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 129
|
|
S v Matjeke (049/2016) [2016] ZAGPJHC 129 (7 June 2016)
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 049/2016
DATE:
7 JUNE 2016
In
the matter between:
THE
STATE
And
WILLIAM
JABULANE MATJEKE
Summary
Sentence
– Murder and Robbery with aggravating circumstances. Sec 51 (1)
and 51 (2) of Act 105 of 1997 applicable –
Premeditated murder
– Substantial and compelling circumstances – Role of
alcohol whether serving as mitigating or aggravating
for sentence.
The
accused was convicted of murder and robbery with aggravating
circumstances. Evidence indicated that he had consumed alcohol
before
and during the commission of the crimes resulting in him killing the
wrong person to the one he wanted to kill in revenge.
Sec 51 (1) of
Act 105 of 1997 is applicable in that murder was premeditated. The
deceased, a colleague to the accused with whom
they had good working
relations, was mistaken for a gunman who had fired shots at the
accused moments earlier. Alcohol concentration
in his blood was 0.05
gram per 100 ml.
Held,
that, substantial and compelling circumstances can be found in
traditional mitigating factors. If the imposition of prescribed
sentences is disproportionate to crime, criminal and legitimate needs
of society; that on its own constitutes substantial and compelling
circumstance justifying a lesser sentence than life imprisonment.
Held
,
further, that alcohol consumption can in certain circumstances serve
as mitigating circumstances. A cumulative sentence of 20
years
imprisonment was imposed.
SENTENCE
RATSHIBVUMO
AJ:
1.
Mr. Matjeke (the accused), was convicted by
this court of the crimes of murder and robbery with aggravating
circumstances. The court
will now proceed to hand down the sentence.
It is the court’s unpleasant and difficult task to impose the
sentence on the
accused, but it has to be done.
2.
The
imposition of sentence is not a mechanical process in which
predetermined sentences are imposed for specific crimes. It is a
nuanced process in which the court is required to weigh and balance a
variety of factors to determine a measure of the moral, as
opposed to
legal, blameworthiness of an accused. That measure is achieved by a
consideration, and an appropriate balancing, of
what the well-known
case of
S
v Zinn
[1]
described as a ‘triad consisting of the crime, the offender and
the interests of society’.
3.
A sentencing court does not always have an
untrammelled discretion to determine sentence – a clean slate
on which to work.
In certain cases – and this applies to all
the charges the accused was convicted of –prescribed sentences
are provided
for by the Criminal Law Amendment Act 105 of 1997 (the
so called “Minimum Sentences Act”). Section 51 of Minimum
Sentences
Act provides,
1)
Notwithstanding any other law, but subject
to subsections (3) and (6), a regional court or a High Court shall
sentence a person
it has convicted of an offence referred to in Part
I of Schedule 2 to imprisonment for life.
2)
“
Notwithstanding any other law but
subject to subsections (3) and (6), a Regional Court or a High Court
shall sentence a person who
has been convicted of an offence referred
to in-
(a)
Part II of Schedule 2, in the case of-
(i)
a first offender, to imprisonment for a period not less than 15
years.”
Murder
is listed in Part I of Schedule 2 when (a) it is planned or
premeditated and
in casu
,
the court found premeditation on the part of the accused. Robbery
with aggravating circumstances is equally listed in Part II
of
Schedule 2.
4.
In
line with the
Zinn
decision, in determining an appropriate sentence, the court has taken
into consideration the accused’s personal circumstances,
interests of the society, the crime and the circumstances surrounding
its commission.
Although
these interests may be conflicting in nature, it is expected of this
court to keep a fine balance between them, and it
must endeavour not
to over or to under emphasize anyone of them.
The
court is also called upon to exercise a measure of mercy when
imposing a sentence –
S
v Rabie
[2]
.
5.
The offender
:
Personal circumstances: The accused is an adult male aged 33 years
old. He is a father of two kids aged, 11 and 6 years old who
are all
school-going. He is a first offender. He resides with his fiancée,
Mary who was in his company when the crimes he
was convicted of were
committed. She is currently pregnant and is due to deliver by today.
This could mean the day he is sentenced;
the accused also became a
father. What a bitter-sweet moment.
6.
The society’ interests
:
The interests of the community overlap to an extent with what has
been mentioned above. The society deserves to live in a better
world
than the one forced on it by the likes of the accused. Had the
accused as a taxi driver treated members of the public with
the
respect they deserve at the shooting scene, this would not have
happened. Those people had a right to choose not to be passengers
in
the accused’s motor vehicle especially seeing that it would
have been overloaded. The accused chose a confrontational
way to
force them in. That triggered the shooting by one of them which set
the wheel rolling to this end.
7.
The crime:
The
crimes the accused was convicted of are very serious. The way the
murder was committed suggests that the accused does not value
the
sanctity of life. The deceased died a painful and unnecessary death.
We do not know for sure if the deceased was already dead
by the time
the accused decided to drive away from the scene. He could have taken
efforts to search for a person he had knocked
down, seeing, no matter
how much guilt he apportioned to him, it was a human being; but he
chose not to. Had he done so, as statutorily
obliged, he would have
noticed that he meted out his revenge on a wrong person. He would
also have had enough opportunity to observe
if there was still any
life in him so as to seek medical help.
8.
The accused also had enough time to repent
from his plans to avenge and kill, but he chose not to, even as his
fiancée and
other occupants of the motor vehicle tried to
persuade him not to. Had the accused been caring enough and concerned
over people
injured in his motor vehicle, it was appropriate for him
to seek medical help than expose them to further risk when he took
them
back into the battle. For these reasons, the decision to drive
back was irrational.
9.
The court cannot overlook the role of
alcohol consumption in this regard. There is enough evidence to
suggest that the accused was
not sober as testified by W/O Mabotja.
There is however no evidence suggesting that such consumption
diminished the accused’s
criminal capacity. It however remains
anybody’s guess as to whether, had he been sober he would have
allowed the hikers a
right not to board his motor vehicle, whether he
would have listened to his fiancée’s plea amongst
others, not to
go back, and whether he would have recognised the
deceased as his colleague who was a passenger in his motor vehicle.
10.
While
alcohol consumption can serve as aggravating circumstances in certain
cases,
[3]
it certainly serves as
a mitigating factor in circumstances such as of this case.
[4]
The court cannot overlook that the accused’s motor vehicle was
shot at, albeit at his initiatives. He had passengers who
were
injured in his motor vehicle and in a moment, decided it was time to
avenge the shooting. Alcohol content in his blood shows
it was higher
that the statutory limit pertaining to a motor vehicle driver. The
fact that it played a limited role cannot be questioned.
11.
As
indicated above, sec 51 (1) applies to a charge of premeditated
murder whereas sec 51 (2) applies to robbery with aggravating
circumstances. The approach of the courts to sentence when the
Minimum Sentences Act is applicable is now well developed. It was
emphasised in
S
v Malgas
[5]
,
that when sentencing offenders for crimes specified in the Minimum
Sentences Act, a court is required to ‘approach that
question
conscious of the fact that the legislature has ordained life
imprisonment or the particular prescribed period of imprisonment
as
the sentence which should ordinarily be imposed …’. Even
though the Minimum Sentences Act has placed emphasis on
‘the
objective gravity of the type of crime and the public’s need
for effective sanctions against its discretion to
deviate from the
prescribed sentence was granted to courts ‘in recognition of
the easily foreseeable injustices which would
result from obliging
them to pass the specified sentences come what may.’ Where
imposition of prescribed sentence would be
disproportionate to crime,
criminal and legitimate needs of society; that on its own constitutes
substantial and compelling circumstance
justifying a lesser
sentence.
[6]
12.
Equally,
in
Malgas
[7]
,
it was held that it is impermissible to deviate from the prescribed
sentence ‘lightly and for flimsy reasons which could
not
withstand scrutiny’ but, this apart, all factors relevant to
determining sentence remain relevant when the Act applies
and a
sentencing court must look to the ‘ultimate cumulative impact’
of all of these factors in order to determine
whether a departure
from the prescribed sentence is justified. The court of appeal held
that when a court is convinced that the
imposition of the prescribed
sentence would be unjust or ‘disproportionate to the crime, the
criminal and the legitimate
needs of society’ that in itself
constitutes substantial and compelling circumstances.
[8]
13.
Malgas
was
considered by Nugent JA in
S
v Vilakazi
[9]
.
At paragraph 14 he observed that it is ‘only by approaching
sentencing under the Act in the manner that was laid down in
S
v Malgas
… that incongruous and disproportionate sentences are capable
of being avoided’ and that by ‘avoiding sentences
that
are disproportionate a court necessarily safe-guards against the risk
… that sentences will be imposed in some cases
that are so
disproportionate as to be unconstitutional’. The learned
judge of appeal went on to set out a criteria
on how a court should
approach the imposition of sentence when the Minimum Sentences Act
applies, stating, at paragraph 15:
‘
It
is clear from the terms in which the test was framed in
Malgas
and endorsed in
Dodo
that it is incumbent upon a court in every case, before it imposes a
prescribed sentence, to assess, upon a consideration of all
the
circumstances of the particular case, whether the prescribed sentence
is indeed proportionate to the particular offence. The
Constitutional
Court made it clear that what is meant by the “offence”
in the context … “consists of all
factors relevant to
the nature and seriousness of the criminal act itself, as well as all
relevant personal and other circumstances
relating to the offender
which could have a bearing on the seriousness of the offence and the
culpability of the offender”.
If a court is indeed satisfied
that a lesser sentence is called for in the particular case, thus
justifying a departure from the
prescribed sentence, then it hardly
needs saying that the court is bound to impose that lesser sentence.’
It
is clear from the above therefore that the Minimum Sentences Act does
not take away the duty of the courts to impose a sentence
that
incorporates the purposes of sentence.
14.
It is therefore imperative to consider the
purposes of sentences before determining if the imposition of the
prescribed sentences
would be disproportionate to the offender, the
crime and legitimate needs of the society. The purposes of sentence
are deterrent,
preventative, reformative and retributive – see
R
v Swanepoel
1945 (AD) 444. A sentence must deter others from committing similar
offences as well as crime in general. If deserved, the court
also has
to provide the accused with an opportunity for rehabilitation. In
determining if the same is warranted, the court has
to weigh this
need against the seriousness of the crime. Again, the court does not
have to consider all the sentencing options
available irrespective of
the crime committed.
15.
In
S
v Swart
2004
(2) SACR 370
(SCA) at 378B-C the Supreme Court of Appeal said the
following: "In our law retribution and deterrence are proper
purposes
of punishment and they must be accorded due weight in any
sentence that is imposed. Each of the elements of punishment does not
require to be accorded equal weight but instead proper weight must be
accorded to each according to the circumstances. Serious
crimes will
usually require that retribution and deterrence should come to the
fore and that the rehabilitation of the offender
will consequently
play a relatively smaller role."
16.
The defence addressed the court
listing the following factors as substantial and compelling reasons
justifying deviation from the
prescribed sentences: The accused is a
first offender. There was an intake of alcohol on his part and it may
have influenced him
to an extent. His motor vehicle was shot at and
two of his passengers were struck with bullets. The accused
surrendered himself
to the police and did not conceal that he was a
driver. The accused visited the family of the deceased and
apologised. His kids
will be affected if he is given life
imprisonment.
17.
There
is no dispute that at some stage the accused did apologise to the
deceased’s family. While such a deed is appreciated,
it however
falls short of displaying remorse on his part especially looking at
the remorse criteria set out in
S
v Matyityi
[10]
.
For he failed to verbalise the remorse before the court, to
demonstrate what made him commit the crime and what has happed since,
that sees him regret the deed.
18.
Initially, the
State counsel countered this submitting that alcohol consumption does
not serve as a mitigating factor for sentencing
purposes. After he
was allowed time to refer and comment on certain authorities, he
conceded that alcohol consumption can indeed
serve as a mitigating
factor since there were numerous authorities to that effect. He
however fell short of admitting that it should
serve as a mitigating
factor in this case.
19.
This stance is
surprising given the fact that there is no dispute that the accused
had consumed alcohol; W/O testified that he did
not appear to be
sober; he drove back in order to confront the man who shot at him and
even as he reported the matter to the police,
he seemed to genuinely
believe that the man he had knocked down with the car was the gunman
who had fired shots at him. He enjoyed
good collegial relationship
with the deceased whom he even exempted from paying a taxi fare that
night.
20.
The court is satisfied that there are
substantial and compelling circumstances that justify deviation from
the prescribed sentences
of life imprisonment in respect of count 1
and 15 years imprisonment in respect of count 3. Following are the
circumstances that
justify such deviation: The accused had consumed
alcohol which obviously influenced him to an extent. His motor
vehicle was shot
at and two of his passengers were struck with
bullets, albeit at his initiatives. The accused surrendered himself
to the police
and did not conceal that he was a driver. The
prescribed sentences are disproportionate to the offender, the crime
and legitimate
needs of the society.
21.
Having considered all the aspects above,
the following sentence is imposed:
1.
Count 1: 20 (twenty) years imprisonment.
2.
Count 3: 10 (ten) years imprisonment.
3.
The sentence in count 3 is to run
concurrently with the sentence in count 1. The cumulative sentence is
20 (twenty) years imprisonment.
22.
No order made in terms of section
103 Act
60
of 2000 (accused is automatically unfit to possess a firearm).
T.V.
RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
Date
of sentence: 07 June 2016
For the State:
Adv. Mkhari
Instructed
by: Director of Public Prosecutions
Johannesburg
For
the Accused: Adv. Mncwango
Instructed
by: Legal Aid South Africa
Johannesburg
[1]
1969
(2) SA 537
(A), at 540G-H
[2]
1975
(4) SA 855
(AD).
[3]
S
v Ndhlovu
(2)
1965 (SA) 692 (A).
[4]
S
v Johnson
1969
(1) SA 201
(A),
S
v Alam
2006
(2) SACR 613
(Ck).
[5]
2001
(1) SACR 469
(SCA) para 8.
[6]
S
v Vilakazi
2009
(1) SACR 552
(SCA),
S
v Raath
2009
(2) SACR 46
(C) &
S
v Madikane
2011
(2) SACR 11
(ECG).
[7]
Supra
at
para 9
[8]
S
v Malgas
(supra)
at para 22. See also
S
v Fatyi
2001
(1) SACR 485
(SCA), para 5
[9]
2009
(1) SACR 552
(SCA)
[10]
2011
(1) SACR 40
(SCA) para 9-14.