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[2015] ZASCA 187
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Montsho v S (20572/2014) [2015] ZASCA 187 (27 November 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 20572/2014
In
the matter between:
THABISO
PRINCE MONTSHO
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Montsho
v The State
(20572/2014)
[2015] ZASCA 187
(27 November 2015)
Coram:
Ponnan,
Shongwe, Petse and Mathopo JJA and Van der Merwe AJA
Heard:
4
November 2015
Delivered:
27
November 2015
Summary:
Criminal
Procedure ─ sentence ─ prescribed sentences ─
imposition of in terms of the
Criminal Law Amendment Act 105 of 1997
read with
Part I
of Schedule 2 ─ gravity of offence coupled
with lack of genuine contrition rendering life imprisonment an
appropriate sentence.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria
(Thulare
AJ sitting as court of first instance):
The
appeal is dismissed.
JUDGMENT
Petse
JA (
Ponnan,
Shongwe and Mathopo JJA and Van der Merwe AJA
concurring):
[1]
The
appellant, Mr Thabiso Prince Montsho, was indicted in the Gauteng
Division of the High Court, Pretoria on one charge of murder
and one
charge of kidnapping. The first of these charges was subject to the
provisions of s 51(1) of the Criminal Law Amendment
Act 105 of 1997
(the Act), which prescribes a minimum sentence of life imprisonment
unless substantial and compelling circumstances
are found to exist.
The two offences related to the kidnapping of a four year old boy
(his girlfriend’s nephew) at Polo Street,
Wattville, Benoni and
his subsequent murder at the Wattville dam on 11 August 2012.
[2]
At the commencement of the trial the appellant tendered a plea of
guilty to both counts. In his written statement in support
of
his guilty plea in terms of s 112(1) of the Criminal Procedure Act 51
of 1977 (the CPA), the appellant stated, inter alia, that
‘prior
to [his] arrival at [his] girlfriend’s residence [he] did not
plan to commit any of the offences stipulated
in the indictment’.
The State did not accept the plea and intimated to the trial court
that it would present evidence to
establish that the murder was
premeditated.
[3]
At the conclusion of the trial the appellant was convicted on both
counts and was sentenced to life imprisonment on the murder
charge ─
the trial court having found that substantial and compelling
circumstances were not present ─ and eight years’
imprisonment on the kidnapping charge. The present appeal, with the
leave of the trial court, is solely directed against the sentence
of
life imprisonment.
[4]
The evidence led at the trial revealed that the appellant had an
intimate relationship with the deceased’s aunt, Ms Tepiso
Mghadi, who had terminated the relationship some weeks before the
offences were committed because her parents had not approved
of their
relationship and the abuse that she had been subjected to at the
appellant’s hands. On the day of the murder the
appellant had
gone to Mghadi’s home to plead with her to reconcile with him.
When there was no response, after he had knocked
on the door, he
left. At that stage, estimated to have been about 17h00, three young
children, one of whom was the deceased, were
playing in the street.
The appellant called the deceased to him and carried the deceased
away with him. In the evening of the same
day a search was conducted
for the deceased. During that search a report was received from a
certain Mr Albert Basie to the effect
that the appellant was the last
person seen with the deceased.
[5]
As a result of this report, the appellant was arrested. Whilst
admitting having taken the deceased away, the appellant denied
any
knowledge of the deceased’s whereabouts. The police searched
the premises where the appellant lived and discovered his
blood-stained clothes contained in a plastic bag. But the search for
the deceased proved fruitless. The next day the body of the
deceased
was discovered at the Wattville dam as were the deceased’s
clothes which were found some distance from the body
entangled in the
reeds. The appellant described the distance between the spot where he
had picked up the deceased and the scene
of the murder as ‘very
far away’ and said that it had taken him 30 minutes to cover
the distance on foot, walking past
two residential areas ‘before
he could reach’ the crime scene. The appellant further
testified that he was en route
to a traditional healers’
thanksgiving ceremony when he encountered the deceased. And in
keeping with their practices as
traditional healers he was carrying
his traditional healer’s garb which included a knife dangling
from the beads that form
part of his garb which were in a sports bag.
[6]
After he had arrived at Wattville dam he put the deceased on the
ground, undressed him and randomly stabbed him with his knife,
inflicting twelve stab wounds. He then threw the blood-stained knife
away and left the scene as the deceased lay helplessly on
the ground
crying. At this stage the appellant said that he was gripped by fear
not knowing what would befall him as a consequence
of what he had
done to the deceased. Hence, on his arrival at his home, he denied,
when confronted by the deceased’s family
members, that he had
earlier taken the deceased away. The appellant professed not to have
known what he was doing when: (a) he
took the deceased away; (b)
where he was going to with the deceased; (c) whether the deceased lay
on the ground or was in a standing
position when he stabbed him; (d)
why he undressed the deceased before stabbing him; and (e) why he
threw the deceased’s
clothes away. Nor could he recall whether
he had repeatedly stabbed the deceased and the parts of the body to
which his blows were
directed.
[7]
As a result of the suggestion by the appellant that he had
killed the deceased after ‘hearing noises in [his] ears’
the trial court ordered that he be examined and evaluated at
Weskoppies Hospital in terms of ss 77, 78 and 79 of the CPA. The
purpose of that referral was to inquire into the question whether the
appellant was, by reason of mental illness or mental defect,
capable
of understanding the court proceedings so as to make a proper defence
and whether at the time of the commission of the
offences charged he
was capable of appreciating the wrongfulness of his act and acting in
accordance with such appreciation.
[8]
Mr Jacobus Coetzee, a clinical psychologist, who had observed
and evaluated the appellant at Weskoppies Hospital, prepared
a
forensic psychological report which was admitted into evidence at the
trial by agreement between the State and the defence.
Mr
Coetzee, who testified, expressed the view that the appellant did not
suffer from any clinical psychiatric disorders at the
time of the
commission of the offences or the trial. Mr Coetzee opined that the
appellant was ‘malingering some psychiatric
symptoms,
specifically those in the psychotic disorder spectrum’. Hence
his conclusion that at the time of the commission
of the offences the
appellant could distinguish between right and wrong and act in
accordance with such an appreciation. The psychiatric
report of Drs K
Naidu and PH De Wet, who did not testify, but whose joint report was
also admitted into evidence by agreement,
arrived at the same
conclusion as that of Mr Coetzee.
[9]
It appears from the doctor’s report of the post-mortem
examination conducted on the body of the deceased that the deceased
died of multiple stab wounds. According to Dr Sarang who examined the
body of the deceased the injuries sustained by the deceased
were
concentrated in the upper part of his body and that in consequence of
the multiple stab wounds a part of the deceased’s
‘bowel
was protruding through the left abdomen’. After the conviction
of the appellant the deceased’s mother,
Ms Jabulile Moraswi
testified in relation to the effect that the kidnapping and murder of
the deceased had on her, the deceased’s
twin brother and the
entire family. She told the court that before the incident the
relationship between her and the appellant
was good and for this
reason they found it hard to come to terms with what the appellant
had done. In short, she testified that
the gruesome killing of the
deceased had a devastating effect on the entire family. This was
particularly so given that the deceased’s
twin brother could
not fully comprehended the enormity of the incident and why the
deceased was no longer with them. Ms Tepiso
Mghadi also testified.
She said that her intimate relationship with the appellant was
characterised by incessant emotional and
physical abuse that she
suffered at the hands of the appellant. And that she suffered a
miscarriage because the appellant assaulted
her whenever they had
disagreements.
[10]
In his judgment on sentence the learned trial judge, consonant with
his earlier finding that the murder had been premeditated,
alluded to
the fact that he was obliged to sentence the appellant to life
imprisonment unless the court was satisfied that substantial
and
compelling circumstances as contemplated in s 51(3)
(a)
of the Act exist which justify the imposition of a lesser sentence.
The trial court referred to
S
v Malgas
(117/2000)
[2001] ZASCA 30
;
2001 (2) SA 1222
(SCA) and
S
v Dodo
(CCT 1/01)
[2001] ZACC 16
;
2001 (3) SA 382
(CC) and having considered
the gravity of the offence, the personal circumstances of the
appellant and the interests of society
concluded that substantial and
compelling circumstances were not present. In consequence, as I have
already stated, it sentenced
the appellant to life imprisonment on
the murder charge.
[11]
Counsel for the appellant attacked the sentence of life imprisonment
on two bases. First, he submitted that the trial court
erred in its
finding that the murder was premeditated. Second, he argued that even
if the murder was premeditated and thus bringing
the nature of the
offence within the purview of s 51(1) of the Act, which prescribes
life imprisonment, the trial court should
have found that substantial
and compelling circumstances were present. Accordingly, it was
necessary, so counsel argued, for this
court to address the question
whether or not the word ‘or’ in the phrase ‘planned
or premeditated’ in relation
to murder contained in paragraph
(a) of Part I of Schedule 2 ought to be interpreted as denoting a
conjunctive or not. In this
regard counsel for the appellant strongly
relied on
S
v Raath
2009 (2) SACR 46
(C) (paras 12-14) for the proposition that the
phrase ‘planned or premeditated’ should be interpreted as
denoting a
single concept.
[12]
On the other hand counsel for the State argued that the evidence led
at the trial admitted of no doubt that the murder of the
deceased was
premeditated. Consequently, she submitted that the finding of the
trial court that no substantial and compelling circumstances
were
present could not be faulted.
[13]
In the view I take of the matter, I do not consider that there is any
benefit to be derived, on the facts of this case,
in
formulating a general definition of whether the phrase ‘planned
or premeditated’ denotes a single concept. The inquiry
as to
whether or not any given facts would at the very least sustain an
inference to be drawn from them as to whether or not an
accused had
manifested a plan or premeditation to commit the offence in issue can
properly be determined on a case by case basis.
Thus the
circumstances in which a crime was committed and the peculiar facts
of each case will determine whether or not the commission
of the
crime was planned or premeditated.
[14]
On the facts of this case, the appellant, having not found his former
girlfriend at her home, decided to take the deceased
away with him.
From the spot where he had picked up the deceased, he calmly walked a
considerable distance, taking him 30 minutes
to reach a secluded spot
at Wattville dam. Upon arrival at the dam he undressed the deceased,
unzipped his sports bag to retrieve
his knife from it and repeatedly
stabbed the deceased in the upper and vulnerable parts of the body.
All of this, in my view, is
consistent only with a calculated plan to
murder the deceased. In
S v Kekana
(692/2013)
[2014] ZASCA 158
(1 October 2014) this court said the following (para 13):
‘
[I]t is not
necessary that the [accused] should have thought or planned his
action a long period of time in advance before carrying
out his
plan’.
It
went on to state that ‘[t]ime is not the only consideration
because
even
a few minutes are enough to carry out a premeditated action
’.
(My emphasis.)
[15]
I now turn to deal with what I consider to be the real crux of this
appeal, that is, whether, on the facts of this case, the
trial court
was correct in its conclusion that substantial and compelling
circumstances were not present. And, as Ponnan JA pertinently
observed in
S v Matyityi
(695/09) {2010] ZASCA 127;
2011 (1)
SACR 40
(SCA) para 11:
‘
S v
Malgas
[2001 (2)] SA 1222
(SCA)] is where one must start. It, according to
Navsa JA, is ‘not only a good starting point but the principles
stated therein
are enduring and uncomplicated’ (
Director
of Public Prosecutions, KwaZulu-Natal v Ngcobo
).
Malgas
,
which has since been followed in a long line of cases, set out how
the minimum sentencing regime should be approached, and in
particular
how the enquiry into substantial and compelling circumstances is to
be conducted by a court. To paraphrase from
Malgas
:
The fact that Parliament had enacted the minimum sentencing
legislation was an indication that it was no longer “business
as usual”. A court no longer had a clean slate to inscribe
whatever sentence it thought fit for the specified crimes. It
had to
approach the question of sentencing, conscious of the fact that the
minimum sentence had been ordained as the sentence which
ordinarily
should be imposed, unless substantial and compelling circumstances
were found to be present.’
[16]
Counsel for the appellant submitted that the trial court erred in
concluding that substantial and compelling circumstances
were not
present. In elaboration, it was argued that the appellant’s
personal circumstances were sufficiently weighty to
tip the scales in
his favour. Counsel listed the following mitigating circumstances,
namely, that the appellant: (a) was 25 years
old when he committed
the offences; (b) pleaded guilty to the charge thereby manifesting
remorse; (c) he had one previous conviction
of assault; (d) worked as
a traditional healer; (e) was unmarried; and (f) was diagnosed with
an antisocial personality disorder
and was described as being
narcissistic. As to the remorse said to have been manifested by his
guilty plea, what this court said
in
Matyityi
is instructive.
It said (para 13):
‘
It has been
held, quite correctly, that a plea of guilty in the face of an open
and shut case against an accused person is a neutral
factor. . .
There is, moreover, a chasm between regret and remorse. Many accused
persons might well regret their conduct, but that
does not without
more translate to genuine remorse. Remorse is a gnawing pain of
conscience for the plight of another. Thus genuine
contrition can
only come from an appreciation and acknowledgement of the extent of
one's error. Whether the offender is sincerely
remorseful, and not
simply feeling sorry for himself or herself at having been caught, is
a factual question. It is to the surrounding
actions of the accused,
rather than what he says in court, that one should rather look. 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. 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 or her
change of heart; and whether he or she does indeed have a true
appreciation
of the consequences of those actions.’ (Citations
omitted.)
[17]
At the trial the appellant did his best to minimise his moral
culpability by feigning lack of knowledge or recollection of
why he
took the deceased away in the first place, walked 30 minutes with him
to an isolated spot at the dam, removed all of the
deceased’s
clothes; why and where he threw them away; and what became of the
blood stained knife used to inflict no less
than 12 stab wounds to
the upper body of the deceased. As against this the appellant gave
what was by all accounts a rational account
of his actions before he
encountered the deceased and what he did after he had executed this
gruesome deed. All of this can hardly
be said to be conduct
manifesting contrition.
[18]
On the facts of this case the appellant, on his own version, said
that after executing his deed he became scared as he feared
that
members of the community would attack him if they found out that he
was responsible for the deceased’s murder. Thus
he was
concerned more about his own well-being and was indifferent to the
plight of the victims of his crime. Moreover, after the
report made
by Mr Basie and the subsequent discovery of the appellant’s
blood-stained clothes, the evidence pointing to him
having
perpetrated the murder was overwhelming. So far as his age is
concerned there is nothing to suggest that he was immature.
Counsel
for the appellant was constrained to concede that the mitigating
factors relied upon, when viewed individually, were neutral.
He
nonetheless argued that when taken cumulatively they constitute
substantial and compelling circumstances. To my mind this submission
is devoid of merit. Just how a multiplicity of neutral factors could
somehow metamorphose into weighty factors constituting substantial
and compelling circumstances is difficult to comprehend. And as
William Shakespeare, in his usual inimitable style aptly put it
in
King Lear Act 1, scene 1 ‘nothing will come of nothing’.
On this score it is as well to recall what this court said
in
Malgas
(para 9):
‘
The
specified sentences were not to be departed 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.’
[19]
The crimes that the appellant committed are abhorrent and their
enormity cannot be over-emphasised. The deceased, only four
years
old, it will be recalled, was mercilessly stabbed whilst naked. His
cries went unheeded by the appellant. He was left to
die a painful
and agonising death. The appellant must have been in no doubt that,
left in a secluded spot far away from residential
areas and severely
injured, the deceased would eventually die. Why the appellant chose
to exact revenge on a toddler in the manner
he did was not explained
by the appellant. After he had executed his heinous deed, the
appellant heartlessly played on the emotions
of the members of the
deceased’s family by not informing them where the deceased was
thereby perpetuating their agony, mental
anguish and emotional
trauma. And all of this manifested a flagrant disregard for the
sanctity of human life and disdain for the
feelings of the victims of
his crimes.
[20]
As
I have already stated, the trial court found that there were no
substantial and compelling circumstances present to justify a
lesser
sentence than the one prescribed in terms of s 51(1) of the Act.
Neither can we. On the contrary, I daresay, the objective
facts
bearing on the gravity of the offences of which the appellant was
convicted are such that even without s 51(1) life imprisonment
would
have been justified. The murder of the deceased was a particularly
appalling, horrific and heinous crime. In my view, any
sentence,
other than life imprisonment, would utterly fail to reflect the
gravity of the crimes and, in the context of this case,
to take into
account both the prevalence and pervasive nature of violent crime
against children.
[21]
In all the circumstances I am satisfied that the conclusion reached
by the trial court that substantial and compelling circumstances
were
not present cannot be faulted. Accordingly, there is no basis upon
which this court would be justified in interfering with
the sentence
of life imprisonment.
[22]
In the result the following order is made:
The
appeal is dismissed.
_________________
X M PETSE
JUDGE
OF APPEAL
APPEARANCES:
For
Appellant:
F Van As
Instructed
by:
Legal
Aid South Africa, Pretoria
Legal
Aid South Africa, Bloemfontein
For
Respondent:
P Vorster
Instructed
by:
The
Director of Public Prosecutions, Pretoria
The
Director of Public Prosecutions, Bloemfontein