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[2015] ZAGPJHC 220
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S v Khumalo and Another (227/2013) [2015] ZAGPJHC 220 (4 May 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNEBURG)
CASE NUMBER: 227/2013
DATE: 04 MAY 2015
In the matter of
THE STATE
V
DUMISANI COLLEN
KHUMALO
............................................................................
ACCUSED
ONE
SIMPHIWE JOSEPH
SIMELANE
...........................................................................
ACCUSED
TWO
JUDGMENT
DOSIO AJ:
SENTENCE
[1] The accused have pleaded guilty to
all four counts. Count one is the crime of robbery with aggravating
circumstances as intended
in section 1 of Act 51 of 1977 read with
the provisions of section 51(2) and schedule 2 of the Criminal law
Amendment Act 105 of
1997 as amended (“Criminal Law Amendment
Act”). Count two is the crime of murder read with the
provisions of section
51(1) and schedule 2 of the Criminal Law
Amendment Act. Count three is unlawful possession of unlicensed
firearms, which is a contravention
of section 3 of the Firearms
Control Act 60 of 2000 (“Firearm Control Act”). Count
four is unlawful possession of ammunition,
which is a contravention
of section 90 of the Firearm Control Act.
[2] For purposes of sentence this court
has taken into consideration the accused’s personal
circumstances, the seriousness
of the offences and the interests of
the community. The court has borne in mind the main purposes of
sentence which is deterrence,
retribution, reformation and
prevention.
[3] The personal circumstances of the
accused are;
Accused one
Accused one was born on the 31st of
July 1977 and is thirty-seven years and nine months old. He was
raised by his single mother
and was the only child at home. He left
school in Standard 6/Grade 8. He was employed at the mine as a
planter and he was earning
R2300 per month. He was retrenched in
2013. He was the bread winner at home providing for his children and
his mother. He is single
and unmarried. He has two children, aged
eleven (11) and eight (8) years respectively. He was arrested on the
17th of October 2013.
He has been in prison for one year and six
months.
Accused two
Accused two is twenty-eight (28) years
old. He is the first born, followed by three younger brothers. He
grew up under the care
of his mother as his father passed away when
he was ten (10) years old. He passed grade ten (10) at Kgaiso High
School in 2003.
He left school because his mother could not pay for
his studies. He is unmarried but has two children aged ten (10) years
and four
(4) years old respectively. The last born stays with his
mother. The accused was employed at Piements as a freezer packer. He
was
earning R2400 per month. He was the sole provider for his family
as his mother was unemployed. He is a first offender.
[4] In respect to the seriousness of
the offences this court would like to state as follows:
[5] In respect to count
The vehicle of the deceased Abram Moyo
was parked in a veld in Slovoville. The time was 12h00. Accused one
went to the passenger’s
side of the vehicle and accused two
went to the driver’s side of the vehicle. Accused one pointed a
loaded firearm towards
the complainant Sitheni Betty and demanded
money and valuables. Accused two then pulled off her weddings rings.
It is clear accused
two was the main perpetrator in the commission of
this robbery and that accused two acted as an accomplice. It is clear
this robbery
was planned in that shortly after robbing the
complainant Sitheni Betty, the accused sold the rings for financial
gain. The crime
was driven by greed and not need. It was executed in
an organised manner.
[6] This country has witnessed an
ever-increasing wave of violence. Robbery with aggravating
circumstances is ever-prevalent. Innocent
and defenceless victims
continue to fall prey to these types of offences. Most people live
with the fear that sooner or later they
will become a victim of an
armed robbery.
[7] In respect to count 2
Before accused two reached the driver’s
door the deceased jumped out. Accused one ran after him and fired
eight (8) shots
at the deceased. Both accused then fled the scene. It
is clear accused one was the main perpetrator and that accused two
acted
as an accomplice. It is clear that accused one acted in
flagrant disregard of the sanctity of the deceased’s life as
the
deceased was trying to run away to save himself when accused one
killed him. They went into action with loaded firearms and shot
a man
who was running away. Six bullets penetrated his body. The cause of
death was multiple gunshot wounds. At the time of the
shooting the
deceased was no longer an obstruction to either accused and posed no
threat to them. The deceased was an innocent
and defenceless victim.
[8] Murder is the most serious of
crimes. It not only ended the deceased’s life, but it left
hardship for the family members
left behind. The wife of the
deceased, Mrs Sindiswo Moyo, who is a Captain in the South African
Police testified and stated that
she and the deceased had two
children. The eldest one is a police officer herself and at the time
this incident she was in hospital
and on hearing of the death of her
father she developed chronic depression. This has affected the work
of her daughter. She was
previously a detective but now has been
deployed as a data typist as her ability to do field and
investigative work for the police
has been seriously impaired. The
second born of the deceased has also been affected in that after
identifying her father’s
body at the morgue, her school work
has deteriorated. The deceased who was unemployed at the time used to
do the cooking on occasion
and would always take his daughter to
dancing classes. Their grand-daughter also severally misses the
deceased who she referred
to as “Papa”. The deceased was
a friend and good brother-in-law to her family. Although they have
all been for counselling,
it has not helped. It is clear this family
was and still are affected by his untimely death. Not only has this
offence impacted
on the emotions of this family, it has also impacted
on the ability of the wife of the deceased to do her work. Both the
wife of
the deceased and her daughter were employed in crime
prevention and field work in similar offences and both are now
severally affected
in doing this type of work. This impacts directly
on the community who needs people of their calibre to do crime
prevention. Without
such law enforcers in our community, the country
suffers.
[9] In respect to count 3
The firearm that accused one had in his
possession was a 9 mm parabellum Vector model Z88 which is a
semi-automatic pistol. Accused
two was found in possession of a 9mm
Star Pistol.
[10] On a more frequent basis, crimes
in this country are committed using illegal firearms. In fact the
proliferation of illegal
firearms throughout the country has
contributed to the high incidents of violent crime. The frequent use
of illegal firearms in
the commission of violent offences has
contributed to the fear that members of the community live with. They
fear driving and stopping
their cars in remote places as they may
become victims of crime. The behaviour of the accused and others like
them, impacts negatively
on the quality of freedom of all living in
South Africa.
The possession of unlicensed firearms
continues and it is important that this court send a clear message to
potential offenders
that this conduct will not be tolerated by the
courts.
[11] In respect to count 4
What makes this offence serious is that
both accused were in possession of loaded firearms which were used
during the commission
of both offences.
Accused one was in possession of 8 live
rounds at the time of the commission of the offence. He fired all
eight rounds at the scene.
Accused two was in possession of one (1)
round of ammunition.
[12] This court has differentiated
between main perpetrators and accomplices in its judgment, however,
seen in the light that both
accused were acting with a common purpose
to rob and kill, this court finds no reason to differentiate between
the sentences they
will both receive. It is clear they went out in
search of someone to rob. The fact they were both armed with loaded
firearms suggests
to this court they were ready to use them and kill
if necessary.
[13] In respect to the interests of the
community, this court has taken note of the fact that the community
observes the sentences
that courts impose and the community expect
that the criminal law be enforced and that offenders be punished. The
community must
receive some recognition in the sentences the courts
impose, otherwise the community will take the law into their own
hands. If
a proper sentence is imposed it may deter others from
committing these crimes. Due to the fact that murder and armed
robbery have
reached high levels, the community craves the assistance
of the courts.
[14] The robbery on count one is one as
intended in terms of section 1 of the Criminal Procedure Act. The
provisions of the Criminal
Law Amendment Act with specific reference
to section 51 (2) dictates that notwithstanding any other law but
subject to subsection
(3) and (6), an accused who has been convicted
of a Part two of Schedule 2 offence, which includes robbery with
aggravating circumstances,
shall in the case of a first offender be
sentenced to a period of imprisonment for a period of not less than
15 years, and in respect
of a second offender to imprisonment for a
period not less than 20 years.
[15] The murder on count two was
planned, and it was committed by a group of persons acting in the
execution or furtherance of a
common purpose. In addition, the death
of the deceased was caused by the accused committing the offence of
robbery with aggravating
circumstances. The degree and culpability of
the accused is extremely high, in that three scenarios that the
legislature deems
as serious were prevalent in the conduct of both
accused. The provisions of the Criminal Law Amendment Act with
specific reference
to section 51 (1) dictates that if an accused has
been convicted of an offence referred to in part 1 of schedule 2, he
shall be
sentenced to life imprisonment.
[16] In respect to count three, the
firearm in accused one’s possession is a semi-automatic
firearm. It accordingly falls
within the ambit of a part two of
schedule two offence. The Criminal law Amendment Act dictates that a
first offender shall be
sentenced to fifteen (15) years imprisonment,
and in respect to a second offender to imprisonment of twenty (20)
years and in respect
to a third offender to imprisonment for a period
not less than twenty (25) years. There is no evidence placed before
this court
that the previous conviction of accused one in 2005 was
for possession of a semi-automatic firearm. Accordingly, for purposes
of
this sentence accused one will be sentenced in respect to count
three (3) as if he is a first offender of being in possession of
a
semi-automatic firearm.
[17] In respect to count three, there
is no evidence that the firearm found in accused two’s
possession was a semi-automatic
firearm, accordingly he will be
sentenced in terms of the provisions of the
Firearms Control Act,
which
dictates that if an accused is convicted of a contravention of
section 3
he may be sentenced to fifteen (15) years imprisonment.
[18] In respect to count four the
Firearm Control Act dictates that if an accused is convicted of a
contravention of section 90,
he may be sentenced to fifteen (15)
years imprisonment.
[19] Section 51 (3) of the Criminal Law
Amendment Act states that if any court referred to in subsection (1)
or (2) is satisfied
that substantial and compelling circumstances
exist which justify the imposition of a lesser sentence than the
sentence prescribed
in these subsections, it shall enter those
circumstances on the record of the proceedings and must thereupon
impose such lesser
sentence.
[20] As stated by the learned Marais JA
in the case of S v Malgas
2001 (1) SACR 469
SCA, paragraph I;
“if the sentencing court on
consideration of the circumstances of the particular case is
satisfied that they render the prescribed
sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice
would be done by imposing that
sentence, it is entitled to impose a lesser sentence.”
[21] Counsel for accused one requested
this court to take into consideration that the accused has pleaded
guilty and has shown signs
of remorse. Counsel submitted that he also
co-operated with the police during the investigation and because he
is still young he
can be rehabilitated.
[22] Counsel for accused two requested
this court to consider the following as substantial and compelling
circumstances, namely;
i. That the accused is a first offender
and showed remorse for his actions in pleading guilty. He grew up
without a father figure
and was the sole provider of his family.
ii. He is twenty-eight (28) years old
and is a candidate for rehabilitation.
[23] The court has notwithstanding the
application of the prescribed minimum sentences, considered other
sentencing options. This
court does not find that a fine, a suspended
sentence or correctional supervision is appropriate in these
circumstances.
[24] This court cannot only consider
the accused’s personal circumstances, but must also consider
the interests of the community
as well as prevention and deterrence.
To focus on the well-being of the accused to the detriment of the
interests of the community
would result in a distorted and warped
sentence. The accused are a danger to the community.
[25] Accused one has many previous
convictions. In 1992 he was found guilty of theft and sentenced to 5
cuts with a light cane.
In 1993 he was convicted of theft and
sentenced to 7 cuts with a light cane. In 1994 he was convicted of
robbery and sentenced
to 8 years imprisonment. In 2000 he was
convicted of theft and sentenced to 30 months direct imprisonment. In
2005 he was convicted
of possession of a firearm without a licence
and sentenced to 5 years imprisonment of which two years were
suspended for a period
5 years on condition the accused was not again
found guilty of a contravention of
section 3
of the
Firearms Control
Act 60 of 2000
. In 2012 he was convicted of having in his possession
dependence producing drugs and was fined R40. There is evidence
before this
court that the robbery committed in 1994 was robbery of a
motor vehicle using a knife. However, the SAP 69 does not reflect
this
offence as amounting to robbery with aggravating circumstances
as envisaged in Part two of schedule 2.
Accordingly this court will deal with
accused one as if he is a first offender of robbery with aggravating
circumstances.
[26] Although accused one and two have
pleaded guilty, Counsel for the State submitted the accused have not
shown remorse. Counsel
submitted that they both evaded arrest and
were prepared to proceed on trial. Captain Ndwandwe who was called by
the State in aggravation
of sentence testified that although the
offence was committed on the 27th of May 2013 he only arrested
accused one on the 17th
of October 2013. It is through the engagement
of informers that accused one was traced. It is due to circumstantial
evidence of
a palm print found in the car of the deceased that the
police were able to state the palm print belonged to accused one.
Counsel
for the State argued that there was a strong case against the
accused, as they would have had difficulty to dispute the confessions
and the pointing out as they were properly carried out in accordance
with the
Criminal Procedure Act 51 of 1977
.
[27] In respect to their respective
pleas of guilty, Counsel for the State argues that both accused had
two years to expedite this
case and plead guilty. Only on the day of
the commencement of the trial did they agree to plead guilty. If they
truly felt sorry
for what they had done, they would have pleaded
guilty sooner. Had they shown genuine remorse, they could have
intimated this to
the family sooner. Counsel for the State argued
that to say on the day of sentence that the accused feel sorry for
what they have
done, is not sufficient.
[28] Counsel for the State argued that
the frequency in which these heinous crimes are committed, is
reflective of the fact that
sentences imposed by courts are not
having the desired effect. Counsel requested this court to be
cautious in departing from the
prescribed sentence of life
imprisonment in respect to count two and fifteen (15) years
imprisonment in respect to count one. Counsel
argued the prescribed
sentences on both counts are suitable and appropriate and will also
give effect to the element of retribution.
[29] In the case of S v Matyityi
2010
ZASCA 127
the learned Ponnan JA referred to the case of S v Seegers
1970 (2) SA 506
(A) where it was stated that; in order for the
remorse to be a valid consideration, the penitence must be sincere
and the accused
must take the court fully into his or her confidence.
In the case of Matyityi supra, at paragraph [13], the learned Ponnan
JA stated;
“Until and unless that happens
the genuineness of the contrition alleged to exist cannot be
determined. After all, before
a court can find that an accused person
is genuinely remorseful, it needs to have a proper appreciation of
inter alia: what motivated
the accused to commit the deed; what has
since provoked his change of heart; and whether he or she does indeed
have a true appreciation
of the consequences of those actions.”
[30] Apart from the plea of guilty,
there is no explanation to this court what the circumstances were why
accused one and two attacked
these innocent members of the public.
Although they have both stated to their respective counsel that they
are sorry for what has
happened, there is no indication what has
since provoked their change of heart to plead guilty and say they are
sorry. Counsel
for accused one stated on instructions from accused
one that “If he had a way of reversing the situation he would
do so”.
This is something accused one should have thought of on
the day of the killing. Had he shot once and said he was sorry, that
may
have had some recognizable effect on the sentence, however, after
having emptied six bullets into the deceased and then say he is
sorry
is negligible. The same applies to accused two who states that he
“regrets what happened on that day. It happened haphazardly”.
This court disagrees. Both accused had a mission to rob and kill if
necessary. This they executed with precision and planning.
[31] In the case of S v Matyityi supra
the facts were quite similar to the facts before this court, in that
the complainants in
that matter had also stopped their car in a
remote spot when they were attacked by the accused. They were robbed
and the one complainant
was raped whereas her boyfriend was murdered
by the three accused. The deceased was stabbed in his back while he
was trying to
flee from the accused. One of the accused, namely
Matyityi, pleaded guilty and was sentenced to 25 years imprisonment
on each of
the murder and rape charges and in respect to the robbery
charges to 13 years imprisonment. The sentences were ordered to run
concurrently.
He was sentenced to an effective term of 25 years
imprisonment. The Director of Public Prosecutions took this matter on
appeal
in terms of
section 316B
of the
Criminal Procedure Act and
the
Supreme Court of Appeal changed the 25 years imprisonment on the
murder count and rape count to two life imprisonments. The
accused
was also not a first offender as he had a previous conviction of
possession of unlicensed firearm. He was also 27 years
old.
[32] The fact that accused two (2) is
twenty-eight years old and is a first offender, is not a substantial
and compelling circumstance.
[33] The learned Poonen JA in of S v
Matyityi supra at paragraph [14] stated that;
“at the age of 27 the respondent
could hardly be described as a callow youth. At best for him his
chronological age was a
neutral factor”.
[34] The learned PoonenJA stated
further at paragraph [24];
“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…one
notices all to frequently a willingness on the part of sentencing
courts to deviate from the
minimum sentences prescribed by the
legislature for the flimsiest of reasons… 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…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 notion of fairness.”
[35] Accused one although he was
convicted previously of an unlawful possession of a firearm, and
robbery, and was sentenced to
long periods of imprisonment, he still
has not changed his ways. He has not rehabilitated. The terms of
imprisonment did not deter
him from once again obtaining an
unlicensed firearm and committing the crime of robbery and murder.
[36] In my view there are no
substantial and compelling circumstances present that warrant a
departure from the prescribed statutory
norm in respect to count one
or two.
[37] In respect to count one
irrespective of the fact that accused one watched as accused two
robbed the complainant Sitheni Betty,
and that he was an accomplice,
he still had the intention to rob both the occupants in the car.
[38] In respect to count two,
irrespective of the fact that accused two did not fire the shots that
killed the deceased, accused
two still reconciled himself with the
actions of accused one.
[39] In respect to count three, there
are no substantial and compelling circumstances why accused one
should not be sentenced to
the minimum sentence prescribed.
[40] Accused one has spent one and a
half years in prison. Accused two has been in custody for one year
and five (5) months.
[41] The cumulative effect of sentences
has been considered by this court. All these offences arise from the
single intent of robbing
the deceased and the complainant on count
one. Accordingly this court will order the concurrent running of
sentences as the offences
are inextricably linked in terms of
locality and time.
[42] This court has also been mindful
of the fact that accused two is a first offender and accordingly will
consider this when deciding
on the cumulative effect of the sentences
in respect to accused two.
[43] In the result the following order
is made:
Count 1
Accused one is sentenced to fifteen
(15) years imprisonment
Accused two is sentenced to fifteen
(15) years imprisonment
Count 2
Accused one is sentenced to life
imprisonment
Accused two is sentenced to life
imprisonment
Count 3
Accused one is sentenced to fifteen
(15) years imprisonment
Accused two is sentenced to ten (10)
years imprisonment
Count 4
Accused one is sentenced to five (5)
years imprisonment
Accused two is sentenced to three (3)
years imprisonment
[44] In terms of
section 280(2)
of the
Criminal Procedure Act, the
court orders that in respect to accused
one that the sentence of fifteen (15) years imprisonment imposed
on count one (1) , the fifteen (15)
years imprisonment imposed on count three (3) and the five (5) years
imprisonment imposed on
count four (4) will all run concurrently with
the life imprisonment imposed on count
two (2).
[45] In terms of
section 280(2)
of the
Criminal Procedure Act, the
court orders that in respect to accused
two that the sentence of fifteen (15) years imprisonment imposed on
count one (1) , the
ten (10) years imprisonment imposed on count
three (3) and three (3) years imprisonment imposed on count four (4)
will all run
concurrently with the life imprisonment imposed on count
two (2).
[46] In terms of
section 103
(1) (g) of
the
Firearms Control Act 60 of 2000
, accused two is declared unfit to
possess a firearm. Accused one was already declared unfit in 2005.
D DOSIO
ACTING JUDGE OF THE HIGH COURT
Appearances:
On behalf of the State Adv Naidoo
On behalf of the Accused one Adv
Potwana
On behalf of Accused two Adv Soko
Date Heard: 4 May 2015
Handed down Sentence: 4 May 2015