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[2013] ZAGPJHC 385
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S v Maswetsa (CC 28/2013) [2013] ZAGPJHC 385 (30 May 2013)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
CIRCUIT LOCAL
DIVISION OF THE WESTERN CIRCUIT COURT
CASE
NO CC 28/2013
DATE:
30 MAY 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 11th 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 would
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