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[2015] ZAGPJHC 219
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S v Mngenelwa (SS243/2015) [2015] ZAGPJHC 219 (15 May 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNEBURG)
CASE NUMBER: SS243/2015
DATE: 15 MAY 2015
In the matter of
THE STATE
V
THOKOZANI NKOSIYAKHANYA
MNGENELWA
.........................................................
ACCUSED
JUDGMENT
DOSIO AJ:
SENTENCE
[1] The accused has pleaded guilty to
both counts. Count one is the crime of murder read with the
provisions of section 51(1) and
schedule 2 of the
Criminal Law
Amendment Act 105 of 1997
“
Criminal Law Amendment Act&rdquo
;.
Count two 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 as
amended.
[2] For purposes of sentence this court
has taken into consideration the accused’s personal
circumstances, the seriousness
of the offence 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] As regards the events of this
fateful evening in respect to count 1 and the robbery on count two,
this court has merely the
accused’s explanation incorporated in
the guilty plea a s well as the accounts given by the accused to the
social welfare
officer Maggie Mathye who interviewed him in
preparation for her evidence during the sentence proceedings. This
report was handed
in by agreement and marked as exhibit “E”.
The accused has not testified under oath.
[4] The personal circumstances of the
accused are that he is originally from Tembisa at Madelakufa Squatter
Camp. The parents of
the accused met in Tembisa. The accused is the
only child born from this relationship however he has six half
brothers and sisters.
There are seven children in the family and the
accused is the sixth born. He was raised by his parents from birth
until eleven
years old. At the age of twelve years his parents
terminated their relationship and the accused was taken care of by
his mother
alone as a single parent with the assistance of his
half-sisters and half-brothers. When the accused grew up his parents
were employed
and provided the family with the basic needs. The
accused did enjoy his childhood and got support from his family
members. After
his parents separated he still contacted his
biological father and developed a close bond with him.
[5] The accused’s brother and the
Community Policing Forum informed the social welfare officer that
the accused developed
bad behaviour when he was young. He started
stealing at school, from the community members and the family. No one
in the community
suspected that he was using Nyaope.
[6] The accused is eighteen (18) years
old, is unmarried and has no dependants. Prior to his arrest he was
staying with his family
members at Madelakufa Squatter Camp in
Tembisa. The accused was staying in a shack with his family members.
The Madelakufa Squatter
Camp is characterized by a high rate of drug
abusers who drop out of school at early ages.
[7] The accused started school at
Khulasizwe Primary School in Tembisa where he completed grade 1 to
grade 7. He completed grade
8 to grade 9 at Masiqxakaze High School.
The accused was absent from school for some weeks and was behind at
school. He then dropped
out of school.
[8] The accused has never been employed
and is financially dependent on his half-brother. A cousin and a
half-brother informed the
social welfare officer that the family is
not getting along with him due to the substance he abuses. They both
stated that the
behaviour of the accused is not good. The
half-brother was called a few times to school as they complained
about his behaviour.
The Community Policing Forum in Madelakufa
Squatter camp were also involved in disciplining the accused. The
cousin of the accused
informed the social welfare officer that the
accused used to do well at school, but bunked classes. The crowd he
hanged out with
influenced him to abuse Nyaope. The accused prior to
his arrest was involved with friends older than him who were involved
in crime
activities to get money to buy Nyaope.
[9] The accused informed the social
welfare officer that he started smoking Nyaope at primary School and
that prior to his arrest
he was smoking Nyaope every day, more than
twice. When he smoked it he felt good and had energy. When he did not
smoke it he felt
pain in his stomach, was dizzy, restless, had
difficulty to sleep, and was weak and tired. The accused told the
social welfare
officer he committed the crime to get money to buy
Nyaope.
[10] According to the social welfare
officer the accused has taken responsibility for the allegations made
against him. The accused
informed the social welfare officer that he
feels embarrassed of his actions.
[11] The social welfare officer
submitted that peer pressure played a negative role on the accused
when the accused was eleven years
old. During the commission of the
crime the accused was seventeen years old. He murdered his aunt
after she refused him money
to buy drugs. He also robbed an innocent
woman, in respect to count two, to sell her cell phone in order to
buy Nyaope.
[12] The social welfare officer
believes that the environment in which the accused was living might
have influenced the accused
to commit crime. The Community Policing
Forum complained about how crime takes place in their community due
to Nyaope abusers.
The social welfare officer believes the drugs were
a contributing factor to the accused committing the crime. Due to the
fact that
the accused pleaded guilty to the crime the social welfare
officer is of the view that the accused is remorseful. The social
welfare
officer submitted that the accused is a danger to himself and
to the community and that he needs to be placed in a Drug and
Treatment
Center which will help him to rehabilitate. Due to the
accused being a minor the social welfare officer recommended that the
accused
be sentenced in terms of the
Child Justice Act 75 of 2008
,
“
Child Justice Act&rdquo
;. The social welfare officer did not
recommend imprisonment, citing the fact that in terms of
section 77
(1) (b) of the
Child Justice Act, imprisonment
must only be imposed
as a measure of last resort. The social welfare officer recommended
that the postponement or suspension of
the passing of sentence may be
a good option if it was made a condition that the accused attend
counselling and drug treatment
at the Dr Fabian and Florence Ribeiro
Treatment Centre in Cullinan.
[13] In respect to the seriousness of
the offences this court would like to state as follows:
In respect to count 1
The deceased was the aunt to the
accused. She lived on the same premises as him. On this day, although
the aunt insulted him, there
are no grounds of provocation on the
side of the deceased. She was an innocent victim, who due to drinking
too much became drunk
and was lying on the ground at the time the
accused and his friends came across her. The accused watched how
Lungisani Vumbi raped
the deceased, after which the accused took out
a knife and slit her throat. He watched as Lungisani Vumbi intervened
and slit the
throat of the deceased for a second time. He watched as
Boilundou Tunzi cut the deceased on her private part with a broken
beer
bottle. He then left the deceased at the scene. It is only after
some weeks that he informed his brother and sister about the
involvement
in the killing of the deceased. Although this accused
confessed, he did so after a very long time. The accused showed no
mercy
to his aunt during the commission of the offence. It almost
seems like it was a revenge attack for her not giving him money and
for insulting him. Although he was not charged for rape, he was still
an accomplice in respect to that crime and also did nothing
to
prevent Boilundou Tunzi from cutting the genitals of the deceased.
Instead of alerting the police he
remained quiet for some time.
[14] This is a savage attack on an
innocent victim with the aim of not only degrading her by raping her,
but also disfiguring her
by cutting her genitals. It is clear the
deceased did look after the accused as he shared a shack with her and
slept in her shack.
The deceased to a certain extend was caring for
the accused as she would pay for food when his own mother could not
buy food. The
deceased did not deserve this brutal attack inflicted
on her.
[15] It is clear that the death of the
deceased has had an impact on the children of the deceased. The
daughter of the deceased
after the incident has found it difficult to
sleep as the memories of the incident were vivid in her mind. The
deceased was also
their breadwinner. After the funeral of the
deceased the family has started to struggle financially. From the
report of Mrs Mathye
is appears that after the death of the deceased
her children are experiencing poverty as she deposited money every
month to support
her children.
[16] The brother of the deceased
informed Mrs Mathye that the family cannot forgive the accused as the
deceased was brutally killed.
[17] The post mortem report states that
there is external evidence of sharp trauma in the form of a
penetrating incised wound to
the neck and a post-mortem wound of the
genital and pubic area. There is also evidence of blunt trauma to the
face in the form
of lacerations and a loose tooth. The penetrating
incised wound to the anterior neck measured 12.2 cm long and 5.1 cm
wide. The
carotid arteries were severed bilaterally as well as the
jugular vein, the pharynx and oesophagus. The genitalia involved in
the
incised area included the prepuce, the right vestibule, the right
labia majora and the clitoris. The photos handed in showing the
area
where the deceased was found and the condition in which her body was
deformed by the attack are horrific, and confirms the
callousness of
the attack.
In respect to count 2
Whilst craving Nyaope and having no
money to pay for it, he attacked the complainant on count two by
stabbing her with his knife
and thereafter took her cell phone valued
at R1500-00 and money to the amount of R130.
[18] 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 who are
tempted to use drugs and commit similar crimes to be deterred in
committing
them.
[19] 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.
[20] The murder on count one was
planned and in addition it was committed by a group of persons acting
in the execution or furtherance
of a common purpose.
[21] 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 in this instance includes robbery with aggravating
circumstances, he 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.
[22] The State has accepted that the
accused was seventeen (17) years old at the time of the commission of
both offences. Accordingly
the minimum prescribed sentences are
applicable.
[23]
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.
[24] 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.”
[25] 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.
[26] In the case of S v Mabuza &
Others
2009 (2) SACR 435
(SCA) at paragraph 23, the learned Cachalia
JA stated that;
“…So while youthfulness
is, in the case of juveniles who have attained the age of 18, no
longer per se a substantial
and compelling factor justifying a
departure from the prescribed sentence, it often will be,
particularly when other factors are
present. A court cannot
therefore, lawfully discharge its sentencing function by disregarding
the youthfulness of an offender in
deciding on an appropriate
sentence, especially when imposing a sentence of life imprisonment,
for in doing so it would deny the
youthful offender the human dignity
to be considered capable of redemption.”
[27] In S v Matyityi
2011 (1) SACR 40
(SCA) at paragraph 14 the learned Ponnan JA stated in respect to
‘relative youthfulness’
“It is trite that a teenager is
prima facie to be regarded as immature and that the youthfulness of
an offender will invariably
be a mitigating factor, unless it appears
that the viciousness of his deeds rule out immaturity…the
offender’s immaturity,
lack of experience, indiscretion and
susceptibility to being influenced by others reduce his
blameworthiness. Thus whilst someone
under the age of 18 years is to
be regarded as naturally immature the same does not hold true for an
adult”.
[28] In the case of the Centre for
Child Law v Minister of Justice and Constitutional Development and
others
2009 (2) SACR 477
(CC) the learned Cameron J recognised that
youthful offenders may be in more need of protection and that their
crimes may stem
from immature judgment, however at paragraph [29] he
stated;
“…the children’s
rights provision itself envisages that child offenders may have to be
detained. The constitutional
injunction that “(a) child’s
best interests are of paramount importance in every matter concerning
the child”
does not preclude sending child offenders to jail”
[29] The facts of this matter are
similar to the facts of the matter before the learned Brand JA in the
matter of Du Plooy v The
State [2014] ZASCA 200 where the appellant
was sentenced to 12 years imprisonment on each of the two counts of
murder. The learned
Carelse J in the Circuit Local division of the
High Court for Delmas ordered that twelve years imprisonment on count
two would
in terms of section 280(2) of the Criminal Procedure Act
run co-currently with the twelve (12) imprisonment imposed on count
one.
The appeal court upheld the sentence imposed by the court a quo.
The appellant in that matter was seventeen (17) years old at the
time
of the commission of the offence and had spent the whole day drinking
and smoking crack with a friend. He started using cannabis,
crack
and heroin from the age of fourteen (14). After asking his parents
for money to buy more drugs an argument arose between
himself and his
parents over his drug abuse. This angered the accused. Accordingly he
hit both his parents with a cricket bat causing
fractures to their
skulls, and later in the company of his friend stabbed his mother and
father a further 20 times in their chest
and later slit the throat of
his father from ear to ear. The accused also pleaded guilty to both
counts of murder.
[30] The crime of murder and the
cutting of the genitals of the deceased, are heinous. A sentence of
life imprisonment is applicable
in these circumstances. The facts
before me are slightly different to the case of Du Plooy supra,
however, the accused is still
young enough to make rehabilitation a
real prospect even after a long period of imprisonment. In addition,
the accused made a confession,
pleaded guilty, and is willing to help
trace the other two remaining accused. It is also clear that no one
would have known of
this offence had the accused not elected to tell
anyone about it. Another factor which is clearly mitigatory is that
the accused
has a substance dependence problem, and that at the
crucial time of the commission of these offences was most probably
under the
influence of narcotic drugs. This court accepts that the
abhorrent nature of the crimes, must at least to some extent be
ascribed
to that influence. These circumstances, cumulatively
assessed, render a sentence of life imprisonment unjust. They qualify
as substantial
and compelling circumstances.
[31] Counsel for the Defence requested
this court to give the accused a second chance.
[32] Irrespective of these mitigating
factors, I come to the conclusion that the crimes which the accused
committed are so severe
that a long term of incarceration cannot be
avoided.
[33] Although the social worker Mrs
Mathye recommended that the accused be referred to a six week
rehabilitation program this court
does not regard this sentence as
appropriate. There are no guarantees that after such a short period
of time the accused will be
rehabilitated. Although the social
welfare officer has stated that a prison usually only has a substance
program and not a treatment
program for drugs, this court still finds
it inappropriate to send him to the rehabilitation centre suggested
by the social welfare
officer without a custodial sentence being
imposed.
[34] This court in addition to
considering the accused’s drug dependency, 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 in his current state is a danger to the
community. Failure to address
his drug dependency may illicit a
further attack on the community in order to address and satisfy his
drug dependency. If the prison
is only able to address the substance
component of the drug dependency then the court would order that he
also receive some treatment
in respect to the drug dependency.
[35] This court has attempted two weeks
prior to this matter being placed on today’s roll to ask the
State Counsel to obtain
the evidence of a correctional supervision
officer who could assist the court with the best programs available
pertaining to drug
users in prisons, however, the State Counsel for
the reasons placed on record was unable to do so. The State Counsel
did however
consult with a correctional supervision officer today who
advised him that the court can make an order that the accused be kept
at Boksburg prison with an order by the court that the accused be
referred to the rehabilitation centre referred to by the social
welfare officer.
[36] The accused has a previous
conviction of robbery committed on the 23rd of February 2014. There
is no evidence placed before
this court whether the robbery was one
envisaged to fall under a Part two of schedule 2 offence. It does not
appear this previous
conviction was one of robbery with aggravating
circumstances or the robbery of a motor vehicle. Accordingly this
court will deal
with the accused as if he was a first offender of
robbery with aggravating circumstances.
[37] The cumulative effect of sentences
must also be considered because the accused has been in custody for a
few months.
[38] In the result the following order
is made:
The accused is sentenced to 10 years
imprisonment on count 1
The accused is sentenced to 10 years
imprisonment on count 2.
In terms of section 280(2) of the
Criminal Procedure Act, the court orders that 10 years imprisonment
imposed on count two will
run concurrently with the ten (10) years
imprisonment imposed on count one.
[39] This court orders that the accused
be kept at the Boksburg prison youth facility and that he be brought
on Monday the 18th
of May 2015 to the Dr. Fabian and Florence Ribeiro
Treatment Centre in Cullinan to complete the six week treatment
program after
which he will be returned to the Boksburg prison to
complete his term of imprisonment and any additional programs
Boksburg prison
has in respect to substance abuse programs.
[40] In terms of
section 103
(1) (g) of
the
Firearms Control Act 60 of 2000
, the accused is declared unfit to
possess a firearm.
D DOSIO
ACTING JUDGE OF THE HIGH COURT
Appearances:
On behalf of the State Adv
Rampyapedi
On behalf of the Accused : Adv Dube
Date Heard: 15 May 2015
Handed down Sentence: 15 May 2015