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[2013] ZAGPJHC 122
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S v Maswetsa (CC 28/2013) [2013] ZAGPJHC 122; 2014 (1) SACR 288 (GSJ) (30 May 2013)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
CIRCUIT LOCAL DIVISION OF THE WESTERN CIRCUIT COURT
CASE NO CC 28/2013
DATE:30/05/2013
In the matter between
THE STATE
and
ERIC MONYAKA
MASWETSA
.......................................................................
ACCUSED
Summary
Housebreaking with intent to rob and robbery – such to be
separated as a charge of housebreaking with intent to rob on the
one
hand and a robbery charge on the other hand. This separation of
charges has become necessary by virtue of the provisions of
the
Criminal Law Amendment Act 105 of 1997
which requires certain minimum
sentences to be imposed upon convicting an accused on specified
offences. Housebreaking with intent
to rob is a conviction that
requires a court to impose a minimum sentence different from the
minimum sentence which falls to be
imposed for robbery, whether on a
first, second or third offender. Only a conviction of robbery would
set the provisions of Part
ɪɪ of Schedule 2 of the Act in
motion should an accused be found guilty of robbery. Different
sentences are provided
for to all crimes for which minimum sentences
are prescribed. The combination of a charge of housebreaking with
intent to commit
a crime and the crime itself is no longer feasible
where minimum sentences may be imposed on each such crime.
J U D G M E N T
WEPENER J:
[1] The accused, Mr Eric Monyaka Maswetsa, stands charged with three
counts. In count 1 it is alleged that on the 11
th
of May
2012 he unlawfully killed Joyce Seleke. In count 2 it is alleged that
on the same date he unlawfully attempted to kill Boitumelo
Seleke.
Count 3 reads as follows:
‘
That the accused is guilty of housebreaking with the intent
to rob and robbery with aggravating circumstances as defined by
s 1
of Act 51 of 1977 read with s 51 of Act 105 of 1997 in that on or
about 11 May 2012 and at or near 2576 Mphatswe Street, Khuma
Location
in the district of Klerksdorp, the accused did unlawfully and
intentionally break and enter the house of Joyce Matlakala
Seleke
with intent to rob and did unlawfully and intentionally assault Joyce
Matlakala Seleke and did there and then and with force
take the
following items from her to wit, a DVD player, play station, wrist
watches, cell phones and
(an)
undisclosed amount of money her
property or property in her lawful possession, aggravating
circumstances being present in that
a knife was used.
’
[2] In my view, the words commencing with ‘
...and did
unlawfully and intentionally assault and did then and there and with
force take the following items from her...
’, constitute a
charge of robbery. Although, the assault together with the forceful
taking of the items is robbery, no separate
charge of robbery has
been brought against the accused and the allegations should be seen
as part of one count only. There cannot
be two convictions on count
3. Jennet, J said in
S v Cetwayo
2002 (2) SACR 319
(E) as
follows at 321:
‘
It is trite that housebreaking with intent to
commit an offence is in itself a substantive offence (see s 262 of
Act 51 of 1977)
and that it is a separate offence from the actual
offence, for the purpose of which the housebreaking was committed, if
such be
committed. The practice is, however, that, if the offences
relate to what is in effect a single incident, they are, unless there
is good reason to the contrary, charged as a single offence and a
single punishment is imposed.
In confirmation of the above I need only refer,
firstly, to R v Chinyerere
1980 (2) SA 576
(RA) where at 580A-C Lewis
JP said the following:
“
One has to bear in mind, however, that
housebreaking with intent to steal and theft are two separate
offences. This is made clear
in Hunt South African Criminal Law and
Procedure vol II. The learned author traces the history of
housebreaking with intent to
steal and theft and points out that
under the old Roman-Dutch law housebreaking with intent to steal and
theft was simply regarded
as an aggravated form of theft. However, in
the modern South African law this is no longer the case. The learned
author at 644
says this:
‘
The effect of this development is that, unlike
Roman Dutch law, house-breaking is no longer regarded as an
aggravated form of
theft. The house-breaking with intent to steal and
the theft are two separate offences, though they are in practice
charged and
punished as one offence, so that in such cases the result
is the same.’”
And secondly, to S v Zamisa
1990 (1) SACR 22
(N)
where at 23 d-e Thirion J said
:
“
It is settled practice to charge as one count
the crime of housebreaking with intent to commit a crime and the
crime itself, which
was committed in consequence to the breaking and
for the purpose for which the breaking in was committed. So much so
this is the
practice that only one sentence is imposed in respect of
a conviction of housebreaking with intent to commit a crime and the
further
crime, to commit which the breaking was effected. That
circumstance, however, does not do away with the fact that the
house-breaking
with intent to commit the crime is in itself a
distinct crime which is separate from, and not dependent upon, the
crime committed
after entry has been effected.
”
It is also a practice which carries the approval of
the Appellate Division, as it then was, in S v S
1981 (3) SA 377
(A)
where at 380H Rumpff CJ said:
“
Tegnies gesien, is, in hierdie besondere
geval, die inbraak en verkragting net so nou verbind met mekaar as
die misdade van huisbraak
met die opset om te steel en diefstal, wat
in die praktyk in ons reg as een misdaad aangekla en gestraf kan
word.”
There is no good reason in the present case why the
accused should not have been charged and convicted of a single
offence of housebreaking
with intent to steal and theft in respect of
each of the incidents concerning which he was charged...
’
[3] This, in my view, can no longer hold good since the promulgation
of the Criminal Law Amendment Act 105 of 1997 (the
Criminal Law
Amendment Act) which
prescribes minimum sentences for offences
falling within the ambit of the Act. The nature of the conviction is
relevant when sentencing
an accused person. It is highly relevant
whether the accused is found guilty of housebreaking with intent to
rob or robbery. The
first mentioned conviction ordinarily attracts a
minimum sentence in terms of part IV of Schedule 2 the
Criminal Law
Amendment Act i.e
. 5 years imprisonment for a first offender, 7 years
imprisonment for a second offender and 10 years imprisonment for a
third offender,
whilst robbery on the one hand, in certain prescribed
circumstances, attracts a minimum sentence of 15 years imprisonment
for a
first offender, 20 years imprisonment for a second offender and
25 years imprisonment for a third offender. Various different
sentences
may be imposed upon an accused depending on the nature of
his or her conviction or previous convictions, should he or she be
convicted
of offences referred to in the
Criminal Law Amendment Act.
Also
, if an accused is found guilty of housebreaking with intent to
rob such a conviction, in my view, is not an offence which can be
regarded as robbery for purposes of sentencing an accused as a second
or third offender when he or she is later convicted on a
charge of
robbery. Only the substantive charge of robbery would qualify to be
taken into account when sentencing an accused person
to the minimum
sentences prescribed for robbery under the
Criminal Law Amendment Act
as
a second or third offender if regard is had to the provisions of
the
Criminal Law Amendment Act.
[4
] The learned judge in
Cetwayo
did not consider the effect
of such a single combined charge when a person is charged with either
robbery or murder or any offence
for which a minimum sentence has
been prescribed. He dealt with charges of housebreaking with intent
to steal and theft. There
is no prescribed minimum sentence for
theft. I am of the view, that such a single combined charge is no
longer appropriate and
that there is good reason to have the charges
formulated separately. As an example, I refer to the minimum sentence
for ‘
a second offender of such offence (part ɪɪ of
Schedule 2) (
of the
Criminal Law Amendment Act
>) is a period of
not less than 20 years.
’ Part ɪɪ of Schedule 2
refers to robbery and housebreaking with intent to rob is not
referred at all in Part ɪɪ
of Schedule 2. As indicated
earlier, it appears as a substantive offence in
Part IV
of the
Schedule.
[5] It is therefore trite that the crime of housebreaking with intent
to commit a crime i.e. theft is a substantive distinct crime
to the
theft itself. See
Cetwayo
above.
[6] There now appears good reason why the offence of housebreaking
with intent to commit a crime and the crime should be charged
as
separate offences and not as a single offence in the case of robbery,
murder and rape and any offence for which a minimum sentence
is
prescribed. In matters where the charges involve housebreaking with
the intent to rob and robbery a first offender for robbery
would
attract a minimum sentence of 15 years imprisonment whilst the
housebreaking charge would attract a different, albeit lesser,
minimum sentence of 5 years imprisonment. The same would apply to
housebreaking with intent to murder or rape. I leave aside the
fact
that lesser sentences may be imposed when substantial and compelling
circumstances allow for lesser sentences than the prescribed
minimum
sentences to be imposed.
[7] A charge of housebreaking with intent to rob and robbery also
read with
s 51
of the
Criminal Law Amendment Act would
, in my view,
be technically ineffective as the
Criminal Law Amendment Act wo
uld
apply differently to a charge of housebreaking with whatever further
allegations may be made in the charge sheet. It is thus
highly
relevant whether an accused is found guilty of robbery or murder or
rape and also of housebreaking with intent to commit
a crime, when
regard is had to the
Criminal Law Amendment Act.
[8
] It would consequently be desirable that, because of the
provisions of the
Criminal Law Amendment Act, charges
be framed in
such a manner in order to separate the allegations of housebreaking
with intent to commit an offence from substantive
charges such as
robbery and all other charges where a minimum sentence is prescribed
upon conviction.
[9] In the matter before me the third count is a charge of
housebreaking with intent to rob and robbery and as there is no
separate
count of robbery. In the words of Grosskopf J (as he then
was) :
‘
the accused was, not,
however charged with theft or attempted theft, and in the
circumstances the accused cannot now in addition,
be convicted of
either theft or attempted theft as suggested by the magistrate.
’
See
S v M
1989 (4) SA 718
(T) at 720 G where Grosskopf J was
quoted with approval. I deal with the wording of the present count 3
hereunder.
[10] In this matter, after the accused pleaded guilty to the three
counts, his legal representative handed in a statement wherein
the
accused admitted all the elements of the three counts. The admissions
followed the wording of the charges. Thereafter, a further
short
description of the actions of the accused is set out. Having been
satisfied that the accused pleaded guilty to the three
counts, the
State accepted the plea and I found the accused guilty on all three
counts and the question of sentence stood over.
[11] When evidence was lead for purposes of sentence the accused also
gave evidence. He said that he accompanied two others to
the house of
the deceased in order to go and break in to the house and remove
articles therefrom. The three of them removed roof
tiles at the house
and waited in the ceiling for several hours when one of the three of
them mentioned that he was almost certain
that the owner of the house
had left. The three of them then went into the house from the
ceiling. The accused went to search in
some drawers when he realised
that the owner of the house had not left but was still there. The two
other persons followed her
and the accused heard screams and
thereafter saw the other two housebreakers dragging her into a room.
He carried on stealing items
from the house. I need go no further
regarding the facts for purposes of the matter at this stage. I had
some doubt as to the
intent with which the accused acted when
breaking and entering the premises and was of the view that he may
have made an incorrect
admission regarding the intent with which he
acted that day as his evidence was that they intended stealing items
from the house.
Milton
Criminal Law and Procedure
Vol II 3ed
(1996) 806 par 5 seems to favour the fact that the intent to commit
an offence must be present when both the breaking
and entering are
effected. He relies for this view on
R v Laforte
1922 CPD 487
at 500;
R v Willy Ovamboland
1931 SWA 11;
R v Andries
1958 (2) SA 669
(E) at 671. Save for
S v Andries,
I do not
think that the cases referred to clearly support such a view or in
any event do not supply authority for such a view. On
the basis that
the law is correctly set out by Milton, I asked counsel to address me
on the issue and whether I should apply the
provisions of s 113 of
the Criminal Procedure Act 51 of 1977 (The
Criminal Procedure Act) in
order to record a plea of not guilty on count 3 as the accused may
have incorrectly admitted the fact that he had the intention
to rob.
[12] The evidence of the accused shows that he accompanied the other
two persons with the initial intention to steal goods in the
house
and not to commit robbery. However, once the accused was aware that
the deceased was overpowered in order to facilitate the
theft, which
he carried on executing after she had been overpowered by the other
two co-perpetrators, the element of force which
is necessary for a
charge of robbery, was present. The accused admitted that he ‘
acted
together with common intent’
with the other two persons. He
consequently had a common purpose with them to overpower persons who
came in their way and in fact
did associate himself with the use of
force to continue with the theft of goods. Yet, the evidence is that
the accused went to
the house of the deceased in order to steal. The
question of whether a person can change his or her intent whilst in
the process
of executing his or intention to steal or whether
dolus
eventualis
would be sufficient for a conviction of housebreaking
with intent to rob and robbery are questions that I do not have to
answer.
[13] Ms Nguni argued that the allegations contained in the charge
sheet are wide enough to encompass both a count of housebreaking
with
intent to rob and a substantive charge of robbery. Robbery consists
of
‘
the
violent removal and appropriation of movable corporeal property
belonging to another’
.
See CR Snyman
Criminal
Law
at
p30.
These allegations are clearly set out in count
three and Mr Nel conceded as much. Ms Nguni therefore argued that the
accused was
correctly found guilty of housebreaking with intent to
rob and robbery with aggravating circumstances rather that
housebreaking
with intent to rob only. As the charge which was read
out to the accused covers a substantive charge of robbery, Mr Nel was
unable
to advance reasons why the accused should not have been found
guilty of housebreaking with intent to rob and robbery with
aggravating
circumstances.
[14] CR Snyman
supra
,
p 550 says:
As
‘
housebreaking
with intent to steal” is a crime in its own right, X is charged
with two crimes if he is charged with “housebreaking
with
intent to steal and theft”. However, it is still
uncertain whether a conviction of “housebreaking with intent
to
steal and theft” is a conviction of a single crime or of two
crimes.
In
practice this is unimportant, for even if one holds that two crimes
have been committed they are treated as one crime
for
the purposes of punishment
.
It is submitted that the better view is that two crimes have been
committed’.
(Foot notes omitted). (My underlining).
[15] This approach finds support
in
S v Maunye and
others
2002 (1) SACR
266
T. At 277 F – 278 B Stegmann J, in a full bench decision,
said
‘
An
incident of housebreaking with intent to steal and theft, committed
with a single intention, is to be regarded as essentially
the crime
of theft, with housebreaking as a factor that tends to aggravate the
seriousness of the offence and therfor the severity
of the sentence’.
Also see
S
v Nell
2009 (2) SACR
37
C.
[16] In S v Kulati
2002 (2) SACR 406
E, a full bench said:
‘
The actual offence for
the purpose of which the housebreaking was committed if such crime be
committed is also a separate offence
but in practice is charged as
one offence with the crime of housebreaking with intent to commit
that offence. In practice the two
crimes are in effect committed
during a single incident and therefore charged as one single offence
and a single punishment is
imposed. That, however, in my view, does
not do away with the fact that in fact two separate crimes were
committed. In R v
O'Connell en 'n Ander
1960 (3) SA 272
(O) Potgieter
J, as he then was, said the following at 272H:
“
Waar
'n persoon derhalwe aangekla word van huisbraak met die doel om te
steel en diefstal word hy in werklikheid aangekla van twee
substantiewe misdade.”'
[17] In all the circumstances I am satisfied that count 3 encompasses
a substantive charge of robbery and that the admissions made
by the
accused were sufficient to satisfy the conviction on that count.
When the composite count of housebreaking with intent
to rob and
robbery is looked at objectively, the effect of such a conviction
would be that an accused is effectively found guilty
of both
housebreaking with intent to rob and of robbery as the two charges
were put as one and because of a practice that developed
over the
years that ‘…
they are in practice charged and
punished as one offence
’ – see
Cetwayo, supra
.
I am consequently of the view that the minimum sentence prescribed
for robbery would be applicable in this matter. Although
charged as
one offence, the sentence to be imposed on the accused is regulated
by the minimum sentence prescribed for robbery as
he has been
convicted of robbery.
[18] I am, however, of the view that the better practice would be
that an accused person should be separately charged with the
offence
of housebreaking with the intent to commit a crime and the crime
itself for the reasons set out hereinbefore. Should an
accused be
convicted of a number of offences, the cumulative effect of the
sentences imposed is a factor which courts have dealt
with for many
years and, no doubt, will continue to do.
[19] In
Cetwayo
the court combined the charges of
housebreaking with intent to steal and the charges of theft to form
composite charges of housebreaking
with intent to steal and theft and
sentenced the accused to 18 months imprisonment on each of such
composite count (part of which
sentence was suspended). However, when
the court in
Cetwayo
gave the judgment,
Part IV
of Schedule 2
did not contain housebreaking with intent to commit an offence.
Part
IV
was amended in 2007 to its present form to incorporate
housebreaking with intent to commit an offence and which is
punishable with
a minimum sentence of 5 years imprisonment. The
amended
Criminal Law Amendment Act indeed
has far reaching
consequences regarding the passing of sentence regarding the
different offences referred to therein. In my view,
it would be
wrong to combine different offences for which different minimum
sentences are prescribed into one charge, since the
material
amendment of the
Criminal Law Amendment Act in
2007.
[20] Having dealt with the aforesaid issues and before judgment, the
State applied to lead further evidence. Mr Nel objected but
after
argument, I allowed the request to lead further evidence and said
that I would give my reasons for it in due course. The
following
paragraphs embody those reasons.
[21] During his evidence on sentence the accused gave a version that
he was the one to steal things while his co-perpetrators were
the
ones that killed the deceased. Ms Nguni did cross examine the accused
when he testified but not on an important fact i.e. that
the knife
found at his house contained the Deoxyribonucleic Acid) (DNA) of the
deceased. This evidence, she argued would controvert
the version of
the accused that the he did not carry the knife that night, which
aspect is relevant to sentence. In
S v Felthun
1999 (1) SACR
481
(SCA), the Supreme Court of Appeal held that test whether to
allow the State to reopen its case depends on several factors.
Firstly,
a trial court has discretion to allow a party to reopen his
or her case and to lead evidence at any time up to judgment. In this
case, the State wished to lead evidence on sentence which was not at
hand at that time and the court had not yet pronounced on
the
sentence to be imposed. A court should however, exercise the
discretion judicially upon a consideration of all the facts of
the
case and having regard to considerations mentioned in cases and
applying them as guidelines and not inflexible rules. At p486
C -
487 H Vivier, JA said:
‘
That a trial Court has a general discretion in
both civil and criminal cases to allow a party who has closed his
case to reopen
it and to lead evidence at any time up to judgment is
beyond doubt. The proper approach is that the Court's discretion
should be
exercised judicially upon a consideration of all the facts
of each particular case, having due regard to the considerations
mentioned
in the cases and applying them as guidelines and not
as inflexible rules. In Mkwanazi v Van der Merwe and Another
1970 (1)
SA 609
(A) Holmes JA stated the correct approach thus at 616B - D:
“
It
is inappropriate for judicial decisions to lay down immutable
conditions which have to be satisfied before the relief sought
can be granted. Over the years the Courts have indicated certain
guiding considerations or factors, but they must not be regarded
as
inflexible requirements, or as being individually decisive. Some are
more cogent than others; but they should all be weighed
in the
scales, the pros against the cons.”
Mkwanazi's case was concerned with Rule 28(11) of the
Magistrate's Court Act 32 of 1944 but, as Holmes JA pointed out at
616D in
his majority judgment, the Supreme Court has, inherently,
much the same discretion to allow evidence before judgment. The
majority
of this Court held on the facts of that case that fresh
evidence should have been admitted by the magistrate after both sides
had
closed their cases even though there was no satisfactory
explanation as to why the evidence had not been led before. The
omission
to lead the evidence was, however, not deliberate and there
was no prejudice to the other side.
In Hladhla v President Insurance Co Ltd
1965 (1) SA
614
(A) this Court held that new evidence in that case should have
been allowed after the argument stage. In his judgment (at 621E -
G)
Van Blerk JA referred to the danger mentioned by Wigmore para
1878 that to make a general practice of introducing new evidence
when, after argument, it is found where the shoe pinches, may lead to
perjury. Van Blerk JA then pointed out, however, that Wigmore
in the
same passage goes on to say that:
"
Nevertheless,
situations might easily arise in which an honest purpose may justly
be served, without unfair disadvantage, by
admitting evidence at
this stage; and it has always been conceded that the trial Court's
discretion should not be hampered by an
inflexible rule."
With regard to the test to be applied to an
application to reopen see further: Oosthuizen v Stanley
1938 AD
322
at 33 and Barclays Western Bank Ltd v Gunas and Another
1981 (3)
SA 91
(N) at 95C-96H.
The considerations mentioned by the Courts include
the following: the reason why the evidence was not led
timeously, the degree
of materiality of the evidence, the possibility
that it may have been shaped to relieve the pinch of the shoe, the
possible prejudice
to the other side, including such factors as the
fact that a witness who could testify in rebuttal may no longer be
available,
the stage which the proceedings have reached and the
general need for finality.
……
.
In the light of the above decisions there is no room
for the absolute rule contended for by counsel for the appellant
namely that
the trial Court's discretion to admit evidence for the
State after the close of the defence case should be limited to where
new
matter is introduced which the State could not foresee. An
inflexible rule of this kind hampers the trial Judge's
discretion
and cannot be supported. In each case it is a matter for
the trial Judge's discretion whether, on the facts of that case and
applying
as guidelines the considerations mentioned in the cases, the
new evidence could be allowed without injustice to the accused.
With regard to the question of possible prejudice
counsel for the appellant submitted that an accused is inevitably
prejudiced when
the State case is reopened since he may then be
compelled to testify to answer the new evidence. I do not agree. An
accused is
never compelled to testify. His right to remain silent
remains unaffected. In the present case the defence was given the
opportunity
to lead further evidence but the appellant was not
compelled to testify. Counsel for the appellant further
submitted that
in a trial of more than one accused, prejudice to any
accused will inevitably result if a co-accused is recalled by the
court under
s 167 of the Act, as happened in the present case. Again
I am unable to agree. Apart from the fact that his co-accused was
recalled
by the trial Court at the request of the appellant's
counsel so that the appellant could not have been prejudiced, his
right
to remain silent was unaffected by the recall of his
co-accused. He himself elected to testify again’.
[22] In this matter it is not a question that the State is feeling
the proverbial pinch of the shoe. The evidence became available
to it
after the court adjourned and before recommencing on 24 May 2013. The
expert report would have been done without had it not
become
available due to the slow process with which the State machinery
works. But it became available at a very late stage. Secondly,
the
nature of the evidence has, in my view, a high degree of materiality.
Criminal courts are not to be used to play games and
if material
evidence becomes available, it should be allowed to be produced in
the absence of prejudice to the accused. In this
case there was no
prejudice to the accused as he was afforded the opportunity to give
evidence regarding the new material, if he
so wished.
[23] The State and the accused then, by agreement, handed in an
affidavit of Regina Janse van Rensburg in terms of
section 212
of the
Criminal Procedure Act. This
, according to Ms Nguni, proved that the
blood found on the knife of the accused, was the blood of the
deceased as the deponent
to the affidavit compared a sample of blood
of the deceased with the blood found on the knife. The DNA result of
the blood on
the knife was found to match the DNA of the sample of
the blood taken from the deceased.
[24] At the resumed hearing the State called several witnesses to
show that the accused was found in possession of the knife which
contained blood of the deceased. The accused gave no explanation and
indeed said top a police official the he used the knife to
eat with.
The very possession of the knife containing blood of the deceased is,
in my view, a factor with serious consequences
for the accused. It
indicates that the accused was the person who possessed the knife
which was used to kill the deceased and his
version in which he
places the blame on others, is not true.
[25] That brings me to the question of the sentence that is to be
imposed on the accused. His evidence regarding his participation
in
the murder has been shown to be lacking and indeed false.
[26] The accused is 26 years of age and the father of a four month
old girl. He has a grade 12 which shows that he does have the
necessary common sense to understand fully what his actions entailed.
Although he blamed his co-perpetrators for the incident,
it has been
shown that he partook actively and voluntarily in the offences. He
knew that the co-perpetrators had been to the house
of the deceased
before and said that they alleged that they did not have enough
manpower to remove the goods from the home of the
deceased. When one
has regard to the goods that the accused removed from the house,
there is little weight that one can give to
this allegation. When the
accused was woken to participate in the housebreaking, he willingly
participated, despite him having
a previous conviction for
housebreaking and being on parole at the time. His professed remorse
lacks credibility if regard is had
to his actions and continued false
version.
[27] Upon the arrest of the accused it appears that he admitted that
neighbours saw him leaving the premises of the deceased. He
also made
a statement to a magistrate in which he admitted his involvement. The
knife, used in the murder of the deceased was found
at his home. He
accompanied the police to point out the scene of crime. He had no
escape from the charges. It is with these facts
in mind that I have
to weigh up the remorse that the accused said he felt regarding the
incident. He made a phone call with the
cellular phone of the
deceased, which led to his arrest. The accused’s version of his
participation remained untrue to the
end. He was the person who had
the knife that caused the deceased’s death. I am of the view
that his so-called remorse is
nothing but an attempt to escape the
full force of the law for his heinous actions. He unnecessarily
killed an upstanding member
of the community who worked hard to
further not only her and her family’s careers and subsistence;
she assisted others, including
the family of the accused, to earn
additional income. He thereby left a young child without a caring
mother and a devastated family.
[28] Having listened to the evidence, there is very little to be said
in favour of the accused. Whilst keeping his personal circumstances
in mind, I am mindful of the atrocity perpetrated by the accused. He
could have left the scene without the unnecessary killing
of an
innocent human being in the sanctity of her home.
[29] The legislator has, as the accused was advised at the outset of
this trial, provided for minimum sentences for the offences
of murder
and robbery with aggravating circumstances such as when a knife is
used. In S v
Malgas
2001 (1) SACR 469
(SCA), the Supreme Court
of Appeal said at para 8 and 9
that:
‘
In short, the
legislature aimed at ensuring a severe, standardised, and consistent
response from the courts to the commission of
such crimes unless
there were, and could be seen to be, truly convincing reasons for a
different response.
… The
specified sentences are not to be departed to from lightly and for
flimsy reasons which could not withstand scrutiny.
Speculative
hypotheses favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts
as to the efficacy of
the policy implicit in the amending legislation,
and
like considerations were equally obviously not intended to qualify as
substantial and compelling circumstances. Nor were marginal
differences in the personal circumstances or degrees of participation
of co-offenders which, but for the provisions, might have
justified
differentiating between them’
.
[30] I can find no substantial and compelling circumstances to
deviate from the sentence prescribed by the legislator.
[31] Having regard to all the aforegoing, I am of then view that the
following sentence should be imposed:
Count 1: Murder: Life imprisonment.
Count 2: Attempted murder: 8 years imprisonment.
Count 3: Housebreaking with intent to rob and robbery with
aggravating circumstances: 15 years’ imprisonment.
The accused is declared unfit to possess a firearm.
W L
WEPENER
JUDGE OF THE HIGH COURT
COUNSEL FOR THE COMPLAINANT:
Adv Mnguni
COUNSEL FOR THE ACCUSED:
Adv Nel
DATE/S
OF
HEARING:
13,
20, 24, 30 May 2013
DATE
OF JUDGMENT:
30
May 2013