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S v Dlamini (CC64/2015) [2016] ZAWCHC 156 (17 October 2016)

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Criminal Law
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Brief Summary

Criminal Law — Murder — Sentencing — Accused convicted of murdering five-year-old Anivuyo Ndamase — Brutal nature of the crime and its devastating impact on the victim's parents considered in sentencing — Accused's lack of remorse and cold-blooded handling of the victim's body aggravating factors — Life imprisonment imposed as appropriate sentence due to the heinousness of the crime and the victim's status as a child.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was a sentencing judgment in criminal proceedings in the High Court of South Africa (Western Cape Division, Cape Town) following the conviction of the accused for murder.


The parties were the State as prosecutor and Bongani Goodman Dlamini as the accused person. The deceased was Anivuyo Ndamase, a child aged five years.


The accused was convicted on 5 September 2016 of the murder committed on 1 March 2016. The present judgment, delivered on 17 October 2016, dealt only with the appropriate sentence to be imposed after conviction. The court referred to its earlier judgment on conviction for the detailed factual findings underpinning the verdict, and confined itself to those facts necessary to determine sentence.


The dispute concerned the proper penal response to the murder of a young child in circumstances found to be brutal and callous, together with the weight to be given to the offender’s personal circumstances, the interests of the community, and the existence (or absence) of mitigating factors capable of justifying a sentence less severe than the ordinary approach to murder, particularly murder of a child.


2. Material Facts


It was undisputed for purposes of sentence that the accused stood convicted of the murder of Anivuyo Ndamase, who was five years old at the time of her death. The court accepted, on the strength of its conviction findings, that the accused fatally assaulted the child in his house.


The court relied on the finding that the child was killed by a blow to the head with a large and heavy hammer, delivered with such force that her skull was shattered. The evidence indicated that her head must have been against the floor when the blow was inflicted. On these established facts, the court accepted that by striking her in this manner the accused actually intended to kill her.


The court further relied on post-offence conduct found to be aggravating. The child’s body was found bundled in plastic bags and placed for removal in the area’s weekly refuse collection after a period during which her parents had searched for her for several days. The remains were recovered in an unclothed state, and the court inferred that she must have been undressed when assaulted because, despite evidence of copious bleeding, no blood was found on her clothing.


The court treated as material the fact that the accused had not disclosed how the child came to be in his house, why she was undressed, what occurred immediately before the killing, or his motive. He maintained his innocence despite overwhelming circumstantial proof at trial. The court accepted that this denial meant the child’s parents were left without closure and with ongoing speculation about the circumstances of their child’s death.


In aggravation, the court accepted the evidence regarding the impact on the victim’s parents, including victim impact material and the mother’s evidence. The court found that the murder caused the devastation of the parents’ lives and that the manner in which the child’s decomposing remains were discovered compounded their trauma.


As to the accused’s personal circumstances, the court accepted that he was a first offender, that he had contributed to the maintenance of a disabled younger sister, that he had certain health issues requiring medication, and that he had been in custody awaiting trial for almost 18 months. The defence contention that he had been drinking on the day of the offence was considered, but the court did not accept that intoxication had materially affected his blameworthiness on the evidence before it.


3. Legal Issues


The central question was the appropriate sentence for the murder, assessed against the general sentencing framework and the court’s reference to the legislative approach that murder is ordinarily punished by imprisonment for not less than 15 years unless substantial and compelling circumstances justify a lesser sentence.


The case primarily concerned a value judgment and the application of sentencing principles to established facts. It required the court to evaluate whether any mitigating factors existed that reduced the accused’s moral blameworthiness, and whether the offender’s personal circumstances justified a lesser sentence when weighed against the seriousness of the offence and the interests of society.


A further issue in the application of law to fact was whether the accused’s asserted consumption of alcohol could operate as mitigation by diminishing moral blameworthiness, and whether the absence of remorse should aggravate sentence.


4. Court’s Reasoning


The court approached sentence by applying the conventional triad of sentencing considerations, namely the nature of the offence, the personal circumstances of the offender, and the interests of the community. The court emphasised that sentencing is fact-specific and must be determined with reference to the circumstances peculiar to the case, but always within this broader framework.


In assessing the offence, the court characterised murder as among the most serious crimes known to law. The court highlighted that society and the legal order regard the murder of a child as especially heinous. The judgment linked this assessment to constitutional recognition of the special position of children, referring to section 28(1) of the Constitution, which includes the right of every child to be protected from maltreatment, neglect, abuse or degradation. The court treated the offence as involving an extreme violation not only of the child’s rights to dignity and life, but also of the child-specific constitutional protections.


The court treated the manner of killing as markedly aggravating. The fatal blow with a heavy hammer, delivered to a small child with her head against the floor, was understood as demonstrating direct intent to kill and extreme brutality. The court also evaluated the accused’s conduct after the murder as aggravating, including the elaborate concealment of the body in bags, storage for days, and disposal through domestic refuse collection. The accused’s participation in the search for the missing child was considered to underscore a calculated and cynical attempt to deflect suspicion, rather than any sign of humanity.


In addition, the court placed weight on the accused’s lack of remorse. It found no meaningful expression of remorse in word or deed, and accepted that this compounded the suffering of the parents. While the court acknowledged that shortly after arrest the accused indicated a wish to make a statement suggesting he might “make a clean breast of things,” it regarded this as short-lived and ultimately not followed through. The overall stance throughout was treated as emotional coldness and self-concern, rather than contrition.


The court considered comparative sentencing outcomes in other cases involving the murder of children, not as establishing an inflexible rule but as contextual confirmation that courts attach substantial weight to severe punishment in the community interest. The court referred, among others, to S v Isaacs [2010] 4 All SA 481 (SCA), and to decisions demonstrating that life imprisonment is often regarded as appropriate in child murder cases even where an offender’s personal circumstances are unremarkable. The court also acknowledged that some cited cases involved both rape and murder, whereas the accused in this matter had been acquitted of rape, but noted that the murders in those matters were treated as distinct for sentence purposes.


Turning to mitigation, the court considered the defence submissions that the accused had consumed alcohol, was a first offender, supported a disabled sister, had health issues requiring medication, and had spent a lengthy period in pre-trial incarceration. The court held that these considerations did not amount to compelling mitigation in the context of the crime’s seriousness. In particular, the court found no evidential basis to conclude that the accused’s alcohol consumption diminished his capacity to distinguish right from wrong or reduced his moral blameworthiness, and it noted that the accused did not claim that the beers consumed were relevant to the commission of the offence.


The court ultimately concluded that the accused’s personal circumstances were a subsidiary consideration given the extreme gravity of the offence and the community’s interest in severe sentences for crimes of this nature, especially where no substantial mitigating features were established. Having found no mitigating feature warranting leniency and having identified strong aggravating factors, the court determined that life imprisonment was the appropriate sentence.


5. Outcome and Relief


The court sentenced the accused to life imprisonment for murder.


No separate or additional relief was granted.


The judgment, as provided, did not record any order as to costs.


Cases Cited


S v Isaacs [2010] 4 All SA 481 (SCA)


S v Tata 2015 JDR 2577 (ECG)


S v Madiba 2014 JDR 0556 (SCA)


Frank Nabolisa v The State 2013 (2) SACR 221 (CC)


S v Mukona 2015 JDR 2057 (SCA)


S v Montsho 2014 JDR 0743 (GNP)


Legislation Cited


Constitution of the Republic of South Africa, 1996 (section 28(1))


Child Justice Act 75 of 2008


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that the murder of a five-year-old child by a deliberate and brutal hammer blow, coupled with calculated post-offence concealment and disposal of the body and the accused’s complete lack of remorse, constituted an offence of extreme seriousness warranting the severest punishment.


The court further held that the asserted mitigating factors advanced by the defence, including alleged alcohol consumption, first-offender status, family support obligations, health considerations, and pre-trial detention, did not amount to mitigating features sufficient to justify leniency in the circumstances.


On the facts accepted as established, the court held that an appropriate sentence was life imprisonment, and imposed that sentence.


LEGAL PRINCIPLES


Sentencing requires a court to weigh the case-specific facts and considerations within the established triad of the nature of the offence, the offender’s personal circumstances, and the interests of the community, with the ultimate decision involving an evaluative application of those considerations to the proven facts.


The murder of a child is treated as particularly grave, and constitutional recognition of children’s special protection, including under section 28(1) of the Constitution, informs the seriousness with which such offences are regarded.


In evaluating mitigation based on alcohol consumption, a court requires a factual foundation that the consumption materially affected the offender’s ability to distinguish right from wrong or otherwise reduced moral blameworthiness; absent such a foundation, alcohol consumption does not operate as mitigation.


A demonstrated absence of remorse, particularly where the offender persists in denial despite proven guilt and thereby deprives victims’ families of closure, is a material aggravating factor in sentencing.


Where the offence is extremely serious and there is an absence of compelling mitigating features, the offender’s otherwise ordinary personal circumstances may be treated as relatively subsidiary, and life imprisonment may be regarded as an appropriate sentence.

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[2016] ZAWCHC 156
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S v Dlamini (CC64/2015) [2016] ZAWCHC 156 (17 October 2016)

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 Anivuyo Ndamase on 1 March
2016.  This judgment
is concerned with the imposition of
sentence.
[2]
Anivuyo, who was the daughter of Ms Kholeka
Ndamase and Mr Patrick Makade, 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 Anivuyo’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 Anivuyo.
[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 Anivuyo 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 Anivuyo’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 Anivuyo’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

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