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[2011] ZAGPJHC 212
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S v Mlombo (CC 25/2010) [2011] ZAGPJHC 212 (18 February 2011)
IN THE HIGH COURT OF
SOUTH AFRICA
(CIRCUIT LOCAL DIVISION
FOR THE EASTERN LOCAL DISTRICT)
Case No. CC 25/2010
Date: 18 February 2011
In
the matter of:
THE
STATE
Versus
JIKA
ELVIS MLOMBO
SENTENCE
MEYER, J
[1] The
accused, Mr Jika Elvis Mlombo, was convicted of the murder of the
late Mr Timothy Daklaas Mashego (‘the
deceased’) (count
1), of the unlawful possession of a 9 mm pistol with serial number
obliterated (count 4), and of the unlawful
possession of 9 mm bullets
(count 5).
[2]
The murder conviction of the accused is a conviction of an offence
referred to in Part I of Schedule 2 of the Criminal
Law Amendment Act
105 of 1997 (‘the Act’). The murder was planned and
premeditated. The prescribed sentence,
in terms of ss 51(1) of
the Act, is one of imprisonment for life, unless substantial and
compelling circumstances within the meaning
of ss 51(3) thereof
exist, which justify the imposition of a lesser sentence. The
starting point in respect of considering
an appropriate sentence for
the murder conviction of the accused is imprisonment for life.
State v Matyityi
(695/09
[2010] ZASCA 127
(30 September 2010),
para [18]. In considering whether or not substantial and
compelling circumstances exist, which would
justify the imposition of
a lesser sentence than that of imprisonment for life, the traditional
objectives of punishment –
prevention, retribution, deterrence,
and rehabilitation - apply, and I am enjoined to weigh the personal
circumstances of the accused
against the crime committed by him and
the interests of society.
[3] In terms
of a confession that the accused made extra-curially and evidence
before conviction, he had killed the
deceased on 3 September 2009 to
bring an end to the deceased’s unrelenting revenge from which
the accused tried in vain to
flee. Such revenge was triggered
by a love affair that had existed between the accused and the
deceased’s wife.
The accused told Supt Pule, to whom he
made the confession, that he was traced wherever he attempted to hide
from the deceased.
He was once shot at by the deceased and
threatened to be killed and fire-arms were pointed at him by the
deceased and by those
who acted for him. He claimed that police
officers arrived at his house and confronted him with the
relationship he had with
the deceased’s wife. An assault
upon him followed whereafter he remained in a coma for three days.
He was taken
to the Rob Ferreira hospital by ambulance. He also
said that he laid charges at the Nelspruit SAPS against the police
officers
who were involved in the brutality against him.
[4]
I accordingly, for the purpose of sentence, required the police
docket relating to the charge which the accused
had laid as well as
such medical records or information that could be obtained.
According to the investigating officer, Cst
DD Sanderson, who
testified at these sentence proceedings, the personnel at the Rob
Ferreira Hospital was unable to furnish him
with any such medical
records pertaining to the accused. They could simply not be
traced. This, I accept, does not
mean that such records never
existed. Cst Sanderson further presented a police docket that
was opened at the Nelspruit SAPS
in connection with charges of
assault with the intent to do grievous bodily harm, malicious damage
to property, and the pointing
of a firearm that the accused had laid
against two police officers. It, however, appears from the
accused’s statement
in that matter (exhibit ‘M’)
that the charges relate to alleged police brutality in an unrelated
matter which does
not involve the deceased. The evidence of the
accused, who also testified at these sentence proceedings, on this
issue is
unsatisfactory and does not assist in supporting his claim
that he was also subjected to police brutality at the instance of the
deceased.
[5]
I also required a pre-sentence report. Mr John Sipho Thwala, a
probation officer in the employ of the Mpumalanga
Provincial
Government Department of Health and Social Services prepared one
about the personal circumstances of the accused and
the impact of the
murder committed by him on the deceased’s wife and children
(exhibit ‘L’). The information
contained in the
pre-sentence report is not in dispute, except for an erroneous
statement that ‘[t]he accused pleaded guilty
on charges of
murder, possession of a fire-arm and ammunition.’ He did
not plead guilty to any of the charges against
him. The accused
and his mother furnished the probation officer with contradictory
information on certain aspects.
I consider such contradictions
not to be material to the imposition of appropriate sentences upon
the accused.
[6]
The accused was born on 16 November 1967. His parents had ten
children, seven boys and three girls.
The accused is their
seventh child. Six of his siblings had passed away. His
father had also passed away some time
ago. The accused,
according to the information contained in the probation officer’s
report, displayed no behavioural
problems as a child. His
mother considered him to be ‘... a well behaved child who
always avoided conflict with others’,
and this is why ‘...
it was such a shock to her to learn that her son had killed another
human being.’ The accused
passed standard nine at
secondary school and he has been involved in various business
enterprises over years. The probation
officer
inter alia
refers to his involvement in ‘... the construction
business, particularly the construction of RDP houses ...’, and
his
‘... owning a business where he constructed and installed
electric gates.’ The accused earned between R3, 000.00
and R4, 000.00 per month at the time of his arrest.
[7]
The accused testified that he was married to Ms Angel Tsabetse and
that they lived together at the time of his arrest.
Two
children were born from their union. Ms Tsabetse and their two
children reside with the accused’s mother, who is
a pensioner
receiving a government grant. The accused also has one other
child with another woman. His children are
aged 17, 14, and 8
and all school going. The accused and his mother supported the
children financially before his arrest.
This responsibility is
now carried by his mother alone. The accused’s children, and
his mother, will undoubtedly suffer emotional
and financial hardship
if he is to serve a custodial sentence.
[8]
The accused’s health is not good. He suffers from several
few medical conditions. He informed
the probation officer that
he receives medication from the prison clinic. He also informed
the probation officer of emotional
problems which he experiences.
They are, in the view of the probation officer, ascribed to his
‘...his worrying about
his mother and children.’
The accused informed the probation officer that ‘... he worries
about who will look
after them when he is in prison. He is
worried that his mother is old and might die leaving his children
with no one to care
for them.’ I accept that
incarceration is not ideal for a person with the accused’s
medical and emotional conditions.
One also feels deeply for the
accused’s family. These are factors that must be weighed
against the other factors and
they must not be considered in
isolation.
[9]
Another factor that is relied upon as constituting substantial and
compelling circumstances within the meaning of
that expression is
remorse on the part of the accused. He cooperated with
the police after his arrest; he told
a family member of the
deceased what had happened between him and her uncle, the deceased,
and he apologised to her during a prison
visit that had been arranged
at her request; he incriminated himself when he testified at
his criminal trial; he told
the probation officer that he is
remorseful for what he has done and that he is willing to take
responsibility for his actions;
and, when he testified in
mitigation of sentence, he also expressed remorse saying what he ‘...
did is a sin and a criminal
offence’ and that he ‘...
would like to ... apologise to the Mashego family who are here in
court.’
[10]
The accused undoubtedly cooperated with the police. I do not,
however, lose sight of the fact that the eyewitness, mr
MM Dlamini,
identified the accused to the police shortly after the incident had
occurred and before the accused assisted the police
in making the
pointing outs of the place where he had hidden the firearm with which
he had shot the deceased and of and at the
scene of the crime as well
as in making the confession to col TM Pule. I also do not lose
sight of the evidence of const
Sanderson, who testified at the
trial-within-this-trial, that when he interviewed the accused he
appeared to him ‘... as
if he was free and as if he got rid of
something that was in his way’ and that of col Pule, who also
testified at the trial-within-this-trial,
that the accused mentioned
to her that he and the deceased had been chasing each other and that
they would ‘... no longer
be suffering from the same
suffering.’ The probation officer states the following in
his report:
‘
The investigating officer
reported that even at the time of his arrest Mr Mlombo appeared not
to be shaken by what he had done.
Apparently at the time of
arrest they took him to his mother and when she asked him what had
happened he calmly responded that
he had killed Mashego, not showing
any signs of being shaken by what he has just done.’
[11] The accused pleaded
not guilty to all the charges against him. The pointings out
and confession that he had made were
hotly disputed on various
grounds. They were eventually ruled admissible in evidence
against him. I found the accused
to have been a most
unimpressive witness at the trial-within-the-trial and his evidence
on the disputed issues to have been untruthful
and unreliable
throughout.
[12] By the time the
accused elected to testify, the evidence linking him to the offences
with which he was charged was overwhelming.
In giving evidence
he then confirmed and adopted most of what is recorded in his
confession. He admitted to pointing out
to members of the SAPS
the scene of the crime as well as the firearm with which he had
admittedly shot the deceased. But
he belatedly also raised a
defence of self-defence. I found that there was simply no
question of self-defence.
[13]
The accused did not show any remorse when he incriminated himself in
the witness stand before conviction. The probation
officer
states in his report that during his interview with the accused,
which interview I should add occurred after the accused
had been
convicted, the accused ‘... showed no emotion. He did not
appear sad, stressed or uneasy when he related how
he murdered the
deceased.’
[14]
I am in all the circumstances unable to find that the accused’s
words and actions translate into sincere remorse and
a valid
consideration to be taken into account in mitigation of sentence.
The accused may well presently regret his conduct
‘... but that
does not without more translate to genuine remorse.’
Matyityi
(supra),
para [13].
[15]
The accused has previous convictions. On 25 October 2000, he
was convicted of malicious damage to property and sentenced
to a fine
of R1000.00 or three months’ imprisonment (exhibit ‘K’).
This was his third and last previous
conviction. His second one
was a conviction on 5 March 1997, when he was convicted of reckless
and or negligent driving and
sentenced to a fine of R1, 000.00 or
imprisonment for three months. His first previous conviction,
on 9 November 1987, was
for theft and he was sentenced to six cuts
with a light cane. These previous convictions, within the
context of the accused’s
present convictions, merely disqualify
him from being regarded as a first offender.
[16]
The accused committed a grave crime. He acted in flagrant
disregard of the sanctity of human life. He planned the
murder. He went into action and shot at the deceased, who was
sitting defenceless in his vehicle, several times. Eight
bullets penetrated the body of the deceased. Cartridges and
spent bullets were spread all over the area. The accused’s
attack upon the deceased was a surprise one at a stage when the
deceased on the accused’s own version did not pose any threat
to him. There was no need for the accused to kill the deceased
and any threat which the deceased in the past or in the future
might
have posed to the accused’s life or limb could effectively have
been avoided by other means. The accused said
the following in
his evidence before conviction: ‘
I went there to do
what I wanted to do and I did it.’
The accused
condemned his adversary to death and executed him in cold blood.
[17]
It appears from the probation officer’s report that the death
of the deceased had and still has devastating consequences
for
inter
alia
the deceased’s wife, Ms Beaty Thwala, and their three
children. The family was and still is deeply affected by his
untimely
death. The deceased was involved in the lives of his
three children and they experience great difficulty in coming to
terms
with the loss of their father. Apart from their emotional
suffering and the sequelae thereof, which are set out in the
probation
officer’s report, the death of the deceased brought
severe financial hardship to the family. The deceased was their
breadwinner. His death brought about a severe lowering in their
standard of living. His children are now deprived of
the
indulgences that they were accustomed to. His wife is unable to
pay the utility bills in respect of their family home
in White
River. She is financially assisted by members of her family to
provide for their basic needs.
[18]
Our country at present suffers an unacceptable and distressing
incidence of violence. Ponnan J, in a recent judgment
of the
Supreme Court of Appeal in
Matyiti (supra)
, para [23],
describes the present situation as follows:
‘
Despite certain limited
successes there has been no real let-up in the crime pandemic that
engulfs our country. The situation
continues to be alarming.
It follows that, to borrow from
Malgas
,
it still is ‘no longer business as usual.’
The community demands
that courts deal firmly and severely with offenders such as the
accused and for appropriately severe punishments
to be imposed upon
them.
[19] The personal
circumstances of the accused and the other mitigating factors and
circumstances in his favour cumulatively do
not amount to substantial
and compelling circumstances within the meaning of the Act when
balanced against the gravity of the murder
committed by him and the
legitimate interests of society.
[20]
In giving due weight to all the circumstances and considerations
relevant to the imposition of sentences for the accused’s
other
convictions, I consider appropriate sentences of imprisonment for a
period of five years and for a period of one year for
his convictions
of the unlawful possession of a firearm (count 4) and of the unlawful
possession of ammunition (count 5).
[21]
In the result:
1. The accused is
sentenced to:
1.1 imprisonment
for life pursuant to his conviction of murder (count 1);
1.2 imprisonment for a
period of five years pursuant to his conviction of the unlawful
possession of a firearm (count 4); and
1.3 imprisonment
for a period of one year pursuant to his conviction of the unlawful
possession of ammunition (count 5).
2. The sentences of
imprisonment for a period of five years pursuant to the accused’s
conviction of the unlawful possession
of a firearm (count 4) and of
imprisonment for a period of one year pursuant to his conviction of
the unlawful possession of ammunition
(count 5) run concurrently with
the accused’s sentence of imprisonment for life pursuant to his
conviction of murder (count
1).
3. The accused is
declared unfit to possess a firearm.
P.A. MEYER
JUDGE OF THE HIGH COURT
18 February 2011