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[2010] ZAGPJHC 170
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S v Matlala (247/2007) [2010] ZAGPJHC 170 (28 May 2010)
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SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
Registrar Ref. No. 247/2007
Date:28/05/2010
In the matter between:
THE STATE
versus
ALPHEUS
PHUTHI
MATLALA
.........................................................................
Accused
MEYER,
J
[1] On
31 March 2010, the accused was convicted of the murder of the late
Mr. Daniel Matome Bopape, who died on 2 May 2007. Mr.
C. Makhubele,
a Probation Officer in the employ of the Gauteng Provincial
Government Department of Social Development, prepared
a pre-sentence
report in respect of the accused (exhibit ‘K’), and he
also testified. The accused testified in mitigation
of sentence. A
representative of his employer, Mr. D. Burton, also testified on his
behalf. Adv. Dreyer, on behalf of the accused,
and Adv. Stellenberg,
on behalf of the state, addressed me on the issue of sentence.
[2] The
accused has been convicted of an offence referred to in Part II of
Schedule 2 of the Criminal Law Amendment Act 105 of 1997
(‘the
Act’). He is a first offender. The prescribed sentence, in
terms of ss 51(2)(a)(i) of the Act, is one of imprisonment
for a
period not less than fifteen years, unless substantial and compelling
circumstances within the meaning of ss 51(3) exist,
which justify the
imposition of a lesser sentence. In considering whether or not
substantial and compelling circumstances exist
which would justify
the imposition of a lesser sentence than the one prescribed, the
traditional objectives of punishment –
prevention, retribution,
deterrence, and rehabilitation - apply, and I am enjoined to weigh
the personal circumstances of the accused
against the crime committed
by him and the interests of society.
[3] The
accused committed a serious crime. Our country at present suffers an
unacceptable and distressing incidence of violence
and the community
demands that courts deal firmly and severely with such offenders and
for appropriately severe punishments to
be imposed for a crime such
as the one of murder which has been committed by the accused.
[4] The
personal history and circumstances of the accused are set out in the
pre-sentence report (exhibit ‘K’), and
are not in
dispute. I mention only a few salient aspects of his personal
history and circumstances. The accused was born on 29
June 1971 and
is presently 38 years of age. He was raised by his mother, because
his father passed away when he was only two years
old. He had a good
upbringing. He matriculated at Mashobela High School in 1994. He
was not able to pursue tertiary education
due to financial
constraints. The accused and his wife, Rosinah, married in 1997.
They have two children, M, who is 16 years
of age and a grade 12
pupil, and K, who is two years of age. The accused is a family man
and actively involved in the upbringing
of his children. He is the
main breadwinner. His wife, Rosinah, is also employed and earns a
monthly salary of R3, 300.00. The
accused also has two children from
a previous relationship, namely D, who is 19 years old, and E, who is
16 years old, both of
whom are attending school. D and E are in the
custody of their maternal family, but the accused contributes
financially to their
maintenance.
[5] The
accused has been employed by Guard Track (Pty) Ltd since 15 July
1999. Mr. D. Burton, who owns the company, gave the accused
an
excellent testimonial when he testified. The accused worked his way
up from messenger into a key position in the company.
The accused is
one of only three members of staff. He bears technical and various
other responsibilities. He works independently
and is considered
diligent, honest, polite, and trustworthy. Mr. Burton testified that
it will be a great loss to the company
if the accused is incarcerated
and he will be difficult to replace. It is stated in the
pre-sentence report (exhibit ‘K’)
that the accused earns
a basic monthly salary of R5, 500.00 and that he makes up to R8,
000.00 through overtime.
[6] I
conclude, and this was in my view correctly conceded by Adv.
Stellenberg, that the accused has been exemplary in his personal
life
and in his employment. He is a first offender and he stayed on the
correct side of the law until he was 36 years of age.
The finding of
dolus
eventualis
should also be acknowledged as mitigating in this instance. It is
accepted that there was some unresolved issue between the accused
and
the deceased. The accused’s main aim was to take the deceased
to the police station.
[7] The
accused essentially testified in order to take issue with the
statement of the Probation Officer, Mr. Makhubele, that he
does not
show any remorse, which is a negative prognosis for rehabilitation,
and in order to proclaim his innocence. I am satisfied
that the
accused has not shown any sincere remorse. I nevertheless accept
that rehabilitation is a process and, given the accused’s
age,
personal history, and employment achievements, that rehabilitation
for him is a real prospect.
[8] The
personal circumstances of the accused and the other mitigating
factors that I have mentioned cumulatively amount to substantial
and
compelling circumstances within the meaning of the Act when balanced
against the seriousness of the crime committed and the
legitimate
interests of society.
[9] A
lengthy custodial sentence, however, is warranted. The seriousness
of the crime committed by the accused would in my view
have called
for a term of imprisonment in excess of the prescribed minimum period
of fifteen years had it not been for the personal
circumstances of
the accused and the other mitigating factors in his favour.
[10] In
the result, the accused is sentenced to imprisonment for a period of
twelve years pursuant to his conviction of murder.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
28
May 2010