facilitate the disposal of cases in the best
interests of
children by allowing for the diversion of matters
involving children away from the formal Court proceedings in
appropriate
cases; providing for the adjudication of matters
involving children which are not diverted in child justice Court; and
providing
a wide range of appropriate sentencing options specifically
suited to the needs of children.”
The very purpose of the
CJA was to give effect to the rights of children as enshrined in s 28
of the Constitution, Act 108 of 1996
which aims to serve the best
interests of the child. Sec 28(3) of the Constitution also
describes a “child” as
a person
under
the age of
18 years.
[13] Clearly it could not
have been the intention of the legislature to have a situation where
a person who has committed an offence
when he was under the age of 18
years and arrested after he became an adult or has reached the age of
18 years or older to be dealt
with in accordance with the provisions
of the CJA. It would also have as a consequence that the erstwhile
child offender who was
under the age of 18 years when he/ she
committed the offence and was not immediately arrested and
subsequently reached adulthood
at the time of his arrest to be dealt
with in accordance with the provisions of the CJA, which the Act was
not intended to protect.
[14] It could lead to a
situation where a child offender would end up being detained with an
adult offender. In some instances,
especially with regards to the
detention or placement in the compulsory residence in the child and
youth care centre, it would
be impractical for such an offender to
undergo such detention or such sentence which was specifically
tailor-made for the child
offender.
[15] At best for an
offender such as accused 4 that falls within such a category, a
sentencing Court must take into consideration
as a strong mitigating
factor the fact that when he or she committed such an offence that it
was committed when he/she was a child
at that stage.
[16] Coming back to this
particular case, and especially regarding the position of accused 4,
I am therefore not persuaded that
he should be dealt with in terms of
the provisions of the CJA during the sentencing proceedings.
[17] The Court was
presented with a Probation Officer’s Report of accused 4’s
personal circumstances as well as an investigation
into his
background and the socio economic conditions. According to the
report, the accused hails from Butterworth in the Eastern
Cape.
He is one of 6 children. One of his sisters passed away in
2008. His father passed away in a motor vehicle
accident in
2009. His parents separated in 2008. Despite this, his
father kept a close relationship with them.
The death of his
father had a negative impact on him and the rest of the family.
[18] During 2011, accused
4 moved to the Western Cape and stayed with a family friend, who he
believed would assist him with his
education, but this did not
materialize. He moved to Strand and had lost contact with his
family in 2014. He passed
Grade 7 in 2010. This may be a
reason why he became involved with the other accused, who clearly was
not good role-models
to him.
The Offence
[19] All the accused have
been convicted of two very serious offences. Both of which attracts
the prescribed sentence in terms of
the provisions of the Criminal
Law Amendment Act 105 of 1997 (“Act 105 of 1997”). The
particular circumstances of this
case need some special mention. The
deceased was brutally assaulted as is evidenced from the number of
wounds that he sustained
on his body and which has been meticulously
set out by Dr Lourens in the post mortem report. One person could not
have done this
alone because the deceased was also a big man who had
to be restrained. Clearly, when he was strangled he must have been
held back
in order for those who strangled him to do so.
[20] As I said in my main
judgement the murder as well as the sexual assault on the deceased
could not have been committed had there
not been assistance in one or
other form from among the accused conduct can be described of those
of a coward. The deceased was
trapped like a wild animal in the
vehicle with the doors closed and he was sandwiched in between the
accused and had nowhere to
run to. When he tried to escape he
was prevented from doing so. He was left to the mercy of the accused
none of whom had
the decency to assist him while he was viciously and
brutally beaten and strangled. They showed no mercy and further
showed no
respect to the deceased and further violated the dignity
and humiliated the deceased by using an object to penetrate his anus.
[21] If this was not
enough, they further went ahead and violated and disregarded the
sanctity of the deceased by throwing his body
off the side of the
bridge. And with utter disdain left his lifeless body that was
exposed in the open which must have been a further
cause of pain and
sorrow for his family when they became aware of this. The conduct of
the accused was utterly reprehensible, coward
and shocking.
Interests of Society
[22] Society demands that
wanton criminal acts as displayed by the accused should not be left
unpunished. It demands of the Courts
to send out a clear and strong
message that such acts of criminality will not be countenanced and
further demands that the strictest
and severest punishment should be
meted out to individuals such as the accused. It is also for these
reasons that the law prescribed
certain sentences that the Court
should impose in cases like these. In respect of Count 1, which is a
Rape committed in terms of
section 3 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007 (“SORMA”)
where more than
one person acted in common purpose and also where the
rape was committed involving grievous bodily harm, a sentence
of life
imprisonment is prescribed. In respect of Count 2, Murder,
where the death of the deceased was caused by more than one person in
the furtherance of a common purpose and also that the death of the
victim was caused by the accused by committing an offence of
Rape as
contemplated in section 3 of SORMA, a sentence of life imprisonment
is also prescribed in terms of Act 105 of 1997.
[23] In terms of section
51 (3) of Act 105 of 1997 the Court must impose the prescribed
sentence unless there is substantial and
compelling circumstances to
deviate from such prescribed sentence. The approach a Court should
follow in determining whether there
are substantial and compelling
circumstances present had been laid down in the oft quoted
S v
Malgas
2001 (1) SACR 469
(SCA)
at 470G – 471D:
“
B.
Courts are
required to approach the imposition of sentence conscious that the
legislature has ordained life imprisonment (or the
particular
prescribed period of imprisonment) as a sentence should ordinarily
and in the absence of weighty justification be imposed
for the listed
crimes in the specified circumstances.
C. Unless there are,
and can be seen to be, thoroughly convincing reasons for a different
response, the crimes in question are therefore
required to elicit a
severe standardised and consistent response from the Courts.
D. The specified
sentences are not to be departed from lightly and for flimsy reasons.
Speculative hypotheses favourable to the
offender, undue sympathy,
aversion to imprisoning first offenders, personal doubt as to the
efficacy of the policy underlying the
legislation, and marginal
differences in personal circumstances or degrees of participation
between co-offenders are to be excluded.
E. The Legislature has
however deliberately left it to the Courts to decide whether the
circumstances of any particular case call
for a departure from the
prescribed sentence. While the emphasis has shifted to the objective
gravity of the type of crime and
the need for effective sanctions
against it, this does not mean that all other considerations are to
be ignored.
F. All factors (other
than those set out in D above) traditionally taken into account in
sentencing (whether or not they diminish
moral guilt) thus continue
to play a role; none is excluded at the outset from consideration in
the sentencing process.
G. The ultimate impact
of all the circumstances relevant to sentencing must be measured
against a composite yardstick (“substantial
and compelling”)
and must be such as cumulatively justify a departure from the
standardised response that the legislature
has ordained.
H. In applying the
statutory provisions, it is inappropriately constricting to use the
concepts developed in dealing with appeals
against sentence as the
sole criterion.
I. If the sentencing
Court on consideration of the circumstances of the particular case is
satisfied that they render the prescribed
sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice
would be done by imposing that
sentence, it is entitled to impose a lesser sentence.
J. In so doing,
account must be taken of the fact that crime of that particular kind
has been singled out for severe punishment
and the sentence to be
imposed in lieu of the prescribed sentence should be assessed paying
due regard to the bench mark which
the legislature has provided.”
[24] Before coming to a
conclusion whether there are substantial and compelling circumstances
warranting the imposition of a lesser
sentence in respect of each of
the accused to who the prescribed sentences is applicable, the Court
will first deal with the question
whether, as professed by the
accused, they have shown remorse.
[25] As referred to in my
Judgment none of the accused had taken the Court into their
confidence. All of them tried to mislead the
Court and the Court had
difficulty in accepting what the true circumstances and facts of this
case were which led to the rape and
murder the deceased. The accused,
either individually or collectively, could have assisted the Court in
trying to find out what
really happened. All of them expressed their
regret and also apologised to the family of the deceased. Given the
circumstances
I am not convinced that they have shown genuine remorse
for their actions. In
S v MATYITYI
2011 (1) SACR 40
(SCA)
Ponnan JA
had the following to say about this aspect
at para 13:
“
There is,
moreover, a chasm between regret and remorse. Many accused
persons might well regret their conduct, but that
does not without
more translate to genuine remorse. Remorse is a gnawing pain of
conscience for the plight of another. Thus genuine
contrition can
only come from an appreciation and acknowledgement of the extent of
one's error. Whether the offender is sincerely
remorseful, and
not simply feeling sorry for himself or herself at having been
caught, is a factual question. It is to the
surrounding actions of
the accused, rather than what he says in Court, that one should
rather look. In order for the remorse to
be a valid consideration,
the penitence must be sincere and the accused must take the Court
fully into his or her confidence. Until
and unless that happens,
the genuineness of the contrition alleged to exist cannot be
determined. After all, before a Court can
find that an accused person
is genuinely remorseful, it needs to have a proper appreciation of,
inter alia: what motivated the
accused to commit the deed; what has
since provoked his or her change of heart; and whether he or she
does indeed have a true
appreciation of the consequences of those
actions.”
None of these attributes
referred to by
Ponnan JA
as to what genuine remorse is, was
displayed by the accused in this case. In fact, some of them,
especially accused 3 persisted
with his dishonesty and lack of
remorse.
[26] In respect of
accused 2, this Court is not convinced that there are substantial and
compelling circumstances to deviate from
the prescribed sentence of
life imprisonment in respect of both these offences. Similarly, in
respect of accused 3, the Court is
also not convinced given the
totality of the circumstances of this case which includes his
personal circumstances as well as the
circumstances relating to the
offence and the interests of society, that there are substantial and
compelling circumstances to
deviate from the prescribed sentence of
life imprisonment. In respect of accused 4, the provisions of Act 105
of 1997 in respect
of the two offences committed are not applicable
to him. He was under the age of 18 years when he committed this
offence. In terms
of section 51 (6) of Act 105 of 1997, the section
dealing with the prescribed sentence, does not apply in respect of an
accused
person that was under the age of 18 years at the time of the
commission of the offence. The Court therefore has to exercise its
ordinary jurisdiction in respect of sentence as far as accused 4 is
concerned.
[27] It does not,
however, mean that the Court cannot impose a sentence of direct
imprisonment as far as accused 4 is concerned.
He himself formed a
common purpose with the other accused in committing these gruesome
and heinous crimes. In this particular case,
in my view, the
seriousness of the offence requires that retribution and deterrence
should come to the fore and that the rehabilitation
of the offender
will consequently play a relatively smaller role. In
S v
Senatsi and Another
2006 (2) SACR 291
(SCA)
Mthiyane
JA
held at para 7: “
In the present matter the relative
youth of the appellants must give away to the deterrent and
retributive effects of punishment.
The aggravating features of the
case justify such an approach. This is one of those cases where any
law-abiding and self-respecting
citizen would be repelled by the
conduct of the appellants.”
Although he was 17 years 11
months and 2 hours old in my view he played an active part in the
commission of the offence. Given the
accused’s personal
circumstances, it seems he was abandoned by his family at a very
young age. In my view, as held in the
matter of
S v Jackson &
Others
2008 (2) SACR 274
(C),
there is a real
possibility that he could have been influenced by the other accused
in this matter. He was clearly by far the youngest
of all the accused
in this matter. The sentence of accused 4 therefore has to be
tempered to take into consideration his youthfulness.
A further very important
factor which the Court has to consider is that Accused 4 was the only
accused who was in custody awaiting
trial since his arrest on 15
September 2014.
[28] I will now impose
sentence on each of the accused.
ACCUSED 2
Count 1: LIFE
IMPRISONMENT;
Count 2: LIFE
IMPRISONMENT, to be served concurrently.
ACCUSED 3
Count 1: LIFE
IMPRISONMENT;
Count 2 : LIFE
IMPRISONMENT, to be served concurrently.
ACCUSED 4
Count 1: 10 years
imprisonment.
Count 2: 12 years
imprisonment. It is further ordered that 7 years of the sentence
imposed in respect of count one be served concurrently
with the
sentence imposed on count two. Accused 4 is therefore sentenced to an
effective 15 years imprisonment.
In terms of
section 103
of the
Firearms Control Act 60 of 2000
all the accused are declared
unfit to possess a firearm.
____________________
R.C.A. HENNEY
Judge of the High Court
[1]
S v Zinn
1969 (2) SA 537
(A) at 540G
[2]
(2) The
Director of Public Prosecutions having jurisdiction may, in
accordance with directives issued by the National
Director of Public
Prosecutions in terms of
section 97
(4) (
a
) (i) (
aa
),
in the case of a person who—
(
a
) is
alleged to have committed an offence when he or she was under the
age of 18 years; and
(
b
)
is 18 years or older but under the age of 21 years, at the time
referred to in
subsection
(1) (
b
)
,
direct that the matter be dealt with in terms of
section
5 (2)
to
(4)
.
In terms of
S5
– a
preliminary enquiry should be held.
[3]
Du Plessis LM in
Re-interpretation
of Statutes
(2002) chapter 5 (Butterworths, Durban)
[4]
See
Union
Government v Mack
1917
AD 731
at 739: “
the
language of the legislature should be read in its ordinary sense”
[5]
In
Venter
v R
1907 TS 910
at 914, INNES, CJ says, after referring to the golden
rule, “
that
when to give the plain words of the statute their ordinary meaning
would lead to absurdity so glaring that it could never
have been
contemplated by the legislature, or where it would lead to a result
contrary to the intention of the legislature, as
shown by the
context or by such other considerations as the court is justified in
taking into account, the court may depart from
the ordinary effect
of the words to the extent necessary to remove the absurdity and to
give effect to the true intention of
the legislature
”.