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[2016] ZASCA 111
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Monye and Another v S (107/2016) [2016] ZASCA 111; 2017 (1) SACR 329 (SCA) (2 September 2016)
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THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No:107/2016
In
the matter between:
AMBROSE
MONYE
FIRST APPELLANT
ANDRE
GOUWS
SECOND APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Monye
v S
(107/16)
ZASCA 111 (02 September 2016)
Coram:
Bosielo,
Zondi and Van der Merwe JJA and Schoeman and Potterill AJJA
Heard:
18
August 2016
Delivered:
02
September 2016
Summary:
Sentence
- Appeal against sentence of life imprisonment for murder -
appellants the middlemen in contract killing - only co-operated
with
police and admitted guilt after conviction - no true remorse - no
substantial and compelling circumstances to depart from
minimum
sentence - sentences confirmed on appeal.
ORDER
On
appeal from:
Gauteng
Division, Pretoria (Kruger AJ sitting as court of first instance)
The appeals of both appellants
are dismissed and the sentences of life imprisonment of both
appellants are confirmed.
JUDGMENT
Schoeman AJA (Bosielo, Zondi
and Van der Merwe JJA and Potterill AJA concurring)
[1] The two appellants, Messrs
Ambrose Monye and Andre Gouws, were charged with the murder of Ms
Chanelle Henning (the deceased)
as well as offences related to the
possession of unlicensed firearms. The murder was committed on 8
November 2011. Both appellants
pleaded not guilty and after a trial
they were convicted of murder and acquitted of the other crimes.
[2] During the sentencing
proceedings both admitted to their respective roles in the murder of
the deceased and conceded their guilt.
They were subsequently
sentenced to life imprisonment. Their appeal against sentence only is
with the leave of the trial court.
The facts
[3] On the morning of 8 November
2011 two men, Messrs Martin Pieterse and Petrus Gerhardus du Plessis,
followed the deceased’s
motor vehicle on a motorcycle from her
home to the crèche which her four year old son attended.
Pieterse was the driver
of the motorcycle while du Plessis was his
passenger. Having left her son at the crèche the deceased
started to drive off
in her motor vehicle; du Plessis approached her
and shot her twice at point blank range. Pieterse and du Plessis left
the scene
on the motorcycle. The deceased died as a result of the
wounds inflicted on her.
[4] Five people were arrested for
the deceased’s murder viz Pieterse, du Plessis, Monye, Gouws
and a person who supplied the
firearm. The murder charge against the
latter was withdrawn. The other four were charged with the murder of
the deceased. Pieterse
and du Plessis entered into plea and sentence
agreements with the state in terms of the provisions of
section 105A
of the
Criminal Procedure Act 51 of 1977
. They were each sentenced to
undergo 18 years’ imprisonment in terms of the plea bargain.
Both Pieterse and du Plessis testified
in the trial against the
appellants.
[5] After the appellants’
change of stance during the sentencing proceedings, it became common
cause that Gouws instructed
Monye to find someone to kill the
deceased. Monye arranged with Pieterse and du Plessis to execute the
contract killing. Gouws
thereafter pointed out to Pieterse and du
Plessis (a) the deceased’s security complex; (b) the deceased’s
son’s
crèche; and (c) the school where the deceased
worked. Gouws provided the registration number of the deceased’s
motor
vehicle to them and warned them not to shoot the deceased while
her son was with her in the motor vehicle. It is clear from the
post-conviction statements of Gouws and Monye that both Monye and
Gouws worked as middlemen to have the deceased killed and the
roles
of both were pivotal in the eventual death of the deceased.
[6]
This was clearly a premeditated murder. In terms of the provisions of
s 51(1) of the Criminal Law Amendment Act 105 of 1997
(s 51(1)
(a)
read with Part
I of Schedule 2) the trial court was obliged to impose life
imprisonment unless there were 'substantial and compelling
circumstances' present, in which event, in terms of s 51(3)
(a)
,
a lesser sentence could be imposed. Furthermore if:
‘
[T]he
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.’
[1]
[7]
In
Malgas
it
was set out that the circumstances expressed by the phrase
‘substantial and compelling’ need not be exceptional but
must provide ‘truly convincing reasons’
[2]
or ‘weighty
justification’
[3]
for deviating
from the prescribed sentence and imposing less than life
imprisonment. Furthermore, the specified sentences should
not be
departed from for flimsy reasons
[4]
and should
ordinarily be imposed.
[8] Therefore, to determine
whether there are substantial and compelling circumstances it is
necessary to analyse the facts with
reference to the criminals, the
crime and the interests of society.
The first appellant’s
circumstances
[9] The personal circumstances of
Monye were the following at the time of passing of sentence. He was
39 years old and had two unrelated
previous convictions, which were
not taken into consideration when sentencing him. Monye matriculated
in Nigeria. He was an accomplished
sportsman who represented Nigeria
at the World Athletics Championships in 1993. His parents and
siblings still reside in Nigeria.
He came to South Africa in 2001 and
has a son who was nine years old when sentence was passed. Monye
owned a security company and
earned an income of between R40 000 and
R50 000 per month.
[10] Monye’s personal
circumstances were presented to the court from the bar, during
sentencing proceedings, after which Gouws
testified in mitigation and
exposed Monye’s role in the death of the deceased. Only after
an adjournment did Monye change
his version and admitted his
complicity in the death of the deceased. In a written affidavit by
Monye, which his counsel handed
in on his behalf, it transpired that
Gouws informed him that he would be paid an amount of R50 000
immediately after the ‘job
is done’ and further amounts
later on. Monye’s affidavit concluded with the following:
‘
Today,
as I look back, I am ashamed of what I did, having been part of all
this, I regret it and am sorry. In the rough world where
I was
working, I lost sight of reality’.
The second appellant’s
circumstances
[11] At the time of sentencing
Gouws was a 49 year old first offender. He matriculated and was a
member of the South African Police
Services for a period of five
years. Thereafter, he inter alia worked as an insurance broker and in
transport. He also worked in
the United States of America for some
time and returned to South Africa in 2007. Since his return he had
worked as a debt collector
and also owned a guesthouse. He has a son
who was 10 years old at the time of sentencing.
[12] From Gouws’ affidavit
that was handed in, and his testimony, it transpired that according
to Gouws, Mr Nico Henning,
the husband of the deceased, and the
deceased were embroiled in an acrimonious divorce. Initially Henning
asked Gouws, his friend
of 24 years, to follow the deceased and see
what information he could gather that would reflect badly on the
deceased as Henning
feared that he would not be granted custody of
their son. Later, he asked Gouws to plant drugs on the deceased and
have her arrested.
These plans did not materialise. In the end
Henning promised to pay Gouws R1 million to have the deceased killed
and asked Gouws
whether he would be prepared to shoot the deceased.
Gouws was unwilling to do it himself, but unbeknown to Henning, he
instructed
Monye to get somebody to do the killing. In turn, Monye
contracted with Pieterse and du Plessis. Thereafter Gouws pointed out
the
deceased’s security complex to du Plessis and Pieterse.
[13] The main contention
regarding the personal circumstances of the appellants advanced in
their heads of argument, although not
persisted with in argument, is
that they have shown remorse for their actions and through owning up
to their complicity have started
the process of rehabilitation. Due
to the argument that the volte-face of the appellants amounted to a
substantial and compelling
factor in respect of the interests of the
community, I am of the view that their complete change of direction
should be examined
in all its facets.
[14]
Whether the accused has true remorse is a question of fact.
[5]
In
S
v Matyityi
[6]
the following
was said:
‘
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.'
(footnotes
omitted)
[15] The only expression of
remorse by Monye is the statement he made in the affidavit referred
to above. It is necessary to set
out how and when his remorse was
first mentioned. This only came after a trial where he pleaded not
guilty and testified under
oath. According to his testimony in the
trial prior to his conviction his interaction with Pieterse and du
Plessis was mainly to
supply them with drugs and their employment by
him as bouncers. When he was in their presence and with Gouws, the
latter three
would converse in Afrikaans and he did not understand
what was being discussed. Although they were in each other’s
company
on the day of the deceased’s murder, he was not told
that Pieterse and du Plessis were involved in the killing. Monye
attempted
to exonerate himself and to justify his actions while
placing as much space between him and the murder as possible. After
his conviction
and before sentence his counsel intimated to the trial
judge that he was going to appeal his conviction.
[16] I am of the view that the
surrounding actions of Monye point to the fact that he has shown no
real remorse: he failed to reveal
his complicity to the police in the
whole year before the trial commenced; and during the trial, for a
further period of a year,
he persisted with his denial of any
involvement. After the sentencing proceedings had commenced he placed
his personal circumstances
on record from the bar. It was only after
Gouws subsequently revealed the extent of Monye’s role in the
commission of the
crime, that the latter changed his version. Even
after that he failed to testify under oath and subject himself to
cross-examination
to enable the State to test whether he has shown
true remorse. This failure must be seen in light of the fact that his
role was
not peripheral to but essential and central to the tragic
end result. Through his planning and intervention the shooter was
brought
into the conspiracy. The ineluctable inference is that Gouws’
damning evidence was the motivation for his change of heart
[17] Gouws agreed to change his
version after he came to an agreement with the State that he would
reveal the whole plot, on condition
that the State would ask for 20
years’ imprisonment. He displayed no remorse in the affidavit
he presented to court, while
his testimony during sentencing was also
devoid of any mention of remorse. His change of heart did not
constitute remorse if the
surrounding facts are taken into
consideration. As with Monye, he did not demonstrate any remorse for
the duration of the period
prior to the commencement of the trial and
for the year of the trial. In his testimony prior to conviction he
emphatically denied
instructing anybody to kill the deceased. It was
only after conviction that he capitulated.
The crime
[18] The deceased was an innocent
young woman who was killed because she allegedly insisted on the
custody of her son in divorce
proceedings. Due to her death her child
is without a mother and her parents have also lost a daughter. The
murder by the two appellants
in this instance was a callous and cruel
deed, committed purely for greed. Monye agreed to become involved
when he was promised
an amount of R50 000 while Gouws was swayed by
his friendship with Henning and the promise of an amount of R1
million. The trial
court found that without the monetary carrot it
was unlikely that Gouws would have agreed to the killing of the
deceased.
[19] Due to the nature of the
crime of assassination, or contract killing, the objectives of
deterrence and retribution emerge in
the forefront of the process in
imposing punishment for such crimes.
Interests of society
[20]
In
S
v Karg
[7]
Schreiner
JA emphasised the interest of the community when he said:
‘
It
is not wrong that the natural indignation of interested persons and
of the community at large should receive some recognition
in the
sentences that Courts impose, and it is not irrelevant to bear in
mind that if sentences for serious crimes are too lenient,
the
administration of justice may fall into disrepute and injured persons
may incline to take the law into their own hands. Naturally,
righteous anger should not becloud judgment.’
[21]
The community interests are of paramount importance when sentencing
hired killers. Our Courts have in a whole series of judgments
sentenced contract killers and persons who acted in concert with them
severely. In
S
v Mlumbi en 'n Ander
[8]
it was stated that it is uncertain which is the worse, a contracted
killer who kills someone else for money as he does it for greed
or
the contracted killer who kills another without payment as he is
clearly without a conscience. I quote from the headnote where
the
following translation from the judgment is found:
‘
[A]
contract assassination was a heinous offence which has from early
times filled people with horror. It was also the kind of offence
which held deadly danger for any community and was in fact the kind
of atrocity which gave a particularly sombre meaning to the
age-old
expression '
homo
homini lupus
'
[a man is a wolf to another man] . . . [T]he present South African
society was seriously threatened by such conduct, and
dared not
tolerate it
.
’
In
S
v Dlomo
[9]
Goldstone JA said that offenders must be made aware that, except in
exceptional cases, the courts will impose severe sentences
on them.
[22]
In
S
v Kgafela
[10]
Friedman JP said (paras 83 and 84) that:
‘
Assassination
contracts contain profound dangers and are a type of atrocity to be
combatted, and the Courts have a duty in the discharge
of its
function to visit such perpetrators with the severest punishment. . .
In consequence of the aforegoing, the hiring of assassins has been
treated as a serious aggravating factor.’
In
S
v Ferreira and Others
[11]
the court said when confirming the imposition of life sentence:
‘
Having
regard to the nature of the crime they committed - killing for money
- and the limited extent of the mitigating factors referred
to, the
condemnation expressed in previous cases of contract killing applies
unrestrictedly to them. There are, on the
Malgas
test,
no substantial and compelling circumstances which justify a lesser
sentence in their cases.’
There,
the hired killers were 22 and 20 years old respectively and they
pleaded guilty.
[23]
It was argued that the fact that the appellants were willing to
testify against the alleged instigator of the murder was in
itself a
substantial and compelling circumstance and therefore the prescribed
sentence of life imprisonment was unjust in the circumstances
of this
case. However, Pieterse and du Plessis demonstrated when and how
co-operation with the relevant authorities should have
taken place to
derive the benefit from such co-operation. The actions of the
appellants smack of opportunism. It was only when
the writing was on
the wall for both of them that they made an about-turn. It was not to
benefit society or to enable the deceased’s
family to have
closure and not relive their trauma, but to benefit themselves.
[24]
I am of the view that it would not be in the interests of society
that the appellants be allowed to use such a volte-face as
an escape
route to avoid a sentence peremptorily prescribed by the Legislature.
That would send out a wrong message and ignore
the elements of
deterrence and retribution that are so important in cases of this
kind. I am not satisfied that in the circumstances
of this case their
about-turn is so weighty as to qualify as a substantial and
compelling circumstance and to justify a sentence
less than
imprisonment for life.
[25]
The trial judge did not misdirect himself. Therefore there are no
reasons to interfere with the imposed sentence.
The
appeals of both appellants are dismissed and the sentences of life
imprisonment of both appellants are confirmed.
______________________
I
Schoeman
Acting
Judge of Appeal
APPEARANCES
For
Appellants:
J van Wyk (Heads of argument prepared by D H Mostert)
Instructed by:
Pretoria
Justice Centre
Bloemfontein
Justice Centre, Bloemfontein
For
Respondent:
G C Nel (and A Rossouw) (Heads of argument prepared by G C Nel)
Instructed by:
Director of
Public Prosecutions, Pretoria
Director of
Public Prosecutions, Bloemfontein
[1]
S v Malgas
[2001]
ZASCA 30
;
2001 (2) SA 1222
(SCA) para 25.
[2]
Paras 8 and 25.
[3]
Paras 18 and 25.
[4]
Para 25(D).
[5]
S v Volkwyn
[1994]
ZASCA 175;
1995
(1) SACR 286 (A)
at 289
h.
[6]
S v Matyityi
[2010]
ZASCA 127
;
2011 (1) SACR 40
(SCA) para 13.
[7]
S v Karg
1961(1)
SA 231 (A) at 236B-C.
[8]
S v Mlumbi
en 'n Ander
[1990]
ZASCA 153; 1991 (1) SACR 235 (A).
[9]
S v Dlomo & others
[1991] ZASCA 94
;
1991 (2) SACR
473
(A) at 477h to 478b.
[10]
S v
Kgafela
2001
(2) SACR 207 (B).
[11]
S v
Ferreira and Others
[2004]
ZASCA 29
;
2004 (2)
SACR 454
(SCA) para 53.