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[2011] ZAGPJHC 165
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S v Mabasa (65/2011) [2011] ZAGPJHC 165 (18 November 2011)
NOT
REPORTABLE
SOUTH
GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO:
65/2011
DPP REF NO:
JPV2011/0045
DATE:18/11/2011
In
the matter between
THE
STATE
and
MTSHENGISENI
MABASA
............................................................
ACCUSED
J U D G M E
N T
(SENTENCE)
VAN OOSTEN J:
[1] The accused has been
convicted of four very serious crimes. He must now be sentenced. In
the consideration of an appropriate
sentence to be imposed, this
Court is enjoined to carefully and dispassionately consider and
balance the gravity of the offenses,
the personal circumstances of
the accused and the interests of society.
[2] The facts of this matter
reveal the tragic consequences that followed upon the accused burning
the deceased’s shack: three
women senselessly lost their lives
in the most agonising circumstances when they burnt to death. From
the evidence presented by
the State in aggravation of sentence it
appears that Cebisile Nkosi was the mother of a 4 year old child and
that the deceased,
Sibongile Zinhle Ngobese, the mother of two
children, aged 8 and 5 years. These children, for all practical
purposes, have been
left orphaned by the loss of their mothers and
their care and custody have since been entrusted to family members
under extremely
difficult and often adverse circumstances. They will
moreover have to endure the reality and misery of having to grow up
without
their mothers. The evidence furthermore revealed the grief,
sorrow and devastating losses suffered by the families of the
deceased.
[3] The accused’s conduct
was pre-planned, resulted from jealousy and was purely aimed at
self-gratification. Considerable
damage was moreover caused to the
shack. I accept that the accused was under emotional stress at the
time but then he could have
availed himself of the more than
sufficient time for reflection and the several opportunities that
arose for seeking help. This
kind of behaviour where people take the
law into their own hands cannot be tolerated in a civilised society
and the community with
ample justification expects the courts to
impose heavy deterrent sentences when this occurs.
[4] This brings me to the
personal circumstances of the accused as advanced in his evidence in
mitigation of sentence. The accused
is 22 years old, single and the
father of a child, 6 years old, currently in the care of its mother
and grandmother. He left school
at the age of 14, having reached
grade 7. He has quite clearly not had the advantage of proper
education and a sophisticated background.
Having left school he
performed odd jobs including cleaning for a living. The accused has
no previous convictions.
[5] Having considered all the
circumstances of this case I have come to the conclusion that there
are substantial and compelling
circumstances justifying a lesser
sentence than the statutory prescribed minimum sentence on count 1.
In this regard I take into
account the accused’s relatively
youthful age and the fact that his actions followed upon emotional
stress. I am moreover
satisfied that the ultimate sentence this court
can impose would be disproportionate to the crimes he has been
convicted of. I
furthermore consider differentiation between the
sentence to be imposed for the murder on the one hand and the
culpable homicides
on the other, as appropriate. In regard to the
convictions of culpable homicide the accused’s conduct, as I
have referred
to in the judgment on the merits, was grossly
negligent. He plainly took no steps at all to satisfy himself that
there were no
occupants in the shack. Having further regard to the
cumulative effect of the sentences I intend imposing, some
concurrence will
be ordered.
[6] In conclusion I have no doubt
that the long term prospects of rehabilitating the accused within the
prison environment, at his
age, are real, which therefore ought to be
reflected in the sentence that I am about to impose. In his evidence
the accused lamely
proffered some remorse and extended some sympathy
to the families of the deceased. Although somewhat belatedly and
understandably
frowned upon by one of the deceased’s family
members who gave evidence in aggravation of sentence, this indeed is
an encouraging
indication towards rehabilitation. The gravity of the
offences, however, demands the imposition of a long term of effective
imprisonment.
[7] In the result the accused is
sentenced as follows:
7.1 On count 1 (murder): 20
years’ imprisonment.
7.2 On count 2 (culpable
homicide): 10 years’ imprisonment.
7.3 On count 3 (culpable
homicide): 10 years’ imprisonment.
It is ordered that the sentences
imposed on counts 1, 2 and 3 be served concurrently.
7.4 On count 4 (arson): 5 years
imprisonment.
The effective term of
imprisonment therefore is 25 years’ imprisonment.
_________________________
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
COUNSEL FOR THE STATE:
ADV (MS) P MARASELA
COUNSEL FOR THE
ACCUSED: ADV (MS) M LEOTO
DATE OF JUDGMENT: 18
NOVEMBER 2011