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[2013] ZAGPJHC 115
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S v Mdluli (JPV 2010/0046) [2013] ZAGPJHC 115 (21 May 2013)
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NOT REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO: JPV 2010/0046
DATE:21/05/2013
In
the matter between
THE
STATE
and
NOMSHADO JODI MDLULI
…...............................................
ACCUSED
J U D G M E N T
(SENTENCE)
VAN
OOSTEN J
[1] The accused has
been convicted on 12 counts, of which are 3 counts of murder. In
respect of the conviction on the murder counts,
and having found that
the attack on the Sekoati household was pre-planned and executed with
dolus
directus
,
the provisions of the
Criminal Law Amendment Act 105 of 1997
,
prescribing a sentence of life imprisonment, apply. It is at the
outset necessary to refer to the approach that should be adopted
by
this court concerning imposing
statutory
mandatory minimum sentences. In
S
v
Matyityi
2011
(1) SACR 40
(SCA), Ponnan JA, set it out 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'. And yet one notices all too frequently a
willingness on the part of sentencing courts
to deviate from the
minimum sentences prescribed by the legislature for the flimsiest of
reasons - reasons, as here, that do not
survive scrutiny. As
Malgas
makes plain courts
have a duty, despite any personal doubts about the efficacy of the
policy or personal aversion to it, to implement
those sentences. Our
courts derive their power from the Constitution and like other arms
of state owe their fealty to it. Our constitutional
order can hardly
survive if courts fail to properly patrol the boundaries of their own
power by showing due deference to the legitimate
domains of power of
the other arms of state. Here parliament has spoken. It has ordained
minimum sentences for certain specified
offences. Courts are obliged
to impose those sentences unless there are truly convincing reasons
for departing from them. Courts
are not free to subvert the will of
the legislature by resort to vague, ill-defined concepts such as
'relative youthfulness' or
other equally vague and ill-founded
hypotheses that appear to fit the particular sentencing officer's
personal notion of fairness.
Predictable outcomes, not outcomes based
on the whim of an individual judicial officer, is foundational to the
rule of law which
lies at the heart of our constitutional order.’
(See also:
S
v Malgas
2001 (1) SACR 469
(SCA); and
S v Dodo
[2001] ZACC 16
;
2001 (1)
SACR 594
(CC), endorsing the approach in
Malgas
).
[2] In the consideration of an
appropriate sentence to be imposed it is incumbent upon this court
“to assess, upon a consideration
of all the circumstances of
the particular case, whether the prescribed sentence is indeed
proportionate to the particular offence”
(
per
Nugent JA
in
S v Vilakazi
2009 (1) SACR 552
(SCA)). Adopting this
approach I turn to deal with and consider the accused’s
personal circumstances, the severity of the
offences she has been
convicted of against the background of the interests of society. In
this process, the element of mercy, which
forms the cornerstone of a
civilised society, must never be overlooked.
[3] The mother of the accused, Ms
Simelane, testified in mitigation of sentence. She is a widowed
pensioner who lives in Lichtenburg.
The accused is her only child.
Her husband died when the accused was 4 years old. She has taken over
the care of the accused’s
children since the date of the
accused’s arrest in March 2010. The father of the children,
Ndumiso, not surprisingly, does
not contribute to their maintenance
and has for all practical purposes deserted them. The result is that
Ms Simelane is reliant
on a meagre income derived from a state social
grant. The children, apart from having to cope with the constant
reality of an absent
mother, are all school-going and well-cared for.
[4] The accused is presently 31 years
old. She holds a BCom degree from UNISA as well as a diploma in
Finance, obtained at Damelin
College. Of great concern is that the
accused has had a brush with the law before: on 1 November 2011,
while she was awaiting this
trial in prison, she was convicted on 8
counts of fraud, which were committed in September and October 2007,
for which she was
sentenced to an effective period of 10 year’s
imprisonment, which she is presently serving. She has accordingly
been in custody
for just more than 3 years since the date of her
arrest in this matter. In view of the sentence imposed, I am unable
to accede
to her counsel’s request to consider the whole of
this period as an awaiting trial period. I do however, take into
account,
as one of the factors that should be taken into account in
determining an appropriate sentence, the period of detention from the
date of her arrest until 1 November 2011, which is some 20 months
(see
Radebe v S
(726/12)
[2013] ZASCA 31
(27 March 2013)
.
Lastly, it is regrettable that the accused has not shown any sign
of remorse. She raised a false alibi and maintains her innocence.
[5] The gravity of the offences the
accused has been convicted of cannot be over-emphasised. It is hardly
possible to properly describe
the horrific incident that was caused
by the careful pre-planning and supportive involvement of the
accused. The callousness, cruelty
and brutality of the attack on the
innocent and defenceless occupants of the house at Mapetla, the
terrible consequences of three
people, including two young children,
having burnt to death and the house destroyed, heave this matter into
the category of the
most serious cases this court has ever dealt
with. The attack was primarily aimed against a child, L, on whose
behalf M’s
last desperate plea was unscrupulously turned down.
This conduct, I should add, surpasses all human understanding.
[6] Right thinking
members of our
society, with ample justification, demand that
heavy punishment should be meted out to persons who commit such
hideous and cruel
crimes.
Against this background
the
personal circumstances of the accused, when weighed
against the seriousness of the crimes, pale into insignificance. The
accused’s
children will no doubt suffer if she is permanently
removed from society but, as against this, they are well-cared for
and will,
in any event, for ever have to live and cope with the
knowledge and disgrace of their mother having been convicted and
sentenced
for these abhorrent crimes. Having taken into account and
balanced all the aggravating and mitigating factors I have come to
the
conclusion that there are no substantial and compelling
circumstances justifying the imposition of a lesser sentence than
life
imprisonment, which in my view, is proportionate to the crimes
the accused has been convicted of. I should add that I, even in the
absence of the minimum sentence legislation, in the exercise of my
discretion, would still have imposed the ultimate sentence.
[7] Lastly, I do not think it will
serve any useful purpose to impose separate sentences in respect of
each count. I therefore propose
to impose one composite sentence in
respect of all 12 counts.
[8]
Taking
all the factors mentioned above into account the accused is sentenced
as follows:
On counts 1 to 12, taken together for
the purpose of sentence, the accused is sentenced to life
imprisonment.
It is ordered that the sentence be
served concurrently with the sentence the accused is serving
presently.
[9] The immediate relatives of the
deceased persons are hereby informed, in terms of
section 299A
of the
Criminal Procedure Act 51 of 1977
, that they have the right, subject
to the directives of the Commissioner of Correctional Services, to
make representations when
placement of the accused on parole, on day
parole or under correctional supervision is considered, or to attend
any relevant meeting
of the parole board.
___________________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR THE STATE
:
ADV P NEL
COUNSEL
FOR THE ACCUSED: ADV R MUFAMADI
DATE
OF JUDGMENT: 21 MAY 2013