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[2018] ZAGPJHC 444
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S v Khumalo and Another (SS77/2017) [2018] ZAGPJHC 444 (19 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER : SS 77/2017
In
the matter between:
THE
STATE
and
MICHAEL
CHARLES
KHUMALO ACCUSED
1
BONGANE
HONEST
NGWENYA ACCUSED
2
JUDGMENT-SENTENCE
DOSIO AJ
SENTENCE
[1]
The accused have been found guilty of 4 counts. Count 1 is the
crime of murder read with the provisions of section 51(1)
and Part 1
of schedule 2 of Act 105 of 1997. Count 2 is also a charge of murder
read with the provisions of section 51(1) and Part
1 of schedule 2 of
Act 105 of 1997. Count 3 is a charge of a contravention of section 3
of the Firearms Control Act 60 of 2000
(“Act 60 of 2000”).
Count 4 is a contravention of section 90 of Act 60 of 2000 for
possession of unlawful ammunition.
[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.
PERSONAL CIRCUMSTANCES OF THE
ACCUSED
[3] The personal circumstances of the
accused are as follows;
Accused
1
Accused 1 is 33 years old and
completed grade 5. He is single and has no children. His parents
passed away when he was very young
and he was raised by his aunt who
passed away in 2009. He was employed as a painter and was
earning R2000 per month. He has
been in custody for 1 year and 5
months. He has no previous convictions. The defence counsel asked
this court to consider the fact
that he made formal admissions,
admitting his involvement in counts 2, 3 and 4 and showing remorse,
that this should be regarded
as substantial and compelling
circumstances not to impose life imprisonment.
Accused
2
Accused
2 is 29 years old and although he is unmarried he has a live in
girlfriend. They
have
3 children aged 13 years, 9 years and 1 year and 3 months old.
Accused
2
supported his girlfriend and his children by doing peace jobs. He was
earning R500 per
week.
His highest level of education is grade 7. He does not have a
passport and neither
does
he have an identity document. He has been in custody for 1 year and 5
months. The
defence
counsel requested this Court to depart from the minimum prescribed
sentence of
life
imprisonment on count 1 and count 2. As support for this argument
counsel argued
that
the participation of accused 2 was lessened due to the fact that he
was found guilty on
the
basis of common purpose and that the intention he exercised in
respect to all the
offences
was
dolus
eventualis
.
SERIOUSNESS OF THE OFFENCES
[4]
In respect to the seriousness of the offences this court would like
to state as follows:
In
respect to count 1 and count 2
These
crimes were committed in the early morning hours whilst the 2
deceased were
outside
Sarah’s tavern. Accused 1 and 2 approached this group who were
gambling and
accused
placed a bet when it was not even his turn. This clearly irritated
the deceased on
count
2 who rejected his bet. Accused 1 instead of accepting this, started
insulting the
bystanders
and then drew a firearm and killed the deceased on count 2. Although
there is
no
proof that these 2 murders were planned, this Court has found that
the 2 murders were
committed
by accused 1 and 2 who were acting in the furtherance of a common
purpose,
accordingly
both murders fall within the definition of Schedule 2 of
part 1
of
the
Criminal
Law
Amendment Act 105 of 1997
. The post-mortem report in respect to the
deceased on
count
1 shows a gunshot wound to the head, and the post-mortem report in
respect to the
deceased
on count 2 shows the prevalence of numerous gunshot wounds. These
murders
were
totally unnecessary. Accused 1 and 2 could have just left the scene
without killing these 2 deceased. The actions of accused
1 and 2 are
heightened by the fact that there were numerous innocent bystanders
standing around this gambling table, and the callous
manner in which
accused 1 and his co-perpetrator Vorsheka, who is not before the
court, could easily have killed more people.
[5]
The State called 2 witnesses in aggravation of sentence. The first
witness was
Mduduzi
Xaba. He is the brother of the deceased on count 2. He stated that
the deceased
Mhlanguleni
Xaba would have been either 42 or 43 years old had he not been
killed. The
deceased
was self-employed running a transport business. The deceased had two
homes,
one
in Johannesburg and one in Kwazulu Natal. He also had 2 wives, one in
each
province.
The wife in Natal had 3 kids, aged 14 years, 10 years and 8 years
old. The wife
in
Johannesburg had 5 kids, aged 19 years, 12 years, 8 years, 10 years
and 3 years old.
The
deceased was taking care of all his children. The death of the
deceased impacted
heavily
on the family of the deceased, but also the community who were
dependant on the
transport
the deceased rendered. The death of the deceased has also impacted
heavily on
the
financial situation of his family as one of the vans in Kwazulu Natal
had to be sold so
that
they could use the money for the deceased’s burial. The 19 year
old daughter in
Johannesburg
also had to stop her studies as there was no longer money to pay for
her
studies.
[6]
The second witness called by the state was Hoza Monareng. He stated
that the deceased
Sidwell
Monareng was his younger brother. The deceased was employed and was
looking
after
his 4 children aged 14 years, 13 years, 9 years, and 5 years old. Two
of the children
were
from his marriage with his current wife, and the two other children
were born out of
wedlock
with two separate woman. Currently, there is no one maintaining these
4 children
and
the family of the deceased has also experienced extreme financial
hardship. The
deceased’s
current wife is also not working.
[7]
It is clear that both witnesses called by the State have also been
affected emotionally by
the
loss of their respective brothers.
[8]
This country has witnessed an ever-increasing wave of violence.
Murder with the use of firearms is ever-prevalent. Innocent
and
defenceless victims continue to fall prey to these types of offences.
[9]
Murder is the most serious of crimes. It not only ended the life of
two innocent bystanders,
but
it left hardship for the family members left behind.
INTERESTS
OF THE COMMUNITY
[10]
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 the possession of
unlicensed
firearms
and ammunition have reached high levels, the community craves the
assistance
of
the courts.
[11]
In
S
v Msimanga and Another
2005 (1) SACR 377
(A), it was held that violence in any
form is no longer
tolerated, and our Courts, by imposing heavier sentences, must send
out
a
message both to prospective criminals that their conduct is not to be
endured, and to the
public
that Courts are seriously concerned with the restoration and
maintenance of safe
living
conditions and that the administration of justice must be protected.
[12]
In respect to counts 3 and 4, the proliferation of unlicensed
firearms has become difficult to
control
in South Africa. The courts continue to impose high sentences for
these types of
offences,
but the commission of these crimes continue unabated. The firearm
that was
used
by accused 1 discharged 9mm cartridges. 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
behaviour
of the accused and others like them, impact 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.
[13]
In respect to the murder counts, namely, count 1 and 2,
section 51
(1) of Act 105 of 1997
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.
[14]
In respect to count 3, the penalty in Act 60 0f 2000 for a
contravention of section 3 is 15
years
imprisonment.
[15]
In respect to count 4, the penalty in Act 60 of 2000 for a
contravention of section 90 is also15 years imprisonment.
[16]
Section 51 (3) of Act 105 of 1997 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.
[17]
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.”
[18]
The court has notwithstanding the application of the prescribed
minimum sentences, in
respect
to count 1 and 2, considered other sentencing options. This court
does not find
that
a fine, a suspended sentence or correctional supervision is
appropriate in these
circumstances.
[19]
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.
[20]
After the 2 State witnesses testified today and explained the
hardships the family of the
deceased
have endured, it is clear neither of the accused approached the
families of the
deceased
to express any signs of remorse. They instead have placed this court
through a
very
lengthy trial, accused 1 disputing the confession which he made at
the time of
his
arrest. The fact that accused 1 made admissions at the end of the
State’s case does
not
demonstrate to this court real and genuine remorse.
[21]
There is no clear explanation before this court as to what motivated
the accused to commit
these
deeds.
[22]
The fact that accused 1 is 33 years old and accused 2 is 29 years old
and both are first
offenders,
is certainly a positive factor in their favour, but it can hardly be
a substantial and
compelling
circumstance on its own. (see
Shubane
v The State
(073/14)
2014 ZASCA 148
26 September 2014).
[23]
The learned Poonen JA in of
S
v Matyityi
2011 (1) SACR 40
SCA 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”.
[24] The learned Poonen JA 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.”
[25]
In my view there are no substantial and compelling circumstances
present in respect to
accused
1 or 2 that warrants a departure from the prescribed statutory norm
in respect to
count
1 or 2. In respect to count 1 irrespective of the fact that accused 1
watched as
Vorsheka
fired shots, or whether it was his own firearm that killed the
deceased on
count
1, accused 1 knew what was going to happen. So too in respect
to count 2, there
was
no reason for accused 1 to kill the deceased Mhlanguleni in cold
blood. In respect to
count
1 and 2, irrespective of the fact that accused 2 did not fire the
shots that killed both
deceased,
accused 2 still reconciled himself with the actions of accused 1 and
Vorsheka
and
he knew what was going on. Neither of these 2 accused requested to
approach the
families
of the deceased to tell them they were sorry for what they had done.
There is also
nothing
explaining to this Court why these 2 accused changed from ostensibly
normal
citizens,
to gun wielding criminals killing people in the early morning hours
outside a
tavern.
[26]
Both accused were acting with a common purpose and this court finds
no reason to
differentiate
between the sentences they will both receive. Notwithstanding the
fact that
the
role of accused 2 might be distinguishable from that of accused 1 or
Vorsheka, he did
nothing
to stop the others from shooting, and neither did he do anything to
dissociate
himself
from these crimes that were being committed in his presence.
[27]
Accused 1 and 2 have spent 1 year and 5 months in custody.
[28]
In the case of
DPP
v Gcwala
(295/13)
[2014] ZASCA 44
(31 March 2014) it was held that
the period in
detention pre-sentencing is but one of the factors that should be
taken into
account
in determining whether the effective period of imprisonment to be
imposed is
justified
and whether it is proportionate to the crimes committed. It was
further stated in
this
case that the test is not whether on its own that period of detention
constitutes a
substantial
and compelling circumstance, but whether the effective sentence
proposed is
proportionate
to the crimes and whether the sentence in all the circumstances,
including
the
period spent in detention prior to conviction and sentence is a just
one. This Court
finds,
the sentence of life imprisonment in respect to the murders that were
committed
warrants
a term of life imprisonment.
[29] The cumulative effect of
sentences has been considered by this court and so has the
period
of detention pending the finalisation of this matter been considered
by the court. The two counts of murder are inextricably
linked as
they happened almost at the same time. Therefore this court finds
that the sentences on counts 1 and 2 should run con-currently.
[30] In the result the following order
is made:
Count 1
Accused 1 is
sentenced to life imprisonment
Accused 2 is
sentenced to life imprisonment
Count 2
Accused 1 is
sentenced to life imprisonment
Accused 2 is
sentenced to life imprisonment
Count 3
Accused 1 is
sentenced to 8 years imprisonment
Accused 2 is
sentenced to 8 years imprisonment
Count 4
Accused 1 is
sentenced to 4 years imprisonment
Accused 2 is
sentenced to 4 years imprisonment
[31]
In terms of section 39 (2)(a)(i) of the Correctional Services Act 111
of 1998 (“
Correctional Services Act&rdquo
;) any determinate
sentence of incarceration in addition to
life
imprisonment is subsumed by the latter. Accordingly, in terms of
section 39
(2)(a)(i)
of
the
Correctional Services Act the
sentences imposed on count 3 and 4
are
automatically
subsumed under the life imprisonment sentence imposed.
[32]
In terms of the provisions of
section 39(2)(a)(ii)
of the
Correctional Services Act the
life
imprisonment
imposed on count 2 in respect to both accused will run concurrently
with
the
life imprisonment imposed on count 1.
[33]
In terms of
section 103
(1) of Act 60 of 2000, accused 1 and 2 are
declared unfit to
possess
a firearm.
_______________________
D
DOSIO
ACTING
JUDGE OF THE HIGH COURT
Date sentence imposed : 19 March 2018
Appearances:
On behalf of the State
Adv
MashegoWilliams
On behalf of Accused 1 Adv
Maphiri
On behalf of Accused 2 Adv
Brits