About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2016
>>
[2016] ZAGPJHC 77
|
|
S v Nkosi (SS240/2014) [2016] ZAGPJHC 77 (3 May 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NUMBER: SS240/2014
DATE: 03 MAY 2016
In the matter between:
THE STATE
And
BONGANI SIZWE
NKOSI
...................................................................................................
ACCUSED
JUDGMENT
DOSIO AJ:
[1] The accused pleaded guilty and was
found guilty on count one (1), which is a charge of murder, read with
the provisions of section
51 (2) of the Criminal Law Amendment Act
105 of 1997 (“
Criminal Law Amendment Act&rdquo
;), and on count
two (2), of a charge of arson.
[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 also the purposes of
sentence which include prevention,
retribution, reformation and
deterrence.
[3] As regards the events of this
fateful day, the court has merely the accused’s explanation
incorporated in the plea of
guilty. On the 12th of September 2014,
at Saja Street, Braamfischer, the accused set alight the dwelling of
the deceased, thereby
destroying and damaging the property of the
deceased, namely Darlington Mbetse. The deceased owed the accused an
amount of R100-00,
which he did not want to pay back. The accused
also believed the deceased stole five (5) crates of beer from him. As
a result,
out of revenge, the accused set the house on fire thereby
killing the deceased who was inside. He was not aware the deceased
was
inside the house at the time, He did however reconcile himself
with that possibility and went recklessly ahead to burn down the
dwelling.
[4] Counsel for the State and Defence
negotiated and entered into an agreement in respect to the plea and
sentence, in terms of
section 105A
(1) (b) (i)-(iii). The accused
confirmed that such an agreement had been entered into freely,
voluntarily and in his sound and
sober senses. The contents of the
agreement were disclosed in court. The court was satisfied that the
sentence agreement was just.
[5] The personal circumstances of the
accused are;
He was born on the 26th of June 1988
and he is presently twenty (27) years of age. He was twenty six (26)
years old at the time
he committed these offences. He passed standard
10/grade 12 and has no further formal qualifications. He is single
and has two
children. At the time of his arrest he was not formally
employed, however he used to do odd jobs. He used the earnings to
provide
financially for his children. The accused spent six (6) weeks
in custody awaiting trial and was released on the 31st of October
2014. The accused is a first offender. He has pleaded guilty which
shows that he has deep remorse for his actions. He felt extremely
regretful that the deceased had passed away. He co-operated with the
police from the beginning.
[6] In respect to the seriousness of
the offences the court would like to remark as follows;
The offences of murder and arson are
very serious and prevalent within the jurisdiction of this Court.
Murder is the most serious of crimes.
The deceased died a most painful and traumatic death. He was twenty
seven (27) years old at
the time of his death. Every citizen in this
country has a right to life and to property guaranteed by the
Constitution. Mr and
Mrs Mbeste and their entire family are left with
a void that cannot be filled. Mrs Mbetse is still according to the
formal plea
that was handed in, suffering from the trauma of seeing
her son in flames. From time to time she still experiences
nightmares.
[7] In respect to count two, the crime
of arson is also serious, as it has destroyed the dwelling of the
deceased and caused much
shock to the family of the deceased.
[8] The post mortem report states that
the cause of death was large surface burns, with multi organ failure.
INTERESTS OF THE COMMUNITY
[9] 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.
[10] The provisions of the
Criminal Law
Amendment Act with
specific reference to
section 51
(2) dictates that
if an accused has been convicted of an offence referred to in
part II
of schedule 2, he shall be sentenced to a period of not less than
fifteen (15) years imprisonment.
[11]
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.
[12] The court has notwithstanding the
application of the prescribed minimum sentences, considered the
agreement, in respect to
sentence, entered into between the State and
Defence in terms of section 105A (1) (b) (i)-(iii) of the Criminal
Procedure Act.
[13] The Counsel for the State and the
Defence have agreed that there are no substantial and compelling
circumstances warranting
a deviation from the prescribed sentence of
fifteen (15) years imprisonment as prescribed in
section 51(2)(a)
of
the
Criminal Law Amendment Act. This
court agrees.
[14] In the result the following order
is made:
The accused is sentenced to fifteen
(15) years imprisonment on count 1
The accused is sentenced to five (5)
years imprisonment on count 2.
[15] The cumulative effect of sentences
has been considered by this court. The offences were committed on the
same day, and are
inextricably linked in terms of the locality and
time. This court is accordingly going to order that the sentence
imposed on count
two (2) run con-currently with the sentence imposed
on count one (1).
In terms of section 280(2) of the
Criminal Procedure Act, the court orders that five (5) years
imprisonment imposed on count two
(2) will run concurrently with the
fifteen (15) years imprisonment imposed on count one. Accordingly the
effective term of imprisonment
will be fifteen (15) years.
[16] 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 Serepo
On behalf of the Accused: Adv
Buthelezi
Date Heard: 3 May 2016
Handed down Judgment: 3 May 2016