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[2016] ZAWCHC 138
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S v Dlamini (CC64/2015) [2016] ZAWCHC 138 (17 October 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No. CC64/2015
Before: The Hon. Mr Justice Binns-Ward
In
the matter between:
THE
STATE
and
BONGANI GOODMAN
DLAMINI
Accused
SENTENCE JUDGMENT DELIVERED: 17 OCTOBER 2016
BINNS-WARD J:
[1]
The accused was convicted on 5 September
2016 of having committed the murder of A. N. on 1 March 2016.
This judgment is concerned
with the imposition of sentence.
[2]
A., who was the daughter of Ms K. N. and Mr
P. M., was only five years of age when she was murdered. By all
accounts she had
a delightful nature and brought much joy into the
lives of her parents. The photographs of her that her mother
tendered in
evidence show a pretty and happy looking child. It
was clear from her mother’s evidence in the trial and the
content
of the victim impact reports put in by the prosecutor as
evidence in aggravation of sentence that A.’s murder has
resulted,
not only in the tragic loss of a promising young life, but
also in the devastation of the lives of her parents. It is
evident
that in the aftermath of the horrific killing of their
daughter and the ghastly circumstances in which her decomposing
remains
were discovered bundled up in a set of plastic bags put out
to be taken away in the weekly garbage collection after they had been
searching for her over three days and four nights, the parents have
been unable to come to terms with their loss. In a very
real
sense they are experiencing a living death, and are just as much
victims of his crime as was A..
[3]
The circumstances in which the offence was
committed - to the extent that they could be established - were
recounted in the judgment
delivered by the court on 5 September.
I find it unnecessary to revisit them in any detail. Suffice it
for present
purposes to state that it was found that the accused
fatally assaulted the deceased in his house by delivering a blow to
her head
with a large and heavy hammer. The evidence indicated
that the child’s head must have been against the floor when the
blow was delivered. He shattered her skull. There is no
doubt that by striking her on the head with such a weapon the
accused
actually intended to kill her. It is apparent that the child
must have been undressed at the time because, despite
the evidence of
copious bleeding having occurred, no blood was found on her clothing
and the corpse was in an unclothed state when
it was recovered from
the plastic bags into which the accused had placed it.
[4]
Only the accused knows how A. came to be in
his house at the time, how she came to be in an undressed state, what
happened in the
lead-up to her killing and why he committed the
murder. He has chosen not to disclose those facts and has
instead consistently
professed his innocence in the face of the
overwhelming circumstantial evidence that established his guilt
beyond any shadow of
doubt. In consequence, the child’s
parents have been left to speculate; and denied the closure, which
painful though
it would have been, might have assisted them to heal.
[5]
The accused’s denialism cannot hide
the fact that A.’s last minutes must have been extremely
traumatic. The objective
evidence proves that she was brutally
treated. And after she had been killed, the accused dealt with
her body cold-bloodedly
and contemptuously. His behaviour after
the commission of the offence was calculated and cynical. He
even participated
in a search for her after her mother had raised the
alarm about the young girl’s disappearance. The manner in
which
the body was elaborately concealed within a series of
interleaved plastic and canvas bags and stored for days before being
put
out on the day that the local authority collected domestic refuse
from the area afforded further indication of the accused’s
callousness about what he had done and of his utter disrespect for
his victim’s humanity. All the while he went on
with his
life - going to work as usual, and visiting his girlfriend as if
nothing had happened.
[6]
One can accept the accused’s evidence
that he experienced some anxiety in the days before his arrest, but
it is clear that
his concern was only about himself and the danger of
his crime being discovered. That attitude continued to
characterise
his behaviour after his arrest and, indeed, right
through the trial. The only chink in his emotional coldness
about what
he had done was when, very shortly after his arrest, he
gave an indication of wishing to make a clean breast of things by
making
a statement. He, however, quickly reconsidered that
position. If he has any remorse, he has chosen not show it,
either
in word or deed. His lack of remorse has added to the
parents’ torture.
[7]
When a court imposes sentence, it takes
into account the facts and considerations that are peculiar to the
case. It weighs
these in the context of three broad
considerations: the nature of the offence, the personal circumstances
of the offender and the
interests of the community.
[8]
The crime of murder is of the most serious
kind of offence that the law knows. This is exemplified by the
legislature’s
determination that it should ordinarily be
punished by imprisonment for not less than 15 years, unless there are
substantial and
compelling circumstances justifying a lesser
sentence. The special heinousness with which society regards
the crime when
a child is the victim is reflected in the severity of
the sentences imposed by the courts in such cases. The special
position
of children in society is acknowledged in the Bill of
Rights. In terms of s 28(1) of the Constitution every
child has
the right, amongst other matters, to be protected from
maltreatment, neglect, abuse or degradation. The accused’s
conduct
entailed not only a fundamental breach of A.’s rights
to dignity and life, but also the most extreme infringement of her
basic rights as a child.
[9]
The state referred in argument to the
example of the life sentence imposed in
S v
Isaacs
[2010] 4 All SA 481
(SCA).
The factual circumstances bore a striking resemblance to those in the
current case in a number of respects.
The conviction in that
case was also based on circumstantial evidence. The child
victim was also murdered in the offender’s
house and her body
subsequently discarded on a refuse dump. Unfortunately,
however, it is not apparent in any detail from
the reported judgment
what the accused’s personal circumstances were. I was
informed that the judgment of the trial
court has gone missing from
the court file.
[10]
I have found a number of other judgments,
however, which show that even where the offender’s personal
circumstances are unremarkable,
like those of the accused in the
current case, a sentence of life imprisonment has been found to be
the appropriate punishment.
[11]
In
S v Tata
2015 JDR 2577 (ECG), the accused was a first offender who when aged
only 17 raped a 10 year old girl vaginally and anally before
killing
her by cutting her throat. He was sentenced to 19 years’
imprisonment in respect of each of the counts of rape
and to life
imprisonment for the murder. On appeal, the life sentence was
set aside because its imposition had been unconstitutional
on account
of the accused’s age at the time he committed the offences.
The maximum sentence to which he could have
been sentenced in terms
of the
Child Justice Act 75 of 2008
was 25 years’
imprisonment. The Full Court of the Eastern Cape Division
considered that the imposition of the maximum
sentence was
appropriate. It substituted the life sentence with one of 24
years’ imprisonment, allowing a discount
of one year on account
of time served awaiting trial, and directed that it be served
concurrently with the sentences imposed for
the rapes.
[12]
In
S v Madiba
2014 JDR 0556 (SCA), the accused, who also appears to have been a
first offender, was convicted of the rape and murder of a three-year
old child. The trial court imposed a sentence of life
imprisonment in respect of the rape conviction and one of 35 years’
imprisonment for the murder. The Supreme Court of Appeal
confirmed the sentences on appeal, but remarked (at para 14),
‘
I
turn to the sentence of 35 years imprisonment imposed by Hetisani J
for the murder of the three year old girl, Ratani. Hetisani
J
furnished no reasons for imposing a lesser sentence for the murder of
Ratani than he imposed for her rape. Her murder was undoubtedly
deserving of a sentence of life imprisonment. The State, however, did
not seek leave to appeal against this sentence and in fact
asked for
the sentence to be confirmed. This court is accordingly not entitled
to increase the sentence (see
Frank
Nabolisa v The State
2013 (2)
SACR 221
(CC))
’. It seems
clear that had the state appealed against the 35 year sentence on the
murder conviction, sympathetic consideration
would have been given by
the appeal court to increasing the sentence to one of life
imprisonment.
[13]
Life sentences were also imposed for the
murder of a child in
S v Mukona
2015 JDR 2057 (SCA). In that matter, the accused, who had a
previous conviction for murder, had assaulted his two children
with
an axe, as a result of which one of them died and the other was
grievously injured. At para 18 of the judgment,
Mathopo JA
made the following observations which, allowing for the factual
differences in the matters, have loud resonance
in the context of the
offence in issue in this case, ‘
There
is no doubt that the offences were serious to the extreme. What is
aggravating is the fact that the arson, murder and attempted
murders
were committed in the sanctity of the complainants’ homes. The
children had looked to the appellant for protection
and guidance.
Instead he abused his position of trust, and killed and injured them.
This must have been emotional, traumatic and
devastating for the
young defenceless children to have had to suffer at the hands of
their father. As a result of the assault,
Mulanda has been
semi-paralysed and been left mentally impaired. She is probably
fortunate to have survived but will forever live
with the fact that
her condition was caused by her father. The appellant showed no
remorse for his actions and persisted on his
innocence and did not
testify or adduce evidence aimed at demonstrating his remorse or
contrition
’.
[14]
S v Montsho
2014
JDR 0743 (GNP) is another case in which a sentence of life
imprisonment was imposed for the murder by a 27 year old man of
a
young boy aged three years who had been playing outside his house
when the accused enticed him to accompany him. Thulane
AJ
describing the special seriousness of the offence remarked (at para
56) ‘
The right to life is sacred,
basic to humanity itself and enjoying Constitutional protection.
Children in this country are entitled
to play in the streets,
especially just in front of their parental home. They have a
legitimate claim to play peacefully on the
streets, to enjoy their
youth, to run around and enjoy the peace and tranquillity of their
homes and neighbourhoods without the
fear, the apprehension and the
insecurity which constantly diminishes the quality of their lives
’.
[15]
I am astute to the fact that in some of the
matters I have cited the accused had been convicted of the rape and
murder of the victim,
whereas in the current case, the accused was
acquitted on the charge of rape. It is however clear that the
courts in the
matters to which I have referred treated the counts of
murder separately for sentence purposes from the convictions in
respect
of the sexual offences. These judgments have not been
cited in order to suggest that a life sentence is invariably
appropriate
in child murder cases. That is not so. Every
case must be treated on its merits. The examples that I have
cited
do serve, however, to confirm - if confirmation were needed -
the grievous character of the offence and the weight that the courts
do attach in the interests of the community to its sanction by severe
punishment.
[16]
The accused’s counsel argued that the
fact that the accused had been drinking on the day the offence was
committed diminished
his moral blameworthiness. He also pointed
to the fact that the accused was a first offender and that he had
been contributing
towards the maintenance of his disabled younger
sister who lives at the family home in KwaZulu-Natal. There is
also the issue
of the accused’s health, which requires him to
be on medication. Counsel argued that these factors, and the
period
of almost 18 months that the accused spent in custody awaiting
trial, constituted sufficient reason to impose a sentence less than
the prescribed minimum 15 years’ imprisonment. I
disagree. The seriousness of the offence and the interest of
the community in the imposition of suitably severe sentences for
offences of this nature mean that the accused’s personal
circumstances are a relatively subsidiary consideration when there is
nothing about them that is particularly compelling.
[17]
As mentioned, the accused has not shown a
shred of remorse. I can find nothing in the evidence to
mitigate his moral blameworthiness.
He might have had a few
drinks on the day of the murder, but there is nothing to suggest that
he was affected to any degree that
would have diminished his ability
to distinguish right from wrong. He certainly has not claimed
that his consumption of a
few beers during the course of the day was
in any manner relevant to his commission of the offence.
Indeed, despite anxious
search, I have been unable to find any
mitigating feature in favour of leniency whatsoever. By
contrast, the aggravating
factors are stark. In the
circumstances I have concluded that the appropriate sentence is one
of life imprisonment.
[18]
The accused is sentenced to life
imprisonment.
A.G. BINNS-WARD
Judge of the High Court